Is Maternal Methadone Treatment Child Abuse and Neglect? New Jersey Supreme Court to Weigh In

pregnant woman jpegOne year after the New Jersey Supreme Court ruled that a pregnant woman did not commit child abuse just because she tested positive for cocaine, the state has brought a similar case to the court: that of a pregnant woman who was in methadone treatment in an opioid treatment program (OTP).

This January, experts in addiction treatment and maternal and fetal health filed a friend of the court brief before the New Jersey Supreme Court, urging it to overturn a lower court ruling in which a pregnant woman in a methadone treatment program was charged with child abuse and found guilty.

In the cocaine case, on February 6, 2013, the New Jersey Supreme Court unanimously held that the state’s child protection laws don’t give child welfare authorities control over pregnant women, and that positive drug test results alone on pregnant women and newborns do not establish neglect. That case involved positive test results for cocaine. The Supreme Court held that those positive test results did not by themselves show maternal neglect.

Here’s the situation now: The state wants to call it child abuse if a woman takes prescribed methadone while pregnant. This is despite the fact that the state has a robust system in which methadone is recommended for pregnant women.

The case involves a woman—YN—who was dependent on opioid pain relievers when she learned she was pregnant. Her medical providers recommended that she obtain methadone treatment and other care, which she did, and she subsequently gave birth to a healthy baby. The baby was successfully treated for neonatal abstinence syndrome (NAS), a predictable treatable and transitory, possible side effect of maternal methadone treatment.

But because of the NAS, YN was reported to the Division of Child Protection and Permanency (DCPP, formerly the Division of Youth and Family Services), and was judged by the lower court to have abused or neglected her child. In effect, the lower court is rewriting the law by applying child abuse statutes to pregnant women and their fetuses, according to the friend of the court brief.

Advocates hope that the Supreme Court will rule, as it did last year, in favor of the mother. Lawrence S. Lustberg, of Gibbons P.C., co-counsel for the amici, said that “the New Jersey Supreme Court has been a national leader in recognizing that when cases raise scientific, medical, or other technical issues, the evaluation of these issues must be informed by existing scientific knowledge, including expert testimony.” He added, “This case should not be an exception, yet, the decision in the lower court was reached without the input of a single medical expert and without considering the established science addressing the value of methadone treatment to maternal, fetal, and child health, and other key health and social welfare issues in the case.”

“As a matter of medicine and health care, it is simply nonsensical to regard methadone treatment as a form of child abuse,” said Robert Newman, MD, one of the experts represented in the brief. “Decades of research unequivocally demonstrate the benefits of treating a pregnant woman’s addiction to opioids with methadone, an extraordinarily well-studied medication whose benefits to the mother as well as the baby unquestionably outweigh the treatable and transitory side effects that are sometimes seen in the newborns.” He noted that “It is not recommended that women simply stop using opiates during pregnancy” and that “methadone and other related treatments are acknowledged by national and international governmental, academic, and clinic authorities to be the best choice for maternal, fetal, and child health, reducing risks of miscarriage, stillbirth, and premature birth.”

The bottom line: YN was in recovery. But unless the lower court’s ruling is reversed, New Jersey will effectively be the first state in the country to ban pregnant women from receiving methadone treatment, said Lynn Paltrow, Executive Director of National Advocates for Pregnant Women (NAPW) and co-counsel representing the experts. Not only do the DCPP’s actions “fly in the face of the recommendations of the World Health Organization and the U.S. government, but New Jersey itself, which, through collaborations between the New Jersey Department of Mental Health and Addiction Services and DCPP, provides methadone treatment to pregnant women and families in the child welfare system.”

The Legal Action Center signed on to the amicus brief and strongly supports the NAPW.  “It is wrong, counterproductive, and dangerous to charge a pregnant woman with child abuse simply because she is in a methadone maintenance program,” Sally Friedman, legal director for the Legal Action Center, told AT Forum. “Singling out pregnant women receiving methadone maintenance treatment also can violate anti-discrimination laws.” Ms. Friedman added that child welfare authorities “need to act on the basis of medical evidence, not myths.” The best way for OTPs to make sure that their patients aren’t reported is to educate, added Ms. Friedman.

The mother, YN, is represented by Clara S. Licata and T. Gary Mitchell.

For the friend of the court brief filed January 9, go to http://advocatesforpregnantwomen.org/briefs/DYFS%20v.%20YN%20-%20Amended%20Supplemental%20Brief%20and%20Appendices.pdf

Local Judge Works to Fight Prescription Drug Abuse in Northeast Ohio

Scales of JusticeCuyahoga County Judge David Matia has overseen the county’s drug court for years. In his time working with folks struggling from addiction, he has noticed a disturbing trend.

“Sixty percent of the people in drug court are opiate dependent and of that sixty percent, half got their start by being treated for a medical condition,” said Matia.

According to Matia, research shows that in 1997, the average dosage for opiates was 7 pills. In 2010 that dosage sky rocketed to 67 pills.

http://www.newsnet5.com/dpp/news/local_news/oh_cuyahoga/local-judge-works-to-fight-prescription-drug-abuse-in-northeast-ohio

Source:  NewsNet5.com – June 11, 2012

Harsh Cameron Douglas Sentence Sparks Appeal, Support

Not offered drug treatment, Douglas relapsed while in prison and was caught in possession of a small amount of heroin and Suboxone.

But, unusually, Douglas was also prosecuted for drug possession by a prisoner, and even more unusually, he was hammered hard at sentencing. Federal District Court Judge Richard Berman nearly doubled his original drug trafficking time, sentencing him to an additional 4 ½ years in prison. Prosecutors had asked for at most an additional two years.

“Tacking on more prison time for a person who is addicted to drugs because they relapse behind bars goes against fundamental principles of medicine, inflicts unnecessary suffering and undermines both safety and health,” said Dan Abrahamson, director of legal affairs for the Drug Policy Alliance.  “Such a response only fuels the vicious cycle we see daily across the country of drug-dependent persons being imprisoned while sick, coming out sicker, and then returning to jail even quicker — at huge expense to everyone.”

http://stopthedrugwar.org/chronicle/2012/may/21/harsh_cameron_douglas_sentence_s

Source:  StopTheDrugWar.org  – May 21, 2012

 

Denying Medication-Assisted Treatment (MAT) in the Criminal Justice System—Is It Legal?

Denying access to medication-assisted treatment (MAT) for opioid addiction has been a long-standing practice throughout the criminal justice system, with devastating consequences—unnecessary incarceration, increased spread of HIV, hepatitis, and other infectious diseases; drug overdose, sometimes fatal; and recidivism rather than recovery.

Many arrestees and inmates in U.S. facilities are addicted to opioids, yet a December 2011 report from the Legal Action Center says that the vast majority of jails and prisons fail to offer MAT as ongoing maintenance treatment, even when it’s recommended or prescribed by a treating physician. At an estimated cost of about $4,000 per year, MAT successfully reduces addiction and related criminal activity, allowing people to lead productive lives, support families, and pay taxes—rather than costing taxpayers as much as $40,000 annually for imprisonment.

But some probation and parole agencies prohibit MAT, and courts often require detoxification from methadone or buprenorphine before defendants can complete drug court requirements as an alternative to jail or prison.

The Legal Action Center report, Legality of Denying Access to Medication Assisted Treatment in the  Criminal Justice System, (see link) explains why withholding access to MAT at any level of the criminal justice system—correctional facilities, courts, and parole and probation boards—makes no sense, and can violate federal antidiscrimination laws and the United States Constitution.

For example, the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 prohibit discrimination on the basis of disability, and require that each individual’s ability to take part in specific activities be evaluated objectively. Denying access to MAT at any level of the criminal justice system violates these Acts, whether denial is based on a blanket policy or carried out on a case-by-case basis, but without the required objective, individualized evaluation.

Moreover, jails and prisons that force those receiving MAT to detoxify without proper medical supervision and treatment risk violating the Constitution’s EighthAmendment prohibition on cruel and unusual punishment, or the Fourteenth Amendment Due Process clause. Thus, medical best practices continue to elude the vast majority of those who have an opioid use disorder and are unfortunate enough to come up against the criminal justice system. They’re being forced to taper or go to jail.

Access Denied!

Despite advocates’ attempts to work with judges and probation and parole boards, denied access continues. Some examples:

  • Drug court judges who believe in MAT, but rarely refer people for treatment because they feel pressure from district attorneys.
  • District attorneys concerned with what they view as public safety risks in granting outpatient versus residential treatment, and who regard MAT as having the risk of abuse or diversion.
  • Defense attorneys who have little information about what’s appropriate or needed for their clients, or an understanding of best practices in treating opioid addiction, and aren’t prepared to advocate for medication-assisted treatment.
  • Judges and drug court staff who “have a rule: we just don’t let people stay on methadone and graduate from drug court.”
  • The Federal Bureau of Prisons guidelines for treating opioid addiction that call for medically supervised detoxification (including with methadone), cognitive behavioral therapy, and drug abuse education—but do not recommend methadone maintenance treatment, and prohibit treatment with buprenorphine as maintenance therapy.

AT Forum spoke with Sally Friedman, legal director of the Legal Action Center and author of the Center’s report. Written at the request of the American Association for the Treatment of Opioid Dependence (AATOD), the report is being distributed to government and criminal justice agencies, and to consumer groups and advocacy organizations.

Litigation

“The report has focused significant attention on these discriminatory policies, but litigation is another key strategy to bring about the necessary change,” said Ms. Friedman. “Even a few federal court decisions holding criminal justice agencies liable for denying access to MAT could make a big impact.”

“The Legal Action Center is prepared to bring litigation when we find the right case,” said Ms. Friedman—“someone who’s willing to challenge a criminal justice agency and willing to fight to the end of the litigation. We’d welcome hearing from people who’ve been forced off their addiction medications in order to take part in drug courts or other alternative sentencing programs, or by any other part of the criminal justice system.”

Potential cases may be a successful patient in an opioid treatment program (OTP) with a job and family who is picked up on an old warrant and told to taper or face jail; or one where a physician recommends MAT and the judge demurs. “MAT as a treatment option shouldn’t be off the table because of a judge’s misconception that it’s substituting one addiction for another, or because of overblown concerns about diversion,” Ms. Friedman said. “The point of the ADA and the Rehab Act is that the government should make decisions on the basis of objective medical evidence that applies to that individual, and not on the basis of stereotypes or broad generalizations. ADA case law is quite clear that people must be evaluated individually.”

Criminal justice agencies and courts who deny access to MAT despite a physician’s recommendation generally haven’t faced legal consequences. “Many courts have found that the ADA prohibits employment and zoning discrimination against people who need or receive MAT,” Ms. Friedman pointed out. “But courts have not yet addressed the question of whether the criminal justice system’s failure to provide or permit MAT violates the ADA or Rehabilitation Act. We think now is the time.”

Suggestions for OTPs

Helpful publications and audiovisual presentations from the Legal Action Center include Educating Courts, Other Government Agencies and Employers About Methadone (2009), a PDF explaining how people in MAT can advocate for their rights so they can get in or stay in treatment, without discrimination; and Know Your Rights: Are You in Recovery from Alcohol or Drug Problems? Rights for Individuals on Medication-Assisted Treatment (see link).

If an OTP patient is forced off of methadone or prohibited from enrolling despite the recommendations of a physician, an OTP Director can contact the Legal Action Center (phone: 212-243-1313 or 1-800-223-4044; fax: 212-675-0286; email: lacinfo@lac.org).

About the Legal Action Center

The only nonprofit law and policy organization in the U.S. whose sole mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, the Legal Action Center has for nearly four decades worked to combat stigma and prejudice and to help people reclaim their lives.

Legal Action Center Resources

Legality of Denying Access to Medication Assisted Treatment in the Criminal Justice System.
http://www.lac.org/doc_library/lac/publications/MAT_Report_FINAL_12-1-2011.pdf.
Accessed February 20, 2012.

Know Your Rights: Are You in Recovery from Alcohol or Drug Problems? Rights for Individuals on Medication-Assisted Treatment.
http://www.lac.org/doc_library/lac/publications/Know_Your_Rts_-_MAT_final,_9.28.10.pdf.
Accessed February 20, 2012.

Webinar: Medication-Assisted Treatment: Special Anti-Discrimination Issues.
http://lac.org/index.php/lac/webinar_archive. Accessed February 20, 2012.

Memo on Driving and Psychomotor Studies.
http://www.lac.org/doc_library/lac/publications/mmt-memo_on_driving_and_psychomotor_studies.pdf. Accessed February 20, 2012.

National Association of Criminal Defense Lawyers. http://www.nacdl.org/. Accessed February 20, 2012.

Additional Resources

National Institutes of Health, U.S. Department of Health and Human Services. Principles of Drug Abuse Treatment for Criminal Justice Populations: A Research-Based Guide. Bethesda, MD: National Institute on Drug Abuse. Revised January 2012. NIH Publication No. 06-5316.
http://www.drugabuse.gov/publications/principles-drug-abuse-treatment-criminal-justice-populations. Accessed February 20, 2012.

Whitten L. Prison use of medications for opioid addiction remains low. NIDA Notes, Research Findings. 2011 (July);23(5). http://www.drugabuse.gov/NIDA_notes/NNvol23N5/Prison.html.
Accessed February 20, 2012.

Krantz MJ, Mehler PS. Treating opioid dependence: Growing implications for primary care. Arch Intern Med. 2004;164:277-288. http://archinte.ama-assn.org/cgi/content/abstract/164/3/277.
Accessed February 20, 2012.

Prospective Employer $37,500 for Not Hiring Methadone Patient

The U.S. Equal Employment Opportunity Commission (EEOC) on January 23 announced that the United Insurance Company of America will pay $37,500 to Craig Burns, whom the company refused to hire because his pre-employment drug test was positive for methadone. Mr. Burns, a patient in an opioid treatment program (OTP) since 2004, was offered a job in North Carolina by the insurance company in January 2010, but the job offer was contingent on his passing a drug test. He gave the company a letter from his OTP explaining why his test was positive for methadone, and said that he was taking a legally prescribed medication. When it got the letter, United Insurance withdrew its employment offer.

This was in violation of the Americans with Disabilities Act (ADA), and the EECO sued United Insurance in August 2011 for discriminating against someone with a disability. “The ADA requires employers to make an individualized assessment of whether an individual can do the job rather than relying on fears or stereotypes,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District, which includes the Raleigh Area Office, where the original charge of discrimination was filed. “We are pleased that, in resolving this case, United Insurance is taking action to ensure that it fulfills its obligations under the ADA.”

In addition to paying Mr. Burns $37,500, United Insurance must perform training that covers the legal requirement to conduct an individualized assessment of disability; the appropriate methods of determining whether the employee poses a direct threat; and the obligation to consider an employee’s or applicant’s request for reasonable accommodation.

Mr. Burns had already found employment elsewhere, so getting rehired wasn’t part of the settlement, Ms. Barnes told AT Forum. So while that $37,500 doesn’t sound adequate for not getting a job in these hard times, at least there is one employer that will no longer be violating federal law by discriminating against OTP patients.

For the press release announcing the resolution, go to
http://www.eeoc.gov/eeoc/newsroom/release/1-23-12.cfm. Accessed February 20, 2012.

Also see
http://atforum.com/news/2011/11/eeoc-sues-employer-for-discriminating-against-methadone-patient/. Accessed February 20, 2012.

For the Consent Decree, go to
http://atforum.com/addiction-resources/documents/2012.01.24ConsentDecree.pdf.
Accessed February 20, 2012.

Privacy Protection for Patients with Substance Use Problems: Article Abstract

confidential
Many Americans with substance use problems will have opportunities to receive coordinated health care through the integration of primary care and specialty care for substance use disorders under the Patient Protection and Affordable Care Act of 2010. Sharing of patient health records among care providers is essential to realize the benefits of electronic health records.

Health information exchange through meaningful use of electronic health records can improve health care safety, quality, and efficiency. Implementation of electronic health records and health information exchange presents great opportunities for health care integration, but also makes patient privacy potentially vulnerable. Privacy issues are paramount for patients with substance use problems.

This paper discusses major differences between two federal privacy laws associated with health care for substance use disorders, identifies health care problems created by privacy policies, and describes potential solutions to these problems through technology innovation and policy improvement.

The full article can be accessed free at:  http://dovepress.com/privacy-protection-for-patients-with-substance-use-problems-peer-reviewed-article-SAR

Source: Substance Abuse and Rehabilitation – December 2011 Volume 2011:2(1) 227 – 233.

Employers Helping Workers Fight Opioid Abuse

New York Methadone Clinic Blocked

The director of a methadone treatment trade organization drew a sharp rebuke when he hinted at the possibility of legal action if Glens Falls, New York officials attempt to prevent a methadone treatment center from opening in the city.

Henry Bartlett, executive director of the Committee of Methadone Program Administrators, told the Glens Falls Common Council on Tuesday evening that the city’s lawyers should review previous legal decisions involving the cities of Baltimore, MD, and Reading, PA.

Mr. Bartlett said both decisions centered on the Americans with Disabilities Act and the 14th Amendment to the U.S. Constitution, which addresses equal rights for black people.

http://poststar.com/news/local/methadone-clinic-blocked/article_16113c12-f48b-11e0-850c-001cc4c002e0.html

Source:Glens Falls Post Star – October 12, 2011

Advocates Help New Moms in Methadone Treatment Fight Child Protective Services

advocatesAfter more than 50 years of evidence showing that methadone maintenance (MM) treatment works, the courts—both civil and criminal—are making decisions only a doctor should make, telling patients to stop taking their legally prescribed methadone. These decisions are coming down particularly hard on women, who in some cases are being told by Child Protective Services (CPS) that they have to get off methadone if they want custody of their newborn child.

This happened in a case of a model patient who entered MM treatment, and then found out that she was pregnant. The case, described to AT Forum by Emma Ketteringham, JD, director of legal advocacy for National Advocates for Pregnant Women (NAPW), involved a woman who was stable and doing well in MM treatment. “She did everything right, availing herself of all the services the opioid treatment program (OTP) had to offer, including parenting classes,” says Ms. Ketteringham. Yet when her baby was born, and she told the hospital she was receiving MM treatment, and even showed documentation from the program, someone from the hospital reported her to CPS. This report resulted in an immediate investigation, with the CPS caseworker telling her that she had to go off methadone if she wanted her baby back. She wanted to continue her successful MM treatment and regain custody of her child.

The law is on the side of women in MM treatment in OTPs. It is against the law for the court system—or any other government agency—to single out people in medication-assisted treatment (MAT) and require them to stop taking their medication, or to switch to another medication or another form of treatment, according to the Legal Action Center. If a child welfare caseworker tells a woman that she must stop taking methadone in order to gain custody of her child, this is a violation of the Americans with Disabilities Act (ADA), says Katie O’Neill, JD, senior vice president of the Legal Action Center. The ADA prohibits disability-based discrimination. “People who participate in MM treatment for opiate addiction are considered to be Individuals with a disability, so you cannot legally prohibit someone from receiving that treatment.”

But the job of CPS is to protect infants and children from abuse and neglect. When a newborn is going through the neonatal withdrawal syndrome, a caseworker who is not knowledgeable about methadone treatment may conclude that the mother has “exposed” her newborn to a drug—methadone. The caseworker interprets that as neglect, and threatens the mother with loss of her baby if she stays in MM treatment.

CPS investigations are secret—the person reporting the “neglect” does so anonymously. “We see cases from all over the country where women are threatened with loss of custody orhave had their children removed because they receive MM treatment during pregnancy,” says Ms. Ketteringham. Family court judges who make decisions about custody do sowithout a jury, and in some states, the mother has no attorney or is discouraged from fighting the charges by her own attorney, says Ms. Ketteringham. Family courts “notoriously make decisions relying on claims made by caseworkers rather than on evidence presented by experts,” she adds.

“Many lawyers appointed to represent women facing a loss of custody in family court are not knowledgeable about clinical or legal realities of MM treatment,” adds Ms. O’Neill.

The best way to prevent any problems after the baby is born is communication between the OTP, the hospital where the baby will be delivered, and the obstetrician. “Although the mother should not have to, she should organize advocacy on her behalf before the baby is born,” Ms. Ketteringham says. “She should make sure someone in her program will advocate on her behalf, have the printed or online literature about MM treatment during pregnancy handy, and contact a lawyer or organization that advocates for pregnant women and parents in the child welfare system.”

The model patient, Ms. Ketteringham’s client, eventually won her case, but it took nine months, during which time her baby was in foster care. When AT Forum went to press, the decision in the case had not yet been published, but the judge had returned the baby to the mother. She is still in MM treatment and doing well.

For Additional Reading

MMT and Pregnancy, an AT Forum patient education brochure, available in English and Spanish: http://atforum.com/patient/education_brochures.php#preg.

A newsletter from the National Advocates for Pregnant Women: http://advocatesforpregnantwomen.org/.

Know Your Rights, a brochure from the Legal Action Center on the rights of people in MMT, available in English and Spanish: http://www.lac.org/doc_library/lac/publications/Know_Your_Rts_-_MAT_final,_9.28.10.pdf,

SAMHSA Brochure Pregnant Women 2006.080904-39-5315-04-44[1].pdf: http://atforum.com/addiction-resources/documents/SAMHSAbrochurePregnantWomen2006.080904-39-5315-04-44.pdf

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