From the Publisher—Special Issue on Recovery From Opioid Addiction

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For six decades methadone maintenance has been an approved treatment for opioid addiction. People who are taking methadone are no different from those who manage their diabetes by taking insulin: they are in recovery. Yet some policymakers—and even some medical, and yes, some addiction authorities—don’t believe it. Although that may change as more and more professionals buy into the scientific fact that addiction is a brain disease, and therefore it can be treated, and people can recover from it.

The federal government, from the Substance Abuse and Mental Health Services Administration (SAMHSA) to the Office of National Drug Control Policy (ONDCP), states that medication-assisted treatment (MAT) is recovery. In this issue, we write about a comprehensive literature review funded by SAMHSA demonstrating the efficacy of MAT. And we cover an article by William L. White describing the stigma and other obstacles methadone patients face when joining 12-step groups—and the important role these groups could play in helping patients in recovery. We also interview Walter Ginter, peer, patient, and advocate, who spoke before the ONDCP in December on the topic of recovery and MAT. Mr. Ginter, a methadone patient in long-term recovery, is an articulate spokesman for methadone and for patients, helping to guide peer services across the country from his position at MARS, in New York City. We also interview Zac Talbott, based in the less-welcoming South, about his work as an advocate.

Not all of the news is good: In New Jersey, a state that strongly endorses methadone as a treatment for opioid-dependent pregnant women, a woman is facing child abuse and neglect charges simply for being in a methadone program while pregnant. The Supreme Court is due to hear the case, and legal and medical authorities are hopeful that the court will not in effect ban MAT for pregnant women. The woman was in recovery, doing the right thing for herself and her baby, yet was reported, and was held by a lower court to have committed child abuse and neglect by being on methadone while pregnant. On the bright side, the best legal and medical minds who know about MAT have filed a friend of the court brief on the mother’s behalf.

In Philadelphia, where AT Forum attended the AATOD conference last fall, recovery transformation is happening in a solid way, moving from treating addiction as an acute episode to a continuum instead, in which someone enters recovery as a person, not a patient. Roland Lamb discusses efforts to help opioid treatment programs (OTPs) provide what is needed for recovery, with more of a focus on the person than on the dosage and the monitoring. Methadone is a way to recovery—that’s why it was created—but the person taking it is the point of recovery.

Finally, a new evidence-based document from ASAM provides guidance for safe methadone induction and stabilization in OTP patients. This is the first time this vital information has been brought together in one place. Our article by Stewart Leavitt is recommended reading for everyone interested in methadone maintenance treatment.

I hope you enjoy this issue, and we look forward to your comments and feedback.

Sue Emerson
Publisher

OTP Victory in Berwyn Hoped to Discourage Other Localities From Discriminating

The city of Berwyn, Illinois will never pick a fight with an opioid treatment program (OTP) again. In July, it settled with Elizabeth Buonauro and Sal Sottile, current owners of an OTP in Evanston, Illinois that will now be allowed to open a second clinic in Berwyn, for $650,000. The saga is one of discrimination against methadone patients, of the illegality of that discrimination, and of the foolhardiness of localities in persisting in that discrimination to the point of fiscal irresponsibility. At the root of that foolhardiness is the craven fear of politicians that they will lose their jobs if they don’t do what voters want—even if they know the voters are wrong.

The Berwyn City Council first voted in 2008 to allow the clinic to open in a medical building, but NIMBY (Not In My Back Yard) -ism soon crept in, with residents opposing it. The City Council reversed their decision. In November of 2008, the clinic’s owners sued the city.

The Americans with Disabilities Act (ADA) is a powerful ally of OTPs. When authorities so obviously target people in treatment for drug addiction—a specifically protected class under the federal law—they really have no defense, and if they are taken to court, they inevitably lose. This was seen last year in Warren, Maine, when CRC Health Group won its battle for an OTP there, and the town’s insurance company had to pay $320,000.

“The court’s decision that the City of Berwyn violated federal anti-discrimination laws is the latest of a string of federal court decisions holding that zoning out methadone programs violates federal law,” said Sally Friedman, legal director of the Legal Action Center. “What’s striking about this case is the substantial $650,000 settlement.  This large sum of money should awaken other municipalities to the fact that that discrimination is costly, as well as illegal.”

Between its first vote and the second, Berwyn Council members were pressured by residents to keep the OTP from opening. Knowing that a lawsuit was possible, and that the city had no legal grounds to stand on, the Berwyn Council members nevertheless gave in to residents, who said that the OTP would lower their property values and bring crime into the neighborhood. In April of 2011, the city denied the clinic a business license, even though it had passed all zoning requirements.

The Ruling

The ruling by Judge Sharon Johnson Coleman of U.S. District Court on May 11 held that Berwyn violated the ADA when it passed an ordinance banning OTPs. The ordinance was illegal, because of “the city’s ongoing discriminatory intent in the zoning decisions,” Judge Coleman noted.

“Federal courts have consistently held that a municipality violates the [ADA] by subjecting a substance abuse clinic to differential zoning treatment because of its association with individuals recovering from an addiction. There is ample evidence that Berwyn’s zoning decisions regarding the plaintiffs’ clinic were motivated by an intent to treat its clients differently from other medical patients.”

Key to the case was a video tape in 2008 in which city aldermen clearly perceived that they might lose their seats if they voted for the clinic. “The reactions of (Fourth Ward Alderman) Michele Skryd, (then-Seventh Ward Alderman and now Mayor) Robert Lovero, and (First Ward Alderman) Nona Chapman to the community’s hostility towards the clinic in 2008 are evidence of a perceived voter animus so strong that it could only be ignored at the council’s political peril in later years,” Judge Coleman wrote.

The judge ordered that Berwyn pay the OTP’s legal fees, issue a business license, and not block the clinic with any zoning changes.

But as of September 4 Ms. Buonauro still did not have a business license – Berwyn was stalling, even though the judge said to “immediately” grant the license, she said. “I pay the lease but I don’t have a key, I don’t want the liability,” she said. “I’m not going to do a buildout and have Berwyn do something else to me.”

It was a long 4 ½ years, and now there is a victory, but the battle isn’t over for Ms. Buonauro. “They talk about NIMBY,” she told AT Forum. “This is my back yard. I live within 2 blocks.” However, she proudly describes the facility is perfect,–the second story of a bank building, with a rear entrance for privacy for patients, and other medical offices in the building.

Judge Coleman also said that ordinances and zoning rules designed to keep OTPs out of municipalities are illegal, a ruling that will hold for much of Illinois. (The ruling, while in federal court, applies only in the district that it covered.) “A zoning provision that discriminates against methadone clinics violates the ADA even if it merely provides a location restriction rather than an outright ban, and even if the provisions offer a process for relief from that restriction,” the ruling stated.

The decision to settle the lawsuit was made in a 4-3 vote.

Now that there is no chance of a legal appeal by Berwyn, they are finally ready to open their new facility.  It was unclear at press time how many patients the facility would have or when it would open. “Another program might have given up in the face of the opposition,” said Richard Weisskopf, State Opioid Treatment Authority for Illinois, in an e-mail to AT Forum. “Not Ms. Buonauro!” But it was abundantly clear that where other programs might have given up in the face of the opposition, Liz Buonauro would not. And this perseverance paid off, for herself and her patients.

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.

Legality of Denying Access to Medication Assisted Treatment in the Criminal Justice System

This report examines the prevalence of opiate addiction in the criminal justice system, its devastating consequences, and the widespread denial of access to one of its most effective forms of treatment: medication assisted treatment (MAT). The report then analyzes the circumstances in which the denial of MAT violates Federal anti-discrimination laws and the United States Constitution.

http://www.lac.org/doc_library/lac/publications/MAT_Report_FINAL_12-1-2011.pdf

Source: Legal Action Center – December 1, 2011

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

EEOC Sues Employer for Discriminating Against Methadone Patient

The federal agency charged with keeping discrimination out of the workplace has good news for methadone patients in medication-assisted treatment. In a lawsuit filed last summer by the U.S. Equal Employment Opportunity Commission (EEOC) against United Insurance, a Chicago-based company, the federal government is fighting for the rights of people in methadone treatment for opioid dependence. According to the complaint, United Insurance offered a position as an agent to Craig Burns, who has been in methadone treatment since 2004. The job offer was contingent upon his passing a drug test; Mr. Burns’ test indicated that he had methadone in his system.

Mr. Burns’ treatment provider gave him a letter for the company saying that he was in treatment and taking a legally prescribed medication. When the company got that information, it withdrew the job offer, according to the EEOC, which charges that United Insurance violated the Americans with Disabilities Act (ADA).

Past Drug Addiction is a Protected Disability Under the ADA

The EEOC sued United Insurance in the U.S. District Court for the Eastern District of North Carolina. “It is unfortunate that many employers still deny the opportunity for work to people who are ready and able simply because of inaccurate perceptions of disabilities,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District, in a press statement in August. “Employers’ decisions are often based on irrational fears or stereotypes about individuals with a record of past substance abuse. The EEOC will continue to fight for the rights of people victimized by such prejudices.”

EEOC Sues Capital Healthcare Solutions for Disability Discrimination – Health Care Staffing Firm Refused to Hire HIV-Positive Nursing Aide, Federal Agency Says

A leading national health care staffing firm violated federal law by withdrawing an offer of employment to a certified nursing assistant because she was HIV-positive, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced Oct. 5.

The EEOC charges that Pittsburgh-based Capital Healthcare Solutions, Inc. extended a job offer to an experienced certified nursing assistant but unlawfully rescinded the job offer less than one month later based on his disability. The job offer was conditioned on the nursing assistant passing a medical examination. In the medical form, his doctor noted that the certified nursing assistant was HIV-positive, but was not restricted from performing the required job tasks, so long as “universal precautions,” such as gloves and face masks, were used.

Even though the nursing assistant was well-qualified and able to perform the job, Capital Healthcare Solutions withdrew the job offer and refused to hire him because of his disability or because the company regarded him as disabled, the EEOC said in its lawsuit filed in U.S. District Court for the Western District of Pennsylvania, Civil Action No. 2:11-cv-01249.

Refusing to hire a qualified individual because of his disability, record of disability, or because the employer perceives a person as being disabled violates the Americans With Disabilities Act (ADA). The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking injunctive relief barring the company from engaging in disability discrimination in hiring, and monetary relief, including back pay, compensatory and punitive damages on behalf of the nursing assistant. The nursing assistant is also represented by the AIDS Law Project of Pennsylvania, a nonprofit, public-interest law firm providing free legal assistance to people with HIV/AIDS and those affected by the epidemic.

“President Barack Obama has charged federal agencies to implement the National HIV/AIDS Strategy, which includes addressing and preventing employment-related discrimination against people living with HIV,” said Philadelphia regional attorney Debra Lawrence. “This case serves as an example of how the EEOC will strongly enforce federal laws to ensure that qualified people are not wrongfully deprived of an opportunity to earn a living simply because of their HIV status.”

http://www.eeoc.gov/eeoc/newsroom/release/10-5-11a.cfm

Source: U.S. Equal Employment Opportunity Commission – October 5, 2011

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