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Settlement clarifies discrimination for buprenorphine use

May 17, 2018

A Massachusetts skilled nursing facility reached a settlement recently with a U.S. attorney’s office in a pivotal discrimination case. It’s the first known case involving a patient being refused admission based on the patient’s use of buprenorphine for opioid use disorder.

Perhaps more significant is the prevailing position of skilled nursing facilities nationwide refusing buprenorphine patients. Under the Americans with Disabilities Act (ADA), such a patient is considered disabled.

Experts say the settlement provides a practical caution for healthcare providers, indicating that refusing to treat individuals solely based on their addiction disorders will be considered discrimination under ADA.

Sally Friedman, legal director of the Legal Action Center, who has worked with the Department of Justice on ADA violations, says the law doesn’t expect healthcare providers to offer care beyond their expertise or scope of practice. However, it also won’t allow them to discriminate against patients because of their disability.

“Here, the skilled nursing facility refused admission to someone with opioid use disorder because they were receiving treatment with buprenorphine,” Friedman tells Behavioral Healthcare Executive. “The person was otherwise qualified for the service. It was just that one discriminatory variable.”

The Charlwell House facility will pay a civil penalty of $5,000 and agreed to implement non-discrimination training programs. But the settlement could represent larger implications by setting a precedent for all healthcare providers—including those in behavioral health.

Abstinence programs vulnerable

Philosophical clashes in the behavioral health specialty have long pitted abstinence programs against programs using medication assisted treatment (MAT). However, there are no major rulings to provide legal guidance for abstinence programs that systematically refuse treatment for individuals using medications for addiction.

“You could make the argument that that violates ADA, but it’s trickier,” Friedman says. “It’s not the same as the skilled nursing case.”

She believes that depending on the circumstances, there might be room for a discrimination claim if a patient using MAT is refused treatment in a program in which abstinence is a core philosophy, but there’s no indication of how a court might ultimately rule.

Legal risks are a different proposition for recovery homes where the Fair Housing Act might also apply in addition to ADA, Friedman says. Many operators are concerned about diversion and expect individuals living there to remain drug-free as a condition of residency.

“I have not heard a legitimate reason for a recovery home not allowing medication,” she says. “I think they’re vulnerable under law.”

For example, she says, residences could offer reasonable accommodation to store take-home doses of methadone or buprenorphine securely in the home under lock and key. And ADA requires that states, cities and homeowner associations provide “reasonable accommodations” to individuals with disabilities, including those in recovery.

Industry leaders are more vocal now than ever before about the efficacy of MAT, and their influence is having some effect in communities. Just recently, Caron Treatment Centers introduced a stand-alone treatment unit exclusively for patients with opioid use disorders. Leaders informed local recovery residences that if they want to continue to receive referrals from Caron, they must accept and allow the patients to use anti-craving medication post-discharge.

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