I. Introduction
The unethical, separate, and unequal system of health care for people with substance use disorder (SUD), a condition effecting approximately 20 million people each year, 1 is the product of long standing and mutually reinforcing systems of racism and ableism in the U.S.Reference Gunn 2 Addiction exceptionalism in health care access, coverage,Reference Tovino 3 and treatmentReference Dineen and Pendo 4 devastate the health and wellbeing of people with SUD and disproportionately harm people of color.Reference Stahler, Mennis and Baron 5 Beyond traditional health care settings, the experiences of daily life for people with SUD — especially people of color with SUD — are informed by profound epistemic, racial, and disability injustice that compound these harms. Legal norms that further this injustice include prohibitionist drug policies that selectively criminalize drug use and possession;Reference Earp 6 racist policing, enforcement, and sentencing in the criminal legal system;Reference Davis 7 refusals by drug courts and in carceral setting to allow appropriate medical care for people with SUD;Reference Andraka-Christou 8 child welfare law enforcement targeting Black pregnant women who use drugs;Reference Roberts 9 and continued efforts to block harm reduction services that effectively reduce morbidity and mortality from drug use made risky by prohibition.Reference Beletsky and Goulka 10 Across these settings, tools of structural oppression combine to subjugate people, especially Black, Latinx, and Indigenous people who use drugs, including those with SUD.Reference Hart 11
Over 30 years ago, Kimberlé Crenshaw coined the term “intersectionality” to capture forms of oppression that overlap and compound across multiple identities.Reference Crenshaw 12 Disability studies scholars have combined critical theories of race, gender, and disability in interesting ways, often with a focus on education and school discipline.Reference Asch 13 A growing number of legal scholars have explored race and disability discrimination using different approaches.Reference Harris 14 An intersectional scholarly approach focuses on the unique and compounded harms of oppression experienced by people who are members of two or more marginalized groups (e.g., a Black woman with a disability). Rather than addressing each marginalized identity separately,Reference Frederick and Shifrer 15 this approach employs critical theories to explore “how race and disability were co-constituted, informed and motivated by the intent to not only to uphold racial hierarchy/white supremacy, but also uphold the related racial project of ableism.”Reference Morgan 16 For example, scholars and advocates have engaged disability critical race theory (DisCrit) to explore unique disadvantages at the intersection of race and disability in educationReference Annamma, Ferri and Connor 17 police encounters,Reference Nelson 18 prison litigation,Reference Morgan 19 immigration law,Reference Kashyap 20 and employment discrimination.Reference Abrokwa 21 Less academic attention has been paid to the unique disadvantages at the intersection of race and disability in health care. This may be due in part to a lack of information and data. A 2019 report published by the National Academies, Compounded Disparities: Health Equity at the Intersection of Disability, Race, and Ethnicity, summarized the available evidence while noting that “research on health and health disparities at the intersection of disability and race/ethnicity is very limited.”Reference Yee 22
A small but growing body of research highlights specific compounded disadvantages experienced by people of color with disabilities, people who are “multiply marginalized.” We know that intersections with race, ethnicity, gender, LGBTQIA+ status, and other characteristics intensify certain health inequities experienced by people with disabilities … These intersectional health inequities are reflected in the disproportionate harms during the COVID-19 pandemic, including among multiply marginalized people with SUD. There is a need for additional research focusing on the health care experiences and outcomes of people with disabilities in disadvantaged racial and ethnic groups, as well as further interrogation of the relationship between white supremacy, ableism, and the treatment of people with SUD.
Here, we examine the unique disadvantages experienced by Black people and other people of color with SUD in health care, 23 and argue that the intersectional approach we describe above to enforcement of disability rights laws offers an opportunity to ameliorate some of the harms of oppression to this population. 24 Although disability rights law does not explicitly address intersectional discrimination, specific features of the laws are well-suited to address the particular forms of discrimination and disadvantage experienced by people of color with SUD. These laws extend to individuals who are excluded or denied health care services based on SUD, as well as individuals who are victims of widespread but incorrect and often racialized assumptions about SUD or stigma based on a past SUD. These laws consistently require individualized assessment based on objective medical or scientific evidence which has the potential to interrupt racial and ableist bias and assumptions related to SUD. Finally, disability laws can be used to challenge multiple modes of discrimination, including intentional discrimination, segregation, and failure to accommodate people, as well as policies and practices that have a disparate impact on people of color with SUD.
II. Structural Racism, Ableism, and Health Inequities for People with SUD
Racism and ableism have long worked together as symbiotic oppressive forces, centering and empowering white non-disabled persons and resulting in significant health inequities for people who are members of underserved racial and ethnic groups 25 and for people with disabilities. 26 Structural forces also work to create disability, and scholars have examined social disablement for many who are Black, Latinx, Indigenous, or other people of color.Reference Paul-Emile 27 A small but growing body of research highlights specific compounded disadvantages experienced by people of color with disabilities,Reference Mereish 28 people who are “multiply marginalized.”Reference Dougall 29 We know that intersections with race, ethnicity, gender, LGBTQIA+ status, and other characteristics intensify certain health inequities experienced by people with disabilities; for example, although more research is needed, several studies indicate that people of color with disabilities experience greater inequities in health status and access to health care. 30 These intersectional health inequities are reflected in the disproportionate harms during the COVID-19 pandemic,Reference Yearby and Mohapatra 31 including among multiply marginalized people with SUD.Reference Khatri 32 There is a need for additional research focusing on the health care experiences and outcomes of people with disabilities in disadvantaged racial and ethnic groups, 33 as well as further interrogation of the relationship between white supremacy, ableism, and the treatment of people with SUD. 34
The racism that fuels the ongoing “war on drugs” enables serious inequities for people of color with SUD in accessing treatment at all, much less standard of care treatment.Reference Lagisetty 35 The mutually reinforcing systems of white supremacy and ableism created and support constructions of people who use drugs, especially people of color who use drugs, as deviant and damaged to justify their segregation, criminalization, surveillance, and denials of legal protections.Reference Mendoza 36 If they manage to access care, racialized minorities who use drugs report high levels of interpersonal discrimination in health care settings.Reference McKnight 37 They are more likely to become entangled with law enforcement than offered tools for safe drug use, medical care, or community supports. Exclusion from civil rights protections of laws like the Fair Housing Act and the Americans with Disabilities Act (ADA) is also common, negatively impacting social determinants of health. 38
In fact, U.S. drug policy is a centuries long white supremacy project,Reference Provine 39 and the Controlled Substances Act and its progeny has disproportionately harmed Black communities and other communities of color.Reference Akbar 40 This is by design.Reference Andraka-Christou 41 Despite equivalent rates of drug use and SUD among racialized groups, non-white individuals are disproportionately arrested, sentenced, and incarcerated, Reference Camplain 42 and incarceration itself keeps multiply marginalized individuals from completing community-based SUD treatment at disproportionate rates.Reference Pro 43
Entanglement in the criminal legal system may in fact cause more substance use, harm, and even death. According to Taleed El-Sabawi and Jennifer Carroll,
Among individuals with a history of substance use, for example, law enforcement interaction is known to be positively associated with the initiation of substance injection. Incarceration is known to be positively associated with both fatal and non-fatal overdose, and the growing evidence base is congruent with the hypothesis that this relationship is causal (meaning that incarceration most likely causes new overdose events directly, not simply that people more likely to overdose are also more likely to become incarcerated at some point). 44
Racism in SUD treatment access and quality persists in the criminal legal system, and non-evidence-based approaches dominate.Reference Kerrison 45 Among the people with opioid use disorder (OUD) in diversionary programs who get “referred” for treatment, less than five percent receive the standard of care treatment, i.e., medication for opioid use disorder (MOUD).Reference Krawczyk 46 Even then, one study found that white defendants were more than twice as likely as Black defendants to have their treatment paid for by the court.Reference Sanmartin 47
Incarceration and post-incarceration periods are also dangerous for multiply marginalized people with SUD. In addition to a lack of access to treatment, harm reduction, and the increased infectious disease risks while incarcerated,Reference Macalino 48 the period after incarceration can be deadly.Reference Rowell-Curisolo 49 Those with OUD who do not receive MOUD or are released with no treatment continuation die at rates as high as 129-fold that of the general population in the two weeks following release.Reference Binswanger 50 As Jamelia Morgan has explained, however, that while carceral settings are “particularly dangerous and damaging for people with disabilities, it is precisely because of the their disability that the [ADA], where enforced, has the potential to protect them.”Reference Morgan 51 A handful of recent legal victories have opened the door to more appropriate treatment of some people with SUD in carceral settings; 52 however, involvement in the criminal legal system almost universally continues to harm people with SUD.
The criminal legal system also intrudes into the regulation of medicine and combines with institutional and individual discrimination in health care to produce serious and deadly consequences for multiply marginalized people with SUD as well as those perceived to have a SUD, such as those with persistent pain who may benefit from prescription opioids. The care of people with SUD is legally segregated from and more extensively regulated than the rest of medicine, including enhanced criminal surveillance of health care providers and patients alike.Reference Oliva 53 MOUD treatment is governed by distinct regulatory regimes — where methadone is dispensed only through separate Opioid Treatment Programs (also known as methadone clinics) 54 and the prescription of buprenorphine for addiction is less regulated but still requires additional prescribing permissions (known as a DATA waiver), patient limits, and data collection. 55 Interestingly, the exact same medications, at the same or even higher doses, can be prescribed in the same way as any other drugs as long as they are being prescribed for a condition other than addiction, such as persistent pain. Even then, white patients are far more likely to receive appropriate treatment with prescription medications for their pain. For example, in a recent meta-analysis, Black patients and Hispanic patients were 36% and 30% less likely to receive treatment for acute pain in the emergency department than similarly situated white patients.Reference Lee 56 For those on long-term opioids for persistent pain, Black patients are more likely than white patients to be surveilled with regular urine drug testing and more likely to have their medications unilaterally discontinued following a concerning drug test.Reference Gaither 57 Practically, the expansion of prescribing surveillance and law enforcement scrutiny make these providers and patients targets as well.
Providers willing to treat people with SUD or persistent pain are operating at the boundary of health care and criminal law. They do so with tangible personal risk, as prescribers in several federal circuits may face imprisonment for nothing more than mistaken or negligent prescribing for pain or SUD. 58 The “lucky” few patients who manage to access medical care for these conditions are subjected to trickle-down surveillance as a condition of receiving care because of myriad legal requirements combined with providers’ overzealous compliance and risk management practices.Reference Dineen and DuBois 59
The deterrent effect of prescribing surveillance and the salience of the recent “opioid crisis” combine powerfully with other mutually reinforcing systems of discrimination to leave people with SUDReference van Boekel 60 and persistent pain discounted, mistreated, and untreated across a range of settings, 61 a reality even more common for multiply marginalized people of color with these conditions. 62 People die as a result. For example, the extensive non-evidence-based laws and policies to curtail only prescription opioid use resulted in provider abandonment and avoidance of people with persistent pain and SUD, shifting many to the much riskier illicit supply, with an overall increase in overdose deaths, albeit from illicit rather than prescription substances. 63 Despite constructions of opioid-related overdoses as harming mostly white people, overdose rates among Black people have increased by approximately 40 percent while rates among other populations have remained stable,Reference Larochelle 64 a trend that continued during the COVID-19 pandemic.Reference Khatri 65 Others died by suicide — a problem significant enough to prompt new warnings for prescribers from the Food and Drug Administration against too rapid and involuntary discontinuations of prescribed opioids. 66
At the same time, health care providers routinely ignore SUD and related treatment needs. While SUD is highly treatable and affects upwards of 20 percent of patients in many health care setting,Reference McLellan 67 most patients are never screened, assessed, or treated for SUD.Reference McNeely 68 In acute care settings, even those hospitalized because of drug use are simply treated for the complications of drug use while their underlying SUD is ignored. For example, people with SUD who are hospitalized with injection drug-related infections (e.g., endocarditis) are typically left to suffer through painful withdrawal,Reference Kimmel 69 while providers treat only the infection. There is some limited evidence of racial bias in these treatment decisions as well.Reference Serota 70
Health care providers often surveil and stigmatize hospitalized patients with SUD,Reference Jalay 71 center the patient as the cause of their own suffering, and characterize them as irrational and defective — leading to disproportionate numbers of people with SUD leaving the hospital against medical advice.Reference Simon 72 Even the majority of people hospitalized for a life-threatening overdose are discharged without treatment or referral for SUD treatment, and the rates are even worse for women and Black and Hispanic patients.Reference Kilaru 73 Instead, only the immediate physical instability is addressed, usually by treating the life-threatening respiratory depression with an opioid antagonist (e.g., Naloxone),Reference Johns 74 and the patient is observed and discharged without any SUD receipt or referrals for standard of care treatment (e.g., MOUD).Reference Reichheld 75 This is not only a missed opportunity to provide appropriate care. It is also a deadly practice. The reversal agent corrects the respiratory depression by displacing the opioids from the patient’s opioid receptors, placing the recipient in painful withdrawal,Reference Johns 76 setting them up to use again to relieve the symptoms. People who survive an overdose have a rate of death in the following year 24 times higher than the general population,Reference Olfson 77 and about a quarter of people discharged from the emergency department die within a month — with the highest risk of death within 48 hours of discharge.Reference Weiner 78 Initiation of methadone or buprenorphine can cut the mortality risk in half,Reference Santo 79 which nearly every prescriber can administer for up to 72 hours, 80 even without a DATA waiver or special certificate of registration to dispense methadone. 81
Thanks to structural, institutional, and individual discrimination, most health care providers do not see those with SUD as whole people worthy of respect and patient-centered care. They certainly do not regard treating a SUD as their problem thanks to the legal isolation of addiction medicine from the rest of health care, which impacts the multiply marginalized people with SUD profoundly. The de-medicalization of addiction and the segregation of addiction care began in earnest after the passage of the Harrison Narcotic Act in 1914 and subsequent Supreme Court cases declared addiction treatment was not the “legitimate practice of medicine.”Reference Musto 82 This quickly left people with SUD without professional treatment options outside of a few government run “narcotic farms” that targeted marginalized groups. 83 The void was filled by individuals and organizations offering “treatments” ranging from self-help groups with limited evidence of effectiveness,Reference Humphreys 84 to much more malicious and unregulated practices with a trail of traumatized and even dead former “clients.” 85 For example, people with SUD who receive rapid detoxification or pay tens of thousands of dollars for abstinence only treatments for opioid and polysubstance use disorders are at higher risk of death after these “treatments” than if they had received no “treatment” at all.Reference Friedmann and Suzuki 86
In the case of people with OUD, the lucky 20 percent of people who manage to access appropriate care are presented with extraordinary barriers to initiation and continuation that are designed to cause “failures,” especially for the multiply marginalized.Reference generally 87 People of color are less likely to receive MOUD, and those that do are less likely than white people with OUD to receive buprenorphine,Reference Lagisetty 88 which has fewer barriers to access and retention in treatment than methadone. Multiply marginalized groups are also more likely to live in areas without adequate access to buprenorphine prescribers.Reference Goedel 89 These are not benign differences. Both methadone and buprenorphine are extremely effective treatments — more effective than the best available therapies for many other health conditions. 90 However, receiving methadone requires people with OUD to meet far more stringent criteria for access and retention in therapy, an active SUD for a full year prior to enrollment with few exceptions, 91 random drug screenings, 92 required counseling and detoxification, 93 and daily visits to the clinic for supervised medication ingestion — regardless of their access to transportation or conflicting work or caregiving responsibilities. 94 Methadone also carries more drug risks and produces more severe withdrawal symptoms than buprenorphine for patients who miss doses. Of the available MOUDs, methadone is the most stigmatized, and has a troubling history as a purported means of control of multiply marginalized people with SUD.Reference Andraka-Christou 95 For these populations, the intersection of the disability of SUD and race, among other marginalized identities, creates significant harms for which structural changes are required.
III. Distinctive Features of Disability Law and the Compound Disadvantages of People of Color with SUD
Federal civil rights laws have been used to address racial discrimination in health care over the last 60 years. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin in programs and activities receiving federal financial assistance. 96 Title VI has been used to challenge forms of intentional discrimination in health care, such as the explicit exclusion of minorities from hospitals and racial segregation in hospital wards.Reference Clark 97 However, it has been less effective at challenging practices or policies with a discriminatory effect or instances of implicit racial bias in the absence of intentional discrimination. This is due, in part, to the Supreme Court’s decision in Sandoval which requires private plaintiffs to show discriminatory intent, as well as a lack of consistent and robust enforcement by the Office for Civil Rights (OCR).Reference Rosenbaum and Teitelbaum 98
Years later, the ADA was enacted to address widespread discrimination against people with disabilities and to ensure integration and equal opportunity in all areas of American life. 99 Title II of the ADA applies to state and local government services, including state Medicaid programs and health care services provided by public hospitals and clinics. 100 Title III covers places of public accommodations, which include private physician’s offices, private hospitals, private nursing homes, and private SUD treatment programs open to the public, regardless of federal funding. 101 The ADA expands the protections of the Rehabilitation Act of 1973, which similar to Title VI prohibits disability discrimination in federal employment and in programs and activities that receive federal financial assistance such as SUD treatment programs, hospitals and health clinics, pharmacies, contracted service providers, medical and dental providers, and nursing homes. 102
Section 1557 of the Affordable Care Act amends the Rehabilitation Act to provide additional protections in certain health care programs, activities, and settings 103 although the scope of its protections is uncertain. 104 Because Section 1557 extends the reach of multiple existing nondiscrimination laws, it has the potential to recognize intersectional discrimination. For example, the 2016 final rule issued by HHS under the Obama Administration noted that Section 1557’s prohibition of discrimination reaches multiple bases of discrimination, for example, “discrimination against an African-American woman could be discrimination on the basis of both race and sex.” 105 The acknowledgement of a distinct and intersectional form of discrimination based on multiple characteristics — a whole that is greater and different than the sum of its parts — echoes judicial decisions under Title VII of the Civil Rights Act of 1964 which prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. 106 For example, in Jefferies v. Harris County Community Action Ass’n, the 5th Circuit recognized that discrimination could exist against the plaintiff based on her distinct experiences in the workplace as a Black woman, regardless of whether those experiences were shared by Black men or white women. 107 However, as observed by civil rights attorney Alice Abrokwa, now Senior Counsel of OCR, courts “have offered little guidance on how to articulate and prove the [Title VII] claims.” 108 Similarly, the mechanism for addressing intersectional claims — as opposed to addressing multiple claims each based on a single characteristic — under Section 1557 or the laws it amends has not been developed.
Recent guidance from the HHS OCR affirmed that people with SUD are protected under the ADA, Rehabilitation Act, and Section 1557 when the condition substantially limits a major life activity (which includes major bodily functions such as neurological and brain functions). Recognition of SUD as an actual disability under the first part of the definition sends an important message that SUD is both a medical condition and a socially constructed disability, and that people with SUD are worthy of the same protections and care we are obligated to provide to people with other disabilities.
As we continue to develop approaches consistent with the view of intersectional discrimination we describe here, strong and consistent enforcement of disability nondiscrimination laws can be used to remove barriers to treatment in health care services and programs and other areas of persistent discrimination against people with SUD, especially those that are multiply marginalized. This section examines specific features of the laws that are particularly well-suited to addressing the distinct forms of discrimination and disadvantage experienced by people of color with SUD.
A. SUD as an Actual and Socially Constructed Disability
The ADA protects individuals with a physical or mental impairment that substantially limits a major life activity, those with a history of an impairment, and those who are regarded as having an impairment. 109 Amendments to the ADA in 2008 clarified the definition of disability should be construed in favor of broad coverage of individuals. 110 Recent guidance from the HHS OCR affirmed that people with SUD are protected under the ADA, Rehabilitation Act, and Section 1557 when the condition substantially limits a major life activity (which includes major bodily functions such as neurological and brain functions). 111 Recognition of SUD as an actual disability under the first part of the definition sends an important message that SUD is both a medical condition and a socially constructed disability, 112 and that people with SUD are worthy of the same protections and care we are obligated to provide to people with other disabilities.
The ADA extends protections to individuals who are victims of widespread but incorrect assumptions about SUD or stigma based on a past SUD, reflecting the social model of disability which recognizes disability as a social construct rather than simply a biological trait of the individual. It is a rejection of what Morgan describes as the centering of the harms experienced by people with SUD “in the bodies and minds of the [individual]… rather than in the systems and structures that contribute to their disablement.” 113 The “regarded as” prong protects people who are incorrectly assumed to be using unlawful drugs (but who are not in fact using drugs), 114 as well as people taking lawfully prescribed opioids for treatment of persistant pain or another medical condition who are incorrectly assumed to have a SUD — both common errors supported by racialized and ableist framing of drug use and drug users. 115 The ADA’s protections for people with a history of SUD are reinforced by a new nondiscrimination provision in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) 116 that prohibits discriminatory use by recipients of disclosed SUD treatment information in areas including health care; employment and receipt of worker’s compensation; rental or sale of housing; access to courts; and social services and benefits funded by federal, state, or local governments.Reference Dineen and Pendo 117
Of course, this expansive view of protections for people with SUD is undercut by the ADA’s explicit exclusion of individuals who are currently engaged in the illegal use of drugs, 118 itself a form of structural discrimination that further compounds existing racism in drug policy. Some scholars (including the authors) have argued that the harmful and unnecessary exclusion for current illegal use of drugs should be removed from the ADA and other nondiscrimination laws.Reference Francis 119 Fortunately, under the Rehabilitation Act, current illegal use of drugs is not a basis to deny health services in hospitals and outpatient facilities or services provided in connection with drug rehabilitation, vocational rehabilitation programs and services, and other covered programs and services funded if the individual is otherwise entitled to such services. 120 In addition, as we have written elsewhere, there is no statutory exclusion of current illegal substance users in the new CARES Act protections for individuals whose patient records reveal or appear to reveal current or past SUD. 121
B. Requirement of Individualized, Evidence-Based Assessments
The ADA’s consistent focus on individualized assessment has the potential to interrupt explicit and implicit biases at the intersection of race, disability, and SUD. For example, the ADA allows employers to ask about an employee’s disability if that employee poses a “direct threat” to workplace health and safety, which is defined as a “significant risk of substantial harm to the health or safety of others” that cannot be eliminated or reduced by a reasonable accommodation. 122 Recent enforcement actions by the Equal Employment Opportunity Commission (EEOC) against employers for discrimination against applicants or employees being treated with MOUD or prescription opioids underscore the requirement that employers engage in an individualized assessment of what, if any, impact the medication has on the individual’s ability to perform the job safely, rather than relying on stereotypes or assumptions. 123 The Supreme Court in Bragdon v. Abbott established that assessment of a direct threat must rely on analysis of objective medical scientific evidence, rather than stereotypes or misconceptions, even if held in good faith. 124 EEOC guidance for employers 125 and for health care providers 126 on existing legal protections in the workplace for individuals who are using opioids or individuals with a current or former SUD place similar emphasis on these requirements.
We think of people with SUD as patients, but they are also providers. In health care settings, health care providers with a SUD are often viewed with suspicion and as incapable of performing their professional roles. In many instances, physicians and other professionals are forced to choose between their profession and effective treatment for their own SUD. Participation in physician health programs or similar programs is often a condition of maintaining state licensure and employment for professionals with SUD.Reference Beletsky 127 However, many of those organizations maintain blanket prohibition of medication as part of treatment (including MOUD) under the unexamined presumption that those medications render these providers less safe, an assumption based on the enduring legacy of stigma and addiction exceptionalism rather than available evidence. 128 MOUD is also associated with lower employee health care and productivity costs for employers in other settings.Reference Mosher Henke 129 Not only are these bans expensive for all involved, the alternative “treatments” require near constant surveillance of the provider — in the form of frequent random drug screenings and even full time “monitors” in the workplace. Several scholars have noted that the programs’ blanket MOUD prohibitions and other practices violate the ADA, 130 but this has yet to be tested in practice.
Decisions about accommodation of disability in health care settings also calls for individualized assessment. The ADA and the Rehabilitation Act require health care providers, systems, and institutions to make reasonable “accommodations” to ensure that people with disabilities have equal opportunities to benefit from health care programs, services, and facilities. 131 A reasonable accommodation for an individual with a SUD in long-term care might include, for example, making arrangements with the patient’s Opioid Treatment Program or the patient’s DATA waived buprenorphine prescriber to avoid an interruption in their MOUD therapy. 132 In acute care settings, hospitals should have, at a minimum, DATA waivered clinicians available to offer and continue MOUD and ideally, an addiction medicine consult service to provide appropriate, individualized care. Accommodation decisions should be collaborative, focused on the patient’s specific needs, and should always include consideration of patient preferences and perspectives. 133 Focus on the patient’s specific needs, preferences and perspectives provides space to consider the role of race, gender, and other characteristics in formulating an appropriate response. 134 However, the first national study of physician knowledge of the ADA suggests that less than one-third of practicing physicians know who is responsible for making decisions about disability accommodations.Reference Iezzoni 135
C. Multiple Modes of Discrimination
The ADA provides tools to address different forms of discrimination that obstruct access to health care services and programs and cause needless suffering for people with SUD. The ADA addresses disparate treatment, or intentional discrimination because of disability, as health care providers and institutions cannot exclude or deny services to people based on disability. 136 Studies of practicing physicians suggest that most physicians understand this obligation,Reference Agaronnik 137 although we know that exclusions and refusals to treat based on SUD and other disabilities persist. Recent DOJ settlements with primary care providers, 138 specialists, 139 skilled nursing facilities, 140 and organ transplant programs 141 illustrate the persistence of refusals to provide health care services to patients who are receiving MOUDs.
The ADA also requires that people with SUD be treated in integrated settings. The Supreme Court’s decision in Olmstead v. L.C. 142 established that unnecessary segregation of people with disabilities constitutes discrimination in violation of Title II of the ADA. This means that people with SUD cannot be shunted into separate health care settings or programs unless a separate setting is the most integrated setting appropriate to the needs of the patient. As noted above, people with SUD can also use disability nondiscrimination laws to challenge failure to accommodate their disability-related needs as a justification for segregation.
Disability nondiscrimination laws can also be used in the absence of evidence of intentional discrimination to challenge policies and practices with a disparate impact on people with SUD. The Supreme Court in Alexander v. Choate assumed the availability of disparate impact claims under the Rehabilitation Act. 143 However, it further held that the requirements of the law are met when individuals with disabilities are provided “meaningful access” to programs, services, and activities.Reference Francis and Silvers 144 There is also uncertainty as to whether a claim of disparate impact based on disability requires a showing of intent (e.g., “deliberate indifference”). Some courts have borrowed the analysis of intent from Title VI, while others have not.Reference Weber 145
D. Enforcement Efforts and Education
Disability nondiscrimination laws are powerful tools to address stigma and discrimination against people with SUD, but enforcement of these laws, including public enforcement of the nondiscrimination requirements of the ADA, Rehabilitation Act, Section 1557, and the CARES Act must be robust and equitable. Many experts claim that the ADA and Section 504 are underenforced, and the promises of these laws have yet to be realized, especially in health care settings. 146 Others have described how the ADA’s enforcement has not led to “equal access, social inclusion, and freedom from discrimination … particularly[for] multiply marginalized disabled People of Color.” 147 We note that outside of the employment context, enforcement of the ADA for discrimination against people with SUD was non-existent until a few years ago, despite the long-standing protections in the law. Anything but robust and equitable enforcement of disability nondiscrimination laws furthers able-bodied and white supremacist ideologies.Reference Yearby 148 The recent trend toward enforcement of protections for people with SUD must continue.
Enforcement efforts must include education. The DOJ has worked to provide education about the protection of people with SUD under existing law in health care settings. 149 In 2018, OCR launched a public education campaign 150 aimed at increasing access to evidence-based treatments, including MOUD, by clarifying the federal civil rights protections 151 for people with SUD and providing specific guidance in the context of OUD. 152 Continued educational initiatives about the pervasive discrimination faced by people with SUD and new and existing nondiscrimination requirements are needed. In particular, health care providers, institutions, and systems need education about SUD as a disability, barriers to care for people with SUD, and compounded inequities for multiply marginalized people with SUD, along with the existing civil rights protections that protect and promote accessible health care for individuals with disabilities.Reference Agaronnik 153
Finally, collecting better data at the federal, state, local, and health systems level that can be disaggregated by disability, race, and other characteristics is critical to understand and address inequities experienced by people with SUD at the intersection of these identities. 154
IV. Conclusion
The compound disadvantages conferred upon people of color with disabilities by the function of structural, institutional, and individual discrimination is an area deserving of more scholarly attention. For people of color with SUD in health care settings, the structural forces of existing criminal, health care, and even disability nondiscrimination laws create profound disadvantages and barriers to humane and appropriate treatment. Nothing short of foundation changes in the criminal legal system, drug policy, and myriad other laws — including removing the exclusion from protection disability nondiscrimination laws of those “currently using illegal drugs” — will afford justice to multiply marginalized people with SUD. In the interim, we have suggested that intersectionality-conscious and robust enforcement of existing protections in the ADA, Rehabilitation Act, Section 1557, and the CARES Act offer the best opportunity for just outcomes for people of color with SUD in health care.
Note
The authors have no conflicts to disclose.
