Engaging Disability Rights Law to Address the Distinct Harms at the Intersection of Race and Disability for People with Substance Use Disorder

Abstract

This article examines the unique disadvantages experienced by Black people and other people of color with substance use disorder in health care, and argues that an intersectional approach to enforcing disability rights laws offer an opportunity to ameliorate some of the harms of oppression to this population.

Challenging Disability Discrimination in the Clinical Use of PDMP Algorithms

“…Recent guidance from the HHS OCR affirms that people with an SUD are protected under title II of the ADA, the Rehabilitation Act, and section 1557 when the condition substantially limits a major life activity (such as caring for oneself, learning, concentrating, thinking, communicating, or working or the operation of major bodily functions including neurological and brain functions). The U.S. Department of Justice also has affirmed protections for people with an SUD through guidance 20 and via several agreements and settlements with private health care entities covered by title III of the ADA 21 …”

“…Examples include numerous skilled nursing facilities that intentionally exclude people who are being treated for SUDs with medication, primary or specialty care facilities that refuse to accept appointments for prospective patients with SUDs, an orthopedic surgery center that refused treatment to people with SUDs based on concerns about managing postoperative pain, and a transplant center that denied a lung transplant because of the patient's treatment for an SUD. 25 As described above, health care providers and institutions may-and in many cases must-check a patient's PDMP record before prescribing opioids or other controlled substances. Notwithstanding these requirements, health care providers and institutions are responsible for individual and programmatic decisions they make in reliance on information from PDMP algorithms, including patient risk scores.…”

“…The U.S. Department of Justice also has affirmed protections for people with an SUD through guidance 20 and via several agreements and settlements with private health care entities covered by title III of the ADA. 21 These laws also protect people who are incorrectly assumed to have an SUD or who have a history of treatment for one. For example, the "regarded as" prong of the ADA's definition of disability protects people who are incorrectly assumed to be (who, in fact, are not) misusing drugs, as well as people lawfully prescribed opioids or other medications tracked by PDMPs for treatment of chronic pain or another medical condition who are incorrectly assumed to have an SUD.…”

Locating Disability Within a Health Justice Framework

“…Second, by surfacing the particular experiences of people of color with SUD in health care, they argue that an intersectional approach to enforcement grounded in disability rights laws could ameliorate existing inequities. 33 Analytically, the health justice framework complements disability rights and disability justice frameworks by focusing remedial interventions on communities and environments and centering affected individuals in the diagnostic and remedial processes. But there are multiple points of disability injustice along the health justice pipeline.…”

It is Not the Patient, It is the System: Commentary on “How Advanced Directives Help When Patients Refuse Life-saving Treatment Because of Their Substance Use”

“…We do not know if Jane was receiving adequate—or any—treatment for OUD or the painful withdrawal she inevitably was experiencing, including medication for OUD. If Jane is the typical patient in this situation, her providers focused on the presenting infectious process, leaving Jane's OUD and withdrawal undertreated or sacrificed altogether 3 to a medical culture steeped in over a century of separate and unequal systems of care for people with SUD 4 …”