Tuesday, September 25, 2018
In 2017 the U.S. Department of Health and Human Services (HHS) declared a public health emergency and announced a 5-Point Strategy To Combat the Opioid Crisis. Join us for this session as Attorneys from the U.S. Department of Justice, Office of Civil Rights, and Disability Rights Section discuss issues impacting persons with Opioid Use Disorders and the Americans with Disabilities Act (ADA). The speakers will discuss Justice Department efforts to eliminate discriminatory barriers to treatment and recovery programs.Speakers
Ladies and gentlemen, welcome to the opioid use disorder and Americans with Disabilities Act, eliminating discriminatory barriers to the treatment and recovery conference call. At this time, all participants are in a listen only mode. Later, we will conduct a question and answer session, and instructions will be given at that time. If anyone should require operator assistance, please press star then 0 on your telephone keypad. As a reminder that today’s conference may be recorded. I'd like to turn the call over to Mr. Peter Berg with the Great Lakes ADA center. Sir, you may begin.
Alright Victor, thank you very much. Welcome to everyone that is joining us today. Today is the final session in the 2017-2018 ADA audio conference series. So glad that all of you are able to join us for the session. The ADA audio conference program is a project of the ADA National Network, the ADA National Network is funded by the U.S. Department of Health and Human Services, administration on community living, National Institute on Disability independent living and rehabilitation research. You can locate your regional ADA center by visiting ADAta.org, or you can always contact your regional ADA center by calling 800-949-4232.
As a reminder, again this session is being recorded. The audio archive will be available within 24 hours. And in approximately two weeks’ time, we will have an edited transcript posted to the archive page at ADA-audio.org. Again, welcome, we are pleased to be joined by two representatives from the U.S. Department of Justice, office of civil rights, disability rights section, and we have attorney advisors, Stephanie Berger, and Savannah Weston. Both of our speakers provide regulation interpretation and coordination on the Justice Department's enforcement and regulatory requirements for the Americans with Disabilities Act and also section 504 of the Rehabilitation Act. We are very pleased to have them join us today on this topic that is of great importance, that being the opioid disorder and how the Americans with Disabilities Act comes into play in looking at how people with disabilities have protections under the ADA when it comes to recovery and treatment programs. Pleased to have Stephanie and Savannah with us and I will turn it over to them at this time. Welcome.
Thank you so much for that introduction, Peter. My name is Savannah Weston, and my colleague Stephanie Berger and I are delighted to have the opportunity to speak with you all today about the application of the Americans with Disabilities Act to people with opioid use disorders.
Moving to slide 10, slide 10 describes our objectives for today's presentation. So, first we would like you to come away from this presentation understanding the ADA's protections for people with opioid use disorders. We also want to help you be able to identify potential discrimination under the ADA that people in treatment and recovery from opioid use disorder may experience. And we also want to provide you with some information on how to file complaints with the Department of Justice or other appropriate federal agencies regarding discrimination.
Moving to slide 11, this slide provides a roadmap of what Stephanie and I plan to cover today. So first, we’ll describe the Department of Justice's response to the opioid epidemic, next we’ll cover some basics about the ADA and its application to people with opioid use disorder. And finally we’ll provide information about how to submit a complaint as well as how to reach us if you have any follow-up questions after today's session.
Slide 12 is our alphabet soup slide, and it covers a lot of acronyms that we use in this context. Here are some of the key ones. ADA refers to the Americans with Disabilities Act. DOJ refers to the Department of Justice. MAT or M.A.T. refers to medication assisted treatment. This is treatment for opioid use disorder combining the use of medication such as methadone, buprenorphine, or naltrexone with counseling and behavioral therapies. Another acronym that you will hear us use frequently is OUD, which is shorthand for opioid use disorder, as well as SUD which is shorthand for substance use disorder.
Slide 13 describes the Department of Justice's response to the opioid epidemic. DOJ is focused on prevention, enforcement and treatment as part of this three pronged response. Much of DOJ's efforts are focused on cutting off supply and bringing criminal prosecutions but in this continuum the disability rights section within the Department of Justice is focused on the treatment end of the spectrum. Our focus is on eliminating discriminatory barriers to treatment and recovery for people with opioid use disorder, who are not currently using illegal drugs. People with OUD frequently face discrimination and stigma, related to being either a former or recovering user of illegal drugs and related to the use of medication assisted treatment or MAT. We think the ADA can be an important tool when discrimination which is frequently fueled by stigma or myth or stereotypes served as a barrier to treatment or assisting recovery.
Slide 14 describes the tools that are available to the Department of Justice under the ADA. This includes outreach, technical assistance, enforcement and working with our U.S. attorneys offices across the country. Slide 15 and the next couple of slides that follow provide a quick ADA overview. We know that many of you who have called in to today's webinar are ADA experts. We will move relatively quickly through these next few slides, but they are important to cover, because they lay the foundation for the discussion that will follow about the nuances of how the ADA applies to people with OUD. In this slide, you will see that the ADA prohibits discrimination on the basis of disability in employment, in state and local government, as well as in public accommodations.
Slide 16 is our definition of disability under the ADA. Disability is defined as a physical or mental impairment that substantially limits one or more major life activities, a record or past history of such impairment, or being regarded as having a disability. The physical or mental impairment prong is something that we will discuss further in the slides that follow.
The record of having such an impairment, so this would include a person who has a history of an impairment that substantially limited a major activity, such as someone who has recovered from an impairment. An example would be people who have had a history of mental or emotional illness or history of heart disease or cancer. And then the regarded as prong applies when people are treated as if they have an impairment, that substantially limits a major life activity, regardless of whether or not they in fact have an impairment. Here the perception is the key element of this. So people who perceive, but people who perceive themselves as having an impairment, but do not actually have an impairment, and are not treated as if they have an impairment, would not be protected under this test. It's about how others perceive that individual.
So, an example of someone that might fall under the regarded prong as having a disability would be if based on a family member's HIV status, say a school district removed a child from its school because it regarded the child as having HIV, based on the fact that they knew that the family member had HIV. So those are the elements of the definition of disability under the ADA. Slide 17 will focus more on an impairment.
Opioid use disorders are impairments under the ADA. Individuals with OUDs that substantially limit one or more of their major life activities are generally considered to have a disability under the ADA. The Department of Justice's Title II and 3 regulations specifically include drug addiction, in the definitions of physical or mental impairment. But note and we will discuss this later that this is subject to an important exclusion, regarding current illegal use of drugs.
Slide 18 describes major life activities which include caring for one's self, learning, concentrating, thinking, communicating, working, as well as the operation of major bodily functions, including neurological and brain functions. Social interactions and parenting have also been recognized by some courts as major life activities that are affected by substance use disorders.
Slide 19, to be eligible for the ADA's protections under Titles 1 and II, the person must be a qualified individual with a disability, and this means that with or without reasonable modifications, the individual must meet the essential eligibility requirements for the employment, the receipt of services, or the participation in programs. For example, a person with an opioid use disorder seeks to participate in a state or local government program, where the lack of a recent criminal conviction is a prerequisite for participation. And this person has a recent criminal conviction, and is turned away from the program on that basis. This person would not be protected under the ADA for their exclusion from the program, because he or she was not qualified to participate regardless of his or her opioid use disorder. This slide also covers the concept of mitigating measures. That is the determination of whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of a mitigating measure. An example would be an individual whose particular treatment allows him or her to fully function, is covered by the ADA, if even without treatment the individual's major life activities would be substantially impaired. Now we will move over to slide 20, and this slide is to focus on how expansive the definition of disability is under the ADA. So, it's supposed to be interpreted broadly, and the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. The terms substantially limits should also be construed broadly, and the definition is a non-exhaustive list of major life activities.
So then on slide 21, I've been moving relatively quickly through a lot of this material, and here is where I'm going to really slow down, because this slide is important and it's kind of an important nuance in all of this. Under the ADA, an individual with a disability does not include an individual who is currently engaged in the illegal use of drugs, when the covered entity acts on the basis of such use.
I'm going to break this down. What does it mean to be currently engaged in the illegal use of drugs? First, what are drugs? Drugs are defined as a controlled substance, as defined in schedules 1 through 5 of section 202 of the controlled substances act. Opium, opioids and their derivatives are all considered drugs under this definition. Then what does it mean when the covered entity acts on the basis of such use? If someone is currently illegally using drugs, and the covered entity takes adverse action against them on the basis of their current illegal drug use, then that is not a violation of the ADA.
However, if someone is currently illegally using drugs and the covered entity takes action against them, not on the basis of their current illegal drug use, but instead on the basis of their disability, then this could give rise to liability under the ADA. Moving to slide 22, this slide elaborates on what current illegal use of drugs means. So it's the illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current, or that continuing use is a real and ongoing problem.
Whether an individual's illegal drug use stopped long enough ago for the person to be protected under the ADA is really a fact bound inquiry but there are two key questions that you can ask that help inform this analysis. The first question is: does the illegal use of drugs remain a problem? The second question is: how much time has passed since the individual illegally used drugs?
And it really depends on case law in whatever federal circuit you are in. So, some courts have interpreted current use of illegal drugs to include the weeks and months prior to the alleged discriminatory act. But some other courts have found that as few as 30 days free of using illegal drugs is no longer considered to be currently engaged in illegal use. So this is something where it really depends on the facts and the circuit that you are in for analyzing this.
Moving on to slide 23, so does illegal use of drugs cover all opioid use? Does it offer MAT (medically assisted treatment)? No. The illegal use of drugs does not encompass the use of a drug taken under the supervision of a licensed healthcare professional, or other uses authorized by either the controlled substances act or other federal laws.
People who use opioids that are legitimately prescribed are not engaged in current illegal drug use. Two examples – someone, a person who is using opioids to manage chronic pain, that substantially limits a major life activity, and those opioids are legitimately prescribed and taken under the supervision of a doctor or a treatment provider, the ADA would protect them. Also people who are on opioid maintenance drugs, such as methadone, which is taken under the supervision of a doctor or treatment provider and part of a treatment program. They would also be protected under the ADA. But when entities take some action against or otherwise exclude people in these categories on the basis of one of these allowable uses, they may be violating the ADA.
Slide 24 talks about the ADA does protect an individual who, and then here are a couple scenarios. Has successfully completed a supervised drug rehabilitation program and is no longer using drugs illegally, or has otherwise been rehabilitated successfully and is no longer engaging in such use. Another scenario, they are participating in a supervised rehabilitation program, and they are no longer using drugs illegally. And yet another scenario in which someone is protected under the ADA is if they are mistakenly regarded as using drugs illegally but in fact they are not. The common thread throughout these three examples is that the person is not currently engaged in the illegal use of drugs.
Slide 25, another important point to mention is that although the ADA generally does not protect individuals who are currently engaging in the illegal use of drugs, healthcare providers may not deny health or drug rehabilitation services to individuals because of their current illegal use of drugs if they are otherwise entitled to such services.
So, while people who are illegally using drugs are not considered to have a disability under the ADA, and therefore, are not able generally to benefit from the ADA's protections, the ADA provides some protection when healthcare services and drug rehabilitation connected services are involved. For example, an urgent care clinic that treats all manner of medical emergencies cannot institute a policy whereby it would not treat medical emergencies related to heroin overdoses.
Slide 26, it's also important to note a related issue to OUD discrimination. Discrimination based on disabilities that frequently co-occur with OUD, such as mental health disabilities, HIV and hepatitis. Many individuals have co-occurring disabilities, and so they may face multiple disability related issues in connection with their OUD. Slide 27, we have heard of some instances where individuals who have mobility, vision or hearing disabilities in addition to having a opioid use disorder have faced barriers to treatment, and such barriers may include inaccessible treatment facilities, such as a lack of ramps or accessible parking, as well as issues caused by the lack of auxiliary aids or services, such as not having a sign language interpreter at a opioid use disorder treatment clinic for someone who is deaf. With that, after slide 27, I'm going to turn it over to Stephanie Berger, who will cover this second half of our presentation.
Great, thank you, Savannah. Now, I want to dive a little bit deeper into some of the specific contexts in which discrimination might occur, starting with Title I which is employment. Title I, as I'm sure many of you know, requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment related opportunities. That takes place everywhere from recruitment, to pay, hiring and promotions, providing reasonable accommodations, and other privileges of employment, and training.
Now we are going to start, we will have some examples throughout the rest of this presentation, some of them are hypotheticals, and some of them are actual cases. This first one is a hypothetical of what illegal discrimination might look like in the Title I context. Eduardo is a checkout clerk at a local big box store and a model employee. But he has difficulty standing for long periods of time due to muscle pains that are related to his methadone treatment for his OUD. His employer refused to provide him with a stool as a reasonable accommodation, so that he could sit down at the cash register when necessary until the muscle pains passed.
As many of you know, a reasonable accommodation is any modification or adjustment to a job, the job application process or the work environment that enables a qualified applicant or employee with a disability to participate. Examples of reasonable accommodations can include making existing facilities readily accessible, restructuring a job, modifying work schedules, acquiring a modifying equipment, and even sometimes reassigning a current employee to a vacant position for which they are qualified.
So, once an employer determines an accommodation is reasonable, the employer must provide it unless the employer can demonstrate that the requested accommodation would impose an undue hardship on the business operation. And determining whether a particular accommodation poses an undue hardship must be made on a case by case basis.
In this example, we can imagine or we probably can't imagine too many situations where a cashier being able to sit at certain times would provide an, create an undue hardship on the business. So more than likely, allowing Eduardo to sit would be a reasonable accommodation. Another example to consider related to this would be a pharmacy that fears that its employees might steal drugs for illegal sale or personal use. So that pharmacy says to address that concern, they want the employee to periodically report to the manager all prescriptions and nonprescription medications that they are taking. Would that be a reasonable policy? Probably not. The ADA prohibits employers from making inquiries of an employee as to whether that employee is a person with a disability, unless the inquiry is shown to be job related and consistent with business necessity.
The pharmacy's disability related inquiry, where asking an individual what medications they take could very well require them to disclose a disability, would violate the ADA because it goes beyond asking about illegal drug use, and is asking them for more information that would be likely to reveal the existence of a disability.
One other issue that I want to address related to this slide is, we have received many questions from individuals saying, would leave for an individual with opioid use disorder who wants to go to a treatment facility or take leave in order to receive treatment for their drug use be a reasonable accommodation? Enter a rehab program may be a reasonable an accommodation under the ADA for an individual with OUD, however, if an employee with OUD is currently engaged in the illegal use of drugs, remember that the employee is not covered by the ADA, if the employer acts on the basis of their current illegal drug use. So what does that mean? It means that if an employer finds out that one of their employees is illegally using opioids, they are entitled to fire that individual, and they don't have to give them the opportunity to attend rehab or have leave to attend a rehabilitation program before firing them. However, as we also discussed previously, what constitutes current illegal drug use can be very fact specific. Now it is possible that an individual might request leave to attend a rehabilitation program without currently illegally using drugs. Some individuals may for example have a prescription for opioids or opiates that is valid, maybe perhaps related to an injury or another disability. And that individual may feel that they are becoming dependent on those opioids and want to preemptively attend a program to help them get off of using those, that medication. It is possible that a request to attend rehabilitation could be a reasonable accommodation that should be granted.
Another question that we have received related to this is whether our position would change if the employee has an underlying disability for which they are taking opioids. Once again, the key point there is that if an individual is taking opioids that are legally prescribed by their doctor, they are covered by the ADA, and they would be entitled to reasonable accommodations related to their disability. However, some individuals may both have a valid prescription for opioids and also be abusing opioids beyond their prescribed levels. So once again, that would be a fact specific inquiry, but it may be possible that that individual would then not be covered under the ADA any longer.
One other point I want to cover before we move to the next slide is, what the difference is here between opioid use and alcohol use. So, does the answer to the question change if it's a treatment for alcohol dependency instead of treatment for opioid use disorder? Alcoholism and drug addiction are both disabilities under the ADA. The difference is that while a person with alcoholism that substantially limits one or more major life activities is covered under the ADA, whether or not they are currently abusing alcohol. A person with drug addiction who is engaged in current illegal use is not covered under the ADA, because of that exception that we talked about before. So while it may, a person with alcoholism may be entitled to attend a rehabilitation program who is currently engaging in the abuse of alcohol a person who is currently engaging in the illegal use of opioids would not be entitled to the same accommodation. In addition, it's important to point out under all of this that employees can always be fired or reprimanded for failing to meet workplace requirements. If a workplace requires that somebody stay drug free or alcohol-free, or come and be, attend work in a timely manner, and conduct themselves professionally, and because of their drug or alcohol use, they are not able to meet those requirements, then it would be acceptable for that person, to be reprimanded or terminated. That was a lot.
Let's move to the next slide. Here is another example of what illegal discrimination might look like. This is an actual case, the EEOC versus Volvo Group North America, which was in the district of Maryland. This case settled in January, 2018. What happened here is that an applicant alleged that Volvo made a conditional job offer to them and that they were qualified for a laborer position. During the post offer physical examination, the applicant alleged that he explained that he was taking medically prescribed suboxone and then upon reporting for his first day of work, the applicant alleged that Volvo informed him it could not hire him because of his suboxone use. And so, what happened was that Volvo failed to conduct an individualized assessment to determine what effect if any this suboxone had on this individual's ability to perform the job. The EEOC settled and made it clear that the failure to hire an individual with a disability just because they are a recovering drug addict in a medication assisted program is a violation of the ADA.
Under the consent decree in this case, Volvo will pay the individual $70,000, and take a number of steps which include distributing a ADA policy, explaining the right to reasonable accommodation, to the individuals in the facility where this individual was going to work, amending its policy on post offer medical and drug evaluation, to better explain how it will assess whether an employee or applicant’s lawful use of prescription medication poses a direct threat as defined by the ADA, and also on how they will provide reasonable accommodations required under the ADA, providing training, including on how the law relates to drug screening and the use of lawfully prescribed medication and a reporting requirement to the EEOC.
There have been several other EEOC settlements in the past few years with similar fact patterns to this one, about five or six that we are aware of. These are all cases in which an offer of employment was withdrawn, when it was discovered that the applicant had opioid use disorder, either that they disclosed during a medical examination that they had it, or they were drug tested and it was revealed that they were taking lawfully prescribed medication treatment for their opioid use disorder but even with a doctors’ note explaining why they were taking it, the company still decided they would no longer hire the individual.
Now we are going to move on to talk about Title II, state and local governments. As you probably know, Title II covers all activities of a state and local government regardless of their receipt of federal funding. This is everything from courts to law enforcement services, public education, transportation, recreation, healthcare, social services, voting, and subject to the applicable defenses under Title II of the ADA, state and local governments are required to provide individuals with disabilities and equal opportunity to benefit from all of their programs, services and activities.
On slide 34, we will get into some examples of what illegal discrimination might look like in this context. The first is that a city adopts and enforces zoning rules that subject residential substance use disorder program to a more burdensome approval process than the city requires of similar entities.
DOJ has brought several cases to address discriminatory zoning and land use restrictions that act as barriers to treatment and recovery for individuals with substance use disorders. For example, the department successfully challenged Baltimore's discriminatory zoning rules which suggested residential substance use disorder programs to a more burdensome approval process that other entities were not subjected to. This can take the form of just additional permits, additional processes that need to be gone through, it can also take the form of sometimes community forums are held, and individuals in the community will say, “We don't want a methadone clinic in our area.” And then that clinic might be subjected to additional levels of approval or have their permit rejected, because of what individuals in the community said. In the Baltimore case, the department alleged that the requirement to go through additional or jump through additional hoops for that treatment facility discriminated against individuals receiving treatment in violation of both Title II of the ADA and under the fair housing act. The court found that the city's requirement was overbroad and discriminatory, and actually ordered that the zoning code be amended.
On slide 35 we have another example. This is that a supervised release program prohibits people who are currently on medication assisted treatment from participating even if they are not currently illegally using drugs.
Hypothetically, William would benefit from this program, but since it requires individuals to have completely ceased using MAT before participating, he’s excluded. And we see and hear of a lot of different examples of these sort of blanket prohibitions on medication assisted treatment, and the key here is always that a case by case assessment of individuals should be conducted, so blanket policies are typically not going to be acceptable. An individual should be able to have their need for medication assisted treatment evaluated, looking at their treating physician's orders, and so the public entity would violate Title II by imposing eligibilities criteria that screens out or tends to screen out individuals with disabilities. The next example on slide 36 is a parole board prohibits inmates with a record of drug addiction from consideration for parole. And Jim, an inmate, has a record of drug addiction but is not currently illegally using drugs. So an inmate with a record of drug addiction, a parole board would once again not be permitted to categorically exclude a class of persons with disabilities from consideration for parole because of their disabilities. Once again, the key here is conducting an individualized assessment of the individual.
Moving to slide 37, another example in which opioid use disorder as a disability arises is child welfare, and so Title II covers child welfare agencies and courts' interactions with parents who are in recovery or recovered from substance use disorder and opioid use disorder. Once again, child welfare agencies and court systems should not subject parents to blanket eligibility criteria that screens out individuals with substance use disorder and opioid use disorder from participation in their programs, services or activities.
We have heard of examples in which parents who are, especially mothers, who are taking medication assisted treatment are told by the child welfare agency or the court or agent that they need to stop using that medication assisted treatment in order to maintain custody of their children. This can be particularly challenging for women who recently gave birth, because being on medication assisted treatment is considered to be the gold standard for pregnant women, and so a woman may be, you know, very much encouraged by her doctor and the child welfare system to be taking medication assisted treatment while she is pregnant, but as soon as she gives birth it's possible that her doctor would recommend that she stay on the medication assisted treatment but the child welfare agency would tell her, “if you want custody of your child, you need to get off of it.” And so, once again, the important key here is an individualized assessment of whether it makes sense for that individual parent to continue to take medication assisted treatment, and the benefit of that parent's continued participation in medication assisted treatment should be looked at such as avoiding the recurrence of the illegal drug use, their improved health and greater chances for employment, which all might weigh in favor of the parent staying on medication assisted treatment versus any sort of ideas that the agency might have about why that parent should not be on medication assisted treatment.
For slide 38, we will move to Title III which is public accommodations. Looking at slide 39, we have an overview of Title III which covers 12 categories and places of public accommodations which includes everything from pharmacies to insurance offices, professional offices of healthcare providers, hospitals, and social service center establishments which are all categories where you can imagine a person having opioid use disorder might come into play.
Moving onto slide 40, which is where we can look at the example of the DOJ's first settlement in opioid use disorder context which is our settlement with Charlwell operating LLC. In May of 2018, the Justice Department entered into a settlement agreement with this company which operates a skilled nursing facility in Massachusetts. And in this matter, the charging party alleged that in 2017, the skilled nursing facility denied a bed to a patient due to that patient's use of suboxone. The individual needed skilled nursing for a different reason, I believe related to a recent surgery they had had, but they found out that that individual was using suboxone, and through its investigation, the department learned that this skilled nursing facility had not admitted any patients that had physician prescribed medications, including suboxone, or specifically medications for opioid use disorder, including suboxone and methadone at all in the past year. So, the department determined that Charlwell's denial imposed eligibility criteria that screened out individuals with opioid use disorder, and that it denied the patient the opportunity to receive Charlwell's services on the basis of disability in violation of Title III.
Looking at slide 41, the settlement agreement in this case required Charlwell to adopt a nondiscrimination policy, provide training on the ADA and opioid use disorder to admissions personnel, and to pay a civil penalty of $5,000 to the United States. Moving to slide 42, here we have another hypothetical example of a way that we might see illegal discrimination by a public accommodation. Dora seeks to participate in a mentoring program for young adults, through a local nonprofit agency. Dora reveals as part of the required personal background information that she has struggled with an addiction to prescription pills, but she's proud that she has been 15 years completely drug-free. But the agency decides to reject her application, based on her past substance use disorder.
Here, the agency's rejection of Dora’s application may indicate their use of a blanket policy, prohibiting people with a history of substance use disorder from participating, and as we discussed previously, blanket policies are typically a red flag, because usually an individual needs to be assessed on an individualized basis.
Looking at slide 43, so we have come to the end of all of our examples under the three different titles. We want to provide you with some information on filing a complaint under the ADA, if you or someone that you work with may experience discrimination in this area. We have heard quite a bit actually from providers of medication assisted treatment, and from individuals who work with people who have opioid use disorder and all sorts of different contexts that those individuals have issues and that they may be looking for a place to file a complaint. So we would encourage you to share this information widely.
You can of course file a complaint with us at the Department of Justice. We have the information on the slide for where you can go to file a complaint. You can also go to ADA.gov and you will see a box on the home page that says how to file a complaint. To provide a little bit of information, regarding our complaint process, we receive thousands of complaints from the public each year. We don't open investigations of every complaint. But we do thoroughly review every complaint that we receive. If we do open an investigation, either by us or by one of our U.S. Attorney offices partners, DOJ conducts an investigation of the discrimination or the alleged discrimination, which can include requesting documents, witness interviews, meetings with the complainant, and all sorts of other things, and if we find the ADA has been violated, we seek authorization to take action. We always try to resolve in the first instance through a negotiated resolution. We always try to work more informally with a party before we take more formal action. If that doesn't work, or the entity is unwilling to cooperate, we seek authorization to take other appropriate action up to and including the filing of a lawsuit. That is what to do with the Department of Justice does with complaints.
On slide 44, if the complaint is housing related it should be filed with the U.S. Department of Housing and Urban Development, or HUD. And so we have the information here for how to contact them, probably the easiest way is to go on the website and look for that information there.
Then on slide 45, we have information on filing an employment related complaint. The Equal Employment Opportunity Commission or the EEOC receives and investigates complaints regarding employment discrimination, including on the basis of disability. So, the EEOC and the Department of Justice both have jurisdiction to enforce the ADA. Individual charges need to first be filed with the EEOC, and then they investigate, and if they find a reasonable cause that the discrimination occurred, they try to engage in conciliation with the employer, to attempt to resolve the matter. If that fails, and it's a private employer, then the EEOC will either file suit themselves or issue a notice of right to sue to the individuals, to let them know they can go ahead and pursue their own lawsuit.
But if it's a public employer, meaning if it's a state or local government employer, so an employer that would be covered under Title II, the EEOC then forwards that to the DOJ civil rights division, and then we look at it and determine whether we want to take further action. In addition, the Department of Justice has jurisdiction, not just based on these referrals from the EEOC but also we can initiate our own investigation if we hear of potential systematic discrimination by a state or local government in the employment context.
Now, we will move to our last slide, slide 46, which is our contact information. We would encourage you to reach out, if you have any questions, after this presentation. And we are very happy to have had the opportunity to speak with you about this today.
All right. Thank you both, Stephanie and Savannah for all of that great information. Now, all of you have an opportunity to ask questions of our speakers. Before I bring Victor back to give instructions for those participating by telephone, I will remind those in the webinar platform that you can submit your questions in the chat area, and when you submit your questions, you will not see them, but they are viewable by us here. So we can ask those questions, so Victor, if you would come back and give instructions for our telephone participants on how they can ask questions, please.
Yes, sir. Ladies and gentlemen, if you have a question at this time, please press star, then the number 1 on your telephone keypad. If your question has been answered or you wish to remove yourself from the queue, please press the pound key. Once again, star 1 for questions, star 1.
While we wait to see if we get any questions from our telephone participants, Stephanie and Savannah, keeping along the lines of complaint filing and a couple questions around that area, first one is, you mentioned individuals filing on-line with the Department of Justice, and there is also information where folks can mail complaints through old-fashioned traditional mail. What about U.S. attorney’s offices, which are part of the Justice Department, can individuals go directly to a U.S. attorney's office in their local community to file an ADA complaint? Or does it need to come through the disability rights section in Washington?
Yes, absolutely. Individuals can also file complaints directly with their local U.S. Attorneys, those U.S. Attorneys can then go ahead and investigate those complaints themselves, or sometimes they will also loop us in, and we will be involved as well. So whatever an individual feels most comfortable doing.
Okay, and does the disability rights section also work with local U.S. attorney’s offices that have experience in ADA complaints and investigations, will investigations always originate out of D.C., or will you and -- will you, will complaints sometimes be forwarded from D.C. to the local U.S. attorney’s office?
Yes, so we have a great sort of collaborative working environment with our U.S. attorney’s offices. There is 94 of them across the country. And, uh, so, sometimes the complaints come in to us, and we will work with those local U.S. attorneys, especially in areas where we know there is a particularly big problem, and we know that there is a, you know, particularly active civil rights practice in the U.S. attorney’s office, we often work very closely with them. It depends on the individual matter. Sometimes we do it ourselves. Sometimes we do it in conjunction with them. Sometimes they do it themselves.
Great. Folks can find information for their U.S. attorney’s offices, going to USDOJ.gov or Google is always a good way to find contact information or local telephone number if you put in the search for U.S. attorney’s office in Metropolitan large Metropolitan city in your area.
One more question on enforcement, or file a complaints. This question relates to, would the Justice Department, can someone file a complaint with the Justice Department if they have already or if they have a pending complaint in front of a state or local civil Human Rights Commission? Would DOJ take a complaint in that circumstance?
Yeah, absolutely. Unlike some other civil rights statutes, there is no requirement for any sort of administrative exhaustion process or anything like that first. So, we can go ahead and take a look at a complaint regardless of where any other complaints that are made about the same issue are in the process. It would be helpful if an individual who files a complaint and does have a related complaint pending in another sort of forum would include information on that complaint when they make their complaint with us as well. That way we will have sort of a full picture of what is going on.
Sure. One last one, in this area. Can you talk about the DOJ mediation program, and how that may assist individuals in being able to resolve complaints around any opiate use disorder complaints.
Yes. So the DOJ also has a voluntary mediation program, and so when we receive complaints, we screen them, and we sometimes select ones that look like they would be particularly helpful for mediation. We have a mediation program coordinator who will then try to coordinate with the parties to see if that is a good complaint to go to mediation. I don't have all the information on, our statistics on mediation right in front of me, but I know that we have quite a few complaints that go through mediation each year and there is more information on our mediation program on our website at ADA.gov.
Lots of information about that program. Let's check real quick and see if we have any questions on the telephone at this time, Victor.
Yes. As a reminder, ladies and gentlemen, that is star 1 for questions, star 1.
Okay. We do not. So we will check back to you, we will continue with questions that have been submitted on-line.
This was a follow-up question to, related to the example of an employment setting, and related to the issue of being qualified, so the questioner wanted to know about what if someone was seeking employment in a drug treatment setting, so working in a treatment facility, or a clinic, and they have either a record of past use, and were denied an employment opportunity because that information was learned by the prospective employer.
Yes. I think this would be yet another example where it's important to conduct a case by case inquiry. So, you know there is the direct sweat defense for individuals in employment as well, and so it could be that a person who has a past history of drug use or is currently using drugs might pose a direct threat in a healthcare setting or in a drug abuse treatment setting. It's possible. However, in the employment context, an individual or an employer would need to do that individualized assessment to really determine whether that person with opioid use disorder poses a direct threat to health and safety, and it would be based on the individual's present ability to safely perform the essential functions of the job. If we are talking about a history of drug addiction, but they are not currently having any issues, then one would think that the likelihood of a direct threat being in existence would be relatively low. That assessment needs to be based on reasonable medical judgement, and consider several different risk factors, including the duration and the severity of the potential harm and the likelihood that it would occur. So it's not an easy threshold to meet.
Great. Then a couple questions, individual questions around protection based on the association, so in a couple examples that they had, one where for instance a child is denied participation in a child care program because of a parent's, the center is aware that the parent has either a past history of substance abuse or the parent is currently using medication, is participating in medication assisted treatment programs, so what are the protection there, the child is not someone with a disability but they are the ones that are denied access to the child care program on that basis. Then another one, related to one of the examples Stephanie, you had brought up, regarding parental rights and the right of parents with disabilities, so a parent in, one of the parents is again, either has a history of drug use or medication assisted treatment program, and it's the parent without the disability that is denied, for instance, assistance or access to programs that typically would be provided to a parent in a particular situation. So if you sort of touch on that, that association protections under the ADA.
Absolutely. This is Savannah. Under both of those instances, the child care program and the one parent having a history of drug use, but another parent not having it, and in both of those instances being denied access to the program, those would both be examples of individuals being regarded as having a disability because of that association. So that would fall under the disability definition under the ADA, and they would have ADA protections for that reason.
Great. And then companions, you talked about companions, this is a sort of different take on companions and effective communication. Let’s say that someone that has a opioid use disorder was in a treatment program, recovery program and part of that involved participation of family members at some point during that program, and the family member, not the participant in the recovery or treatment program, that family member or friend who is going to participate in let's say a group session or some sort of counseling session, is an individual that is deaf, and requires a sign language interpreter. What are the obligations related to the companion in that instance who is not the individual in the treatment program?
Right. So that's another great example of related disability issues that can come up in this context. So, absolutely, an individual's companion needs to have their disability accommodated, whether it's providing a sign language interpreter for an individual who is deaf, or providing materials in an accessible format for an individual who has any sort of vision disability, if a person has, if the program typically would involve a person having a family member or friend participate in their treatment, then absolutely, if that friend or family member has a disability that requires accommodation, or effective, an aid or service to make that effective, then that would need to be provided.
Along those lines, a follow-up, related to a mobility disability, so let's say that someone is going to participate, someone with a mobility disability is going to participate in an inpatient program or an outpatient clinic and physical access is an issue, so it's not related to the opioid use disorder but it's related to another covered disability, if you could talk a little bit about program access and barrier removal and how that can come in to touch this, the main topic that we are talking about today.
Yeah, absolutely. You are doing a great job of making sure we cover all the bases, Peter. Physical accessibility, and program access, remain important in this area as well. And individuals often have concurrent disabilities, and so absolutely, an individual who has opioid use disorder may also have a mobility disability, and that program, depending on whether it's a Title II or Title III entity has different obligations, but what it needs to do in order to provide an accessible program, but those same obligations are either barrier removal or making the program accessible exist. This is actually one great example where the issue of whether or not the discrimination is based on the individual's illegal drug use comes into play, because it could be possible that a facility could say, hey, we don't actually have to accommodate the person because, look, they’re currently illegally using drugs, and you would say, no, in this instance you are not trying to discriminate or exclude them because of their drug use, you are excluding them because of their mobility disability, because you are not providing access. So definitely, these can get to be sort of interesting situations, and they are very fact specific.
Excellent. A reminder that the ADA takes so many different angles, and for those that may be attending, that operate, run treatment programs, that in addition to general nondiscrimination policies, that there are ongoing obligations under Title III for barrier removal and such thing as grandfather clause and program access for Title II entities states and local governments that are operating clinic, inpatient and outpatient treatment programs. It would not be a Department of Justice audio conference or webinar program without a service animal question. The immortal words of Sally Conway who retired from the DOJ, there is always a service animal question. To the extent that you are able to address this and I know this is going to be very case specific, but service animals, if you can talk about one, an outpatient settings, and the obligations of treatment, recovery facilities to accommodate again someone using a service animal for a disability other than an opiate use disorder, and then if you could also kind of walk us through the scenario where in an inpatient setting, someone wants to have a service animal with them, and what might be legitimate defenses to possibly exclude or maybe there aren't options to exclude, but if you can walk through the whole service animal definition, what entities can and can't ask, and how that would take place in that inpatient versus outpatient setting.
Sure. So you were the first person who managed to work a service animal question into our opioid presentation, so congratulations. (Laughing).
(Laughing). As most people have heard before, service animal is under the ADA a dog that is, or trained to perform worker tasks related to an individual's disability, and so there are all sorts of requirements for service animals, they have to be house broken, and under the handler's control. They typically have to be leashed or tethered, unless the person's disability requires that they not be. Entities typically cannot ask an individual too many questions about their service animals, so they can ask if it's a service animal and what work or task it's trained to perform but they can't ask questions about the individual's disability. And so, in an outpatient sort of setting, I probably can't imagine too many scenarios in which it would be appropriate to exclude an individual using a service animal. There is the sort of direct threat and legitimate safety requirements that can come into play, so if there was some sort of legitimate safety reason why a service animal would need to be excluded, or the animal was, somehow provided, caused a direct threat or the individual with the disability who is using the animal would somehow provide a direct threat because of that use, then that person could possibly be excluded. But as in every other setting, typically tends to be a high burden to meet in order to use either of those defenses.
If there was an inpatient setting in a hospital, then typically a service animal needs to be allowed to go anywhere where an individual with disability would go. There are some more sort of direct threat, legitimate safety requirements that can arise in that situation. So for example, like a burn unit, where it’s extremely important for the atmosphere to be very sterile, it might make sense to exclude the service animal. But I would imagine if we are talking about an inpatient sort of treatment facility, there probably aren't those same sort of requirements for any sort of sterilization, based on somebody's opioid use disorder. I would imagine it will be difficult to prove why a service animal would need to be excluded.
Excellent. Thank you for addressing that. I'm all about the service animals.
Alright, I know you addressed this issue and the distinction, Savannah, between someone who is currently illegally using drugs, and alcoholism, so but the follow-up question, in an employment setting, so where, would it be discriminatory or take us through the analysis of a situation where an employer has a treatment program, second chance program for someone who has alcoholism, but they don't have a similar type of second chance recovery program for someone with an opioid use disorder.
Sure. I think the key difference there, as we touched on before, is that there is that carve out in the ADA for an individual who is currently illegally using drugs, and that individual is not covered by the ADA, whereas an individual who is abusing alcohol would still be covered by the ADA.
I think in this situation, it may be acceptable for the employer to have a different policy related to giving somebody who has an alcohol problem a second chance, but not giving a person who has an ongoing illegal drug use problem a second chance. That is just because of that distinction within the ADA. Now, then the sort of question of what is current illegal drug use can come into play. So the question may be, if the individual is currently illegally using drugs, then there is no question that the employer would be able to fire that employee without giving them that second chance.
However, if the individual maybe has not been illegally using drugs for as little as a few weeks, or a month, certainly if it's been a few months, then the law of that local district where the employer is might come into play as to whether or not they need to provide the same accommodation as they would provide somebody who has a alcohol abuse problem.
Ok, great. Again, you talked about policy, just because someone may be a person with a disability because of alcoholism, in that instance they would still have to comply with all the employer's code of conduct and performance requirements.
Savannah, again you also touched on, or I'm sorry, maybe it was Stephanie, I apologize, but –
They are very similar names.
Very similar, similar sounding. I can't wait for the students to go and edit the transcript. So you talked about general nondiscrimination claim with regards to medical programs, where it would be discriminatory, urgent care, for someone to turn away someone based on a service that or treatment that they particularly provide. But could you talk about the provisions of the ADA that talk about specialty. So let's say that whether, why or why not, would that be, why wouldn't it be discriminatory per say for a urgent care center to refer someone to a trauma center that is experienced in, for instance, overdose, or where a general practitioner or clinician may refer someone to a specialist for treatment related to an opiate use disorder.
Sure. So I unfortunately don't have that provision right in front of me so I can't quote it directly. But it is sometimes appropriate for a facility to refer an individual to another facility that could better provide the services, as opposed to directly serving them themselves. So whereas it would not be appropriate for an emergency department to turn a person away who is having an overdose, it might be appropriate for them to say “we can't provide you with a drug treatment program here but we can refer you to a hospital that does have a drug treatment program.”
All right. Very good. You talked about this, but in a different context of a parole board that has a particular policy, but this questioner wants to know about in some states where it prohibits incoming inmates to be participating in, or taking medication assisted treatment program, they don't allow inmates as a general policy to enter their prison system if they are using medication assisted treatments.
Sure. So that is another thing that we are hearing a lot about, and in fact the ACLU currently has a case in Massachusetts, and I believe another one in Maine, challenging some prisons' policies of not having, people who come in and they are already on medication assisted treatment, not providing that medication assisted treatment or requiring them to detox. That is an area that the Department of Justice is not currently active in. So it's certainly our position that that prisons and jails are covered by Title II. But this is not an area that we are currently active in, but we would absolutely encourage people to continue monitoring the efforts of other organizations.
Excellent. Thank you. Then this question regarding effective communication, again, obviously, there are a lot of issues related to individuals, as you mentioned, can have more than one disability. So someone that is deaf or hard-of-hearing, or someone that is blind or low vision, who is seeking treatment from a program, and what are the obligations for those healthcare providers, whether it's Title III, to ensure effective communication, or Title II and primary consideration, if you can kind of walk us through those obligations to be able to effectively communicate with someone with an opiate use disorder who is deaf or hard-of-hearing or blind or low vision, and the individual to be seeking treatment to be able to communicate effectively with the folks that are providing the treatment.
Right. Both Title II and Title III entities have obligation to provide effective communication to individuals with disabilities, whether, if they require effective communication through auxiliary aids and services, either for vision disabilities or hearing disabilities or any other disabilities that might require those. When it comes to Title II, state and local governments, they need to provide the type of aid or service that the individual requests, unless they can demonstrate for a reason like an undue burden or hardship in providing that. Title III entity needs to give consideration to an individual's request, so since Title III public accommodations might have slightly more limited resources than a state or local government would, they have a slightly lower burden in providing exactly what the individual requests. But they should certainly make every effort to provide that individual with some sort of aid or service, and to do the best that they can to provide that effective communication.
Okay. Excellent. Thank you. I'm sorry if I missed it but did you explain the primary consideration under Title II, in that distinction, and if so, I apologize for ...
Sorry, you cut out for a minute. You know Peter, you might actually be better suited to explain that difference. I don't have it in front of me.
Yeah, no, the primary consideration is that state and local governments, when congress was passing the ADA originally, the Congressional record testimony clearly indicates that state and local governments have a higher obligation, when it comes to effective communication, not that Title III entities don't have an obligation but there is a higher obligation, and the Title II regulations actually use the term primary consideration. So the obligation is to provide what the individual has requested, whether that's a qualified interpreter or real-time captioning, and state or local government entity can only provide an alternative where it's going to be equally effective. But in either case, the best case scenario whether it's Title II or Title III, is to talk to and have a discussion. There is nothing wrong with asking questions and understanding what is going to be most effective in a particular situation, in order to communicate with someone that is deaf or hard-of-hearing or who has low vision.
Thank you. You were far more articulate on that point than I would have been.
Let’s see, we have got, okay, here is a question, it sort of gets to the definition and you may not be able to answer this specifically, but talk about the overview I guess of someone with an actual disability, so the questioner wants to know about someone that, who through proper use of a medication becomes addicted to said let's say pain medication, and what if any protection an individual would have in that instance. Let's say it's in an employment setting, someone is, if this is too specific, obviously, you know, someone is taking prescribed pain medication and they become addicted to that and an employee becomes aware of it, because they randomly do drug testing or something along those lines.
Sure, that is a great question. If an individual has an underlying disability for which they were prescribed opioids as pain medication by their doctor, but in the scenario you have described, they have now developed an addiction, and they are taking opioids in addition to or beyond the amount that were prescribed for them by their doctor, then they may be considered to be engaging in current illegal drug use, and thus would not be covered by the ADA.
And obviously, you have mentioned multiple times today those are going to be really case specific.
Absolutely. It's a fact bound inquiry. Often it depends on whatever circuit you are in, and looking at the case law for. Yeah, so it do does depend on the facts.
Another question, back to sort of enforcement, and you talked about, Stephanie, that the department doesn't have the resources to enforce all complaints. But the areas where the Justice Department disability rights section has engaged in enforcement activities, have those, obviously you can't give specifics but have those come from individual complaints? Have they come from disability rights network, formerly protection advocacy services, have they come from Justice Department, Justice Department has authority to do compliance reviews. So if you can sort of talk in terms of how those enforcement efforts are born.
Sure. Do you mean related to the opioid use disorder cases?
In this context, we are relying on our outreach efforts quite a bit, because what we are finding is that a lot of individuals, so traditionally if somebody, you know there is no ramp and the person has a mobility disability or a person isn't provided an interpreter and they are deaf, they make the connection, that is a disability issue, and they either know about the ADA or they do a quick Google search and up pops ADA.gov. So they figure out quickly how to file a complaint. In this context it’s a little different, because a lot of individuals don’t realize that drug addiction is a disability under the ADA. A lot of people don't realize that opioid use disorder falls under that bucket, and would be a disability that is protected under the ADA. It is not the first thing that comes to people's minds. We are finding it a little bit trickier for individuals who are facing discrimination to figure out how to have their rights vindicated. So that’s why we have been trying to do outreach in the area to have individuals file complaints. We are getting complaints from some individuals. We have also as you mentioned tried to partner with disability rights organizations, and local organizations, to try to make sure that they get the word out, so that either they themselves or they can tell individuals about this and they can file complaints. And so that is definitely the primary thing that we have been doing here.
Excellent. Thank you. And a question related to an individual with an opiate use disorder, who is being released from prison, and as part of that must enter some type of community program or housing shelter, where that program is specifically designed to assist individuals who are being released from custody and assisting in that transition to get people back within the community. And where those, for instance, they have policies that prohibit any type of drug use and monitoring of any medications, but where the policy again prohibits that, someone may be taking medication, they are participating in a medication assisted treatment program, so a policy that would not allow someone access to that sort of transition program in the community.
Sure. So we are getting a lot of those sorts of cases are actually covered by the fair housing act as opposed to the ADA, because most of them tend to be at least a slightly long term situation, people tend to live there for a little. They are covered then by the FHA and the ADA but certainly the same sort of blanket prohibition on medical assisted treatment is a red alert, red flag, that there may be some sort of discriminatory action occurring.
All right. All right. Very good. We are near the bottom of the hour here. So I want to thank both of you, Stephanie Berger and Savannah Weston for joining us today, not just for the time that you spent presenting today and answering a myriad of questions, and my service animal questions, but for the time that you spent in preparing for the session and practicing, so it is truly appreciated, and the ADA National Network has as a whole appreciates the great relationship that we have with the Justice Department and the ability to collaborate and work with you, and serve as a conduit out in the field. So we appreciate your time with us today. If you have additional questions, there are ways to get in touch where the ADA Department of Justice ADA hot line, lots of great information is available on ADA.gov, as was mentioned. On the ADA.gov home page, there is a section there, what is new, and that is where you will see postings of recent enforcement activities, and information about any new technical assistance guidance information, that is where you will find it on that home page. It's also there where you can access all of the technical assistance and requirement documentation, the regulations, you can link to all of those on ADA.gov.
As a reminder, that today's session is being recorded, has been recorded, and the audio archive will be available within 24 hours, and we will have an edited transcript up within two weeks’ time. I wanted to remind folks that we will be kicking off our 2018-2019 ADA audio conference season, on October 13. Please be aware that that is a special date, typically the audio conferences are held the third Tuesday of the month. But due to holidays in November and December, we have moved the October session up to -- what am I talking about, October 13 is still the third. No, getting ahead of myself. The session in October is on the 13th and we will be looking at the right to vote, access to, for people with disabilities, and we will have a presentation on the ADA and the rights of persons with disabilities to not only get into their polling place, but to be able to cast a private, secret ballot, just as any other individual is able to do so.
You can find information, that session is open for registration right now. You can find registration information by visiting ADA-audio.org, that is also the location where you can find the full bios for both Savannah Weston and Stephanie Berger and that is also where you can access the archive of today's session, as well as the archives of all of our past audio conference sessions.
If you have questions about this program you can contact us by calling 877-232-1990, and as always, you can locate your regional ADA center by visiting ADAta.org. Once again, I want to thank all of our attendees. We do these programs because of you, and because you have an interest in these programs. You will be sent out an evaluation following today's program. We encourage you strongly to complete that. That helps us evaluate the program. It helps us get ideas on what types of topics and sessions would be of interest to you. So ask you to complete that evaluation that you will be asked to do so. So, again, thank you to Stephanie Berger and Savannah Weston and for joining us today and to all of our attendees, good day.
Ladies and gentlemen, thank you for participating in today’s conference. This does conclude the program. Have a great day.