MOUD Access Toolkit Overview[1]
We designed this toolkit to assist litigators in securing systemic access to medications for opioid use disorder (MOUD) that is in line with the standard of care for treating this disease.
In the past two decades, opioid overdose deaths rose from a few thousand a year[2] to over 100,000 deaths annually by 2021.[3] Opioid deaths exceeded the number of deaths caused by motor vehicle accidents in 2019.[4] In 2015, the opioid epidemic cost the United States economy over $504 billion, and the number rises each year.[5]
Over 6.1 million people in the United States suffer from opioid use disorder (OUD).[6] OUD is a chronic brain disease associated with numerous deadly complications. Those with OUD experience cravings, increased tolerance to opioids (and hence a greater risk of overdose), withdrawal symptoms, a loss of control of their lives, and an increased risk of death.[7] Individuals with OUD urgently need access to effective, evidence-based treatment.
The good news is that OUD is a treatable brain disease with readily available medications. The Food and Drug Administration (FDA) has approved three medications for addressing OUD: methadone, naltrexone, and buprenorphine. Those being treated with MOUDs have significantly increased survival rates from OUD—studies find that fatalities drop between 50%[8] and 82%[9] while being treated with a MOUD. These MOUDs improve patients’ health and wellness by blunting or blocking the effects of illegal opioids, reducing or eliminating cravings for opioid use, and managing withdrawal symptoms (in the case of methadone and buprenorphine).
The bad news is that, despite the strong scientific evidence for MOUD—and the regulatory framework that recognizes their value—barriers to access for MOUD, including the outright prohibition of MOUD at many healthcare facilities and sober living homes, in addition to other discrimination against those with OUD, are rampant throughout the United States. These medication barriers are often the result of outdated understandings of OUD and discriminatory stigma against people who need medicine for this chronic brain disease.[10]
To ensure that this deadly gap between people with OUD and life-saving MOUD is closed immediately—a chasm that is currently causing millions of people across the United States to suffer and die needlessly—litigation is essential to expand MOUD access and to provide redress and damages for those harmed by restrictions on these life-saving medications.
After providing an overview of the science of OUD and MOUD, this toolkit sets out the tort and related federal and state statutory options for private enforcement actions. The causes of action discussed include the ADA and Rehabilitation Acts, the Fair Housing Act, the Eighth and Fourteenth Amendments, and state tort claims including lack of informed consent, medical malpractice, and common law negligence. Within each topic, the toolkit identifies critical guidance and precedent, and flags potential challenges—such as administrative exhaustion or religious exemptions—and presents caselaw and arguments for addressing them. The toolkit also provides an index of ongoing and recent cases, with links to briefings and motions at various stages, along with court orders in these cases, for use and review by practitioners.
This toolkit is a living document, with amendments and links to other briefings and materials from practitioners always welcome. If you have anything you would like to contribute, please contact Justice Catalyst Law at MOUD_Toolkit@justicecatalyst.org.
Table of Contents
MOUD Access Toolkit Overview.. 1
The Science of Opioid Use Disorder. 6
Opioid Addiction is a Brain Disorder. 6
Three Stages of Opioid Use Disorder. 7
OUD is a Chronic Brain Disease that Often Involves Relapse. 8
“Detox” and Abstinence Programs for Opioids Fail to Meet the Standard of Care. 9
The Three Versions of MOUD are Not Interchangeable. 10
Opioid Withdrawal is Often Painful and Forced Withdrawal is Dangerous 13
MOUD Does Not Substitute One Addiction for Another. 13
MOUD is the Standard of Care for Treating Opioid Use Disorder. 14
MOUD Regulation Remains Onerous. 16
Discriminatory Stigma is a Barrier to Ensuring MOUD Access to Save Lives and Protect Communities 17
Causes of Action for MOUD Access. 19
The ADA and Rehabilitation Act 20
Overview and Statutory Basis 20
ADA and Rehabilitation Act Elements 21
First Element: Qualified Individual with a Disability. 22
Second Element: Preclusion From Service, Program, or Activity. 25
Strategic Decisions in ADA and Rehabilitation Act Litigation. 26
Attorney’s Fees and Costs under the ADA and Rehabilitation Act 28
Common Challenges to ADA and Rehabilitation Act Litigation. 28
Religious Exemption Defense 28
Elements of a Fair Housing Act Claim.. 31
Failure of Reasonable Accommodation Claim.. 32
Common Challenges to Fair Housing Act Litigation. 32
Religious Exemption Under the FHA.. 32
Physician-Patient Relationship. 33
Liability: Who or What to Sue 36
The Two Standards of Informed Consent: Reasonable Patient vs. Reasonable Physician. 38
Informed Consent in the Halfway House Context (Fourteenth Amendment Violation) 39
Common Law Negligence Elements 39
The Eighth and Fourteenth Amendments. 40
Prison Litigation Reform Act Considerations 42
Section 1997e Only Covers Prisoners 42
The PLRA Exhaustion Requirement 44
Organizational and Associational Standing to Avoid PLRA Exhaustion Problems 46
Section 3626 and MOUD Claims Seeking Injunctive Relief 47
Limitation on attorney’s fees 48
US Government and Private Enforcement Actions and Settlements. 49
Carceral Case List and Citations 52
Non-Carceral Case List and Citations 62
The Science of Opioid Use Disorder
Understanding opioid use disorder (“OUD”) is an essential first step in advocating for and understanding the importance of MOUD access. Many people do not know that OUD negatively impacts the brain’s dopamine system and that there are medications that can effectively treat this brain disease.
This section addresses common misconceptions about OUD and treatment. Increasing understanding and clearing confusion about this medical issue is vital for successful MOUD access litigation.
Opioid Addiction is a Brain Disorder
Opioids are a class of drugs that inhibit pain and cause feelings of pleasure. Some opioids, such as oxycodone, have accepted medical uses, including managing severe or chronic pain. Others, such as heroin, are illegal and not used as medicine in the United States. All opioids are highly addictive.
OUD is a chronic brain disease that can have deadly consequences. Symptoms include uncontrollable cravings for and compulsive use of opioids, decreased sensitivity to them, and potentially excruciating withdrawal symptoms. Withdrawal symptoms can include extreme aches, sweats, restlessness, insomnia, shaking, constant diarrhea, an inability to eat, nightmares, hallucinations, and the return of intense opioid cravings that become stronger the longer one is without opioids or medications for this brain disorder.
OUD breaks down a person’s dopamine system. Dopamine plays a key role in feeling pleasure, movement, memory, and other bodily functions, and is necessary for the brain to feel a sense of normalcy and perform cognitive functions. People who have dopamine disruptions due to OUD have difficulty enjoying life activities, feeling normal, and often experience depression, anxiety, and irritability.
OUD is a progressive brain disease, meaning it often becomes more severe over time. People who regularly use opioids develop a tolerance to them and need to use increasing amounts to feel not just the desired effect (the heightened dopamine levels secured at first usage), but merely to return to a “normal” or “baseline” level (see figure below).[11] At high doses, opioids depress the respiratory system, sometimes causing the user to stop breathing and die. Without effective treatment, people with OUD are often unable to control their opioid intake, leading to severe physical and emotional harm.
Three Stages of Opioid Use Disorder
People who struggle with OUD are frequently stuck in a three-stage cycle that courts and law enforcement officials too often misunderstand. The first is the binge/intoxication stage (using opioids). The second is the withdrawal/negative stage (suffering the negative physical and emotional results of coming down from an opioid high or intoxication). The third is the preoccupation/anticipation stage (seeking or wanting opioids to use again). Each stage is associated with changes in neurobiological mechanisms.[12]
The first stage – binge/intoxication – initially includes enhanced dopamine activity. Dopamine is a chemical released in the brain that helps with feeling pleasure. With chronic opioid use, however, people experience changes in their brain, including downregulation of dopamine receptors (which means it takes progressively higher doses to get back to a normal baseline level and then ever higher doses to reach some pleasure effect), conditioned response to cues in the environment related to opioid use, and a decreased ability to enjoy rewards due to changes in the brain’s dopamine, receptor, and stress systems.[13]
The second stage – withdrawal/negative affect – results in a decreased ability to cope with stress and negative affective or emotional states in the absence of opioid use. Neurotransmitters are the body’s chemical messengers, allowing communication from one nerve cell to the next nerve cell, muscle, or gland. They help facilitate movement, feeling, and responding to the local environment. During this stage, people experience decreases in reward neurotransmitters. This decrease includes diminished dopamine activity and a reduction in dopamine and serotonin transmission, which help ensure cells can communicate with each other.[14] These neurobiological changes cause anxiety, stress, depression, and discomfort when the person is not using opioids or is taking less than needed.
The third stage – preoccupation/anticipation – involves changes in the brain’s prefrontal cortex. The prefrontal cortex is the part of the brain that helps in decision making, executive function, planning, self-control, and recognizing the importance of one reward (e.g., safety and shelter) over another (e.g., feeling a “high” from substance use).[15] These neurobiological changes are minimally responsive to willpower alone. This, in turn, perpetuates the cycle of OUD, commonly (and generally unhelpfully) referred to as “addiction,” making it very difficult, and often impossible, for people to control their use of opioids without medication.
OUD is a Chronic Brain Disease that Often Involves Relapse
Like other chronic diseases, opioid use disorder often involves cycles of relapse and remission.[16] Rather than a linear progression in which a person attains complete abstinence, successful recovery is often characterized by sustained periods of abstinence, punctuated by relapses in which the person returns to drug use.
These relapses are frequently triggered by an increase in stress,[17] a traumatic event, or a lapse in treatment. Relapse can also occur during or after treatment and often signals a need for adjusting the medication or starting a new prescription. The typical treatment goal for OUD is thus to maximize periods of active recovery and minimize periods of relapse. Maximized recovery is achieved by ensuring continued medical treatment and encouraging the use of coping mechanisms and support systems.
Courts have recognized that this chronic brain disorder is often associated with cycles of relapse and that relapse is not a reason to deny MOUD to people who would benefit.[18] As a federal judge in Taylor v. Wexford Health, a lawsuit involving a person who entered custody in a West Virginia jail with a positive urine screen for illicit substances, explained, “it would be entirely illogical to refuse to treat opioid use disorder in patients who use opioids.”[19] Doing so, absent a legitimate medical or security reason, likely violates federal civil rights laws and constitutional protections.[20]
“Detox” and Abstinence Programs for Opioids Fail to Meet the Standard of Care
Contrary to a common stereotype, people with opioid use disorder cannot simply “will” or “reason” their way out of continued opioid use, even when they are aware of the dire consequences. Continued use does not indicate a person lacks willpower but rather is the predictable outcome of chemical changes in the brain that result in powerful opioid cravings. OUD has thus proven resistant to non-medication-based treatments, such as abstinence-only, counseling, and twelve-step programs, which have been popular in treating alcoholism and other addictions.[21]
Medically-supervised withdrawal (commonly referred to as “detox”) is not, by itself, an evidence-based treatment for OUD and is associated with high rates of return to substance use with a risk of overdose.[22] Individuals with OUD experience opioid withdrawal upon abrupt cessation of opioid use. Symptoms of opioid withdrawal include anxiety, restlessness, agitation, tachycardia, elevated blood pressure, stomach cramping, nausea, vomiting, diarrhea, tearing eyes, joint/muscle aches, tremors, sweating, and insomnia.
Detox can be accompanied by the intervention of medications to reduce the intensity of withdrawal. Medications range from targeting symptoms (e.g., acetaminophen or ibuprofen for pain, dicyclomine for stomach cramping) to using methadone or buprenorphine (FDA-approved medications for OUD—see next subsection)[23] to provide relief of withdrawal symptoms. It is important to note that, compared to symptomatic (or no) treatment, methadone and buprenorphine are more effective in reducing symptoms of withdrawal, maximizing continuity of treatment for patients experiencing withdrawal symptoms, and supporting the completion of withdrawal management.[24]
Many medically supervised withdrawals (detoxes) are performed in an inpatient setting over 3-5 days. Patients frequently continue to experience opioid withdrawal symptoms and a negative affective state, as well as cravings, for months after discharge from medical withdrawal.[25] Return to opioid use is common in cases where MOUD is not continued after a “detox.”[26] Therefore, MOUD-free detox is more painful for patients, more dangerous, and less effective in the long term than treating OUD with appropriate medication.
Despite the dangers of detox programs for OUD, 7% of substance abuse treatment facilities reported that they do not use MOUD nor accept clients using MOUD.[27] Rates of MOUD administration are low even among providers who allow MOUD, with 51% of substance abuse treatment facilities reporting that they accept clients on MOUD but that the medications originate from or are prescribed by another institution.[28]
Untreated OUD has costs beyond patient suffering and increased mortality. These costs include: increased criminal justice involvement; babies born with opioid dependencies; more rapid infection disease transmissions; greater frequency of overdoses and deaths; and lost workforce productivity.[29] Untreated MOUD also burdens the health care system, as patients with OUD who do not receive MOUD are also significantly more likely, compared to those who receive MOUD, to have an unplanned hospital readmission (20% vs. 13% for those with MOUD, p < 0.001).[30]
The Three Versions of MOUD are Not Interchangeable
The Food and Drug Administration has approved three medications for treating OUD: methadone, buprenorphine, and naltrexone.[31] These MOUDs are different and cannot be used interchangeably for every patient.[32] The goal of these medications is to reduce cravings, reduce opioid use and associated morbidity and mortality, and improve overall function.[33]
Methadone and buprenorphine are “agonists,” which means they activate opioid receptors in the brain to relieve withdrawal symptoms and control opioid cravings. Methadone is a “full agonist,” meaning that it fully activates opioid receptors (resulting in a stronger therapeutic effect). Buprenorphine is a “partial agonist,” meaning that it partially activates opioid receptors (resulting in a different but still therapeutic effect) and has activity at a variety of other opioid receptors that contribute to its therapeutic benefit in decreasing cravings and improving negative affective states associated with continued opioid use.[34] Buprenorphine also binds to receptors more effectively than other opioids and has a slow dissociation from the opioid receptor, allowing it to have a more prolonged effect with less intense withdrawal experiences when discontinued abruptly, relative to other opioids.[35]
Because methadone and buprenorphine bind to the opioid receptors they stimulate, they block the receptors from being activated by more powerful opiates and opioids. By binding to receptors, these two medications can prevent the pain of opioid withdrawal.[36] When the receptors are occupied by methadone and buprenorphine, patients cannot get “high” from illicit drugs like heroin and fentanyl.[37] This lack of stimulation trains a brain negatively impacted by opioid addiction to gradually decrease its response to, and interest in, opioids. Because of their proven success in reducing opioid cravings, the World Health Organization has recognized methadone and buprenorphine as “essential medicines.”[38]
Naltrexone,[39] the third FDA-approved MOUD, is an extended-release “antagonist.” Naltrexone binds to the same receptor as other opioids but does not activate the receptor and blocks activity at the receptor site. It therefore blocks other opioids from binding to the receptor, thereby reducing or blunting the intoxicating effects of illicit opioids. Such blunting helps mitigate cravings for individuals with OUD. Individuals on naltrexone do not develop physical dependence or experience withdrawal upon discontinuation of the medication. However, they are at a heightened risk of experiencing opioid overdose if they subsequently return to opioid use due to loss of tolerance to opioids while on naltrexone treatment.
MOUD Treatment is Individualized and Often Lengthy
MOUD is necessarily individualized. A patient may do well on any form of MOUD or find that only one provides effective treatment without causing significant adverse side effects. A MOUD that treats one person’s opioid cravings may be entirely ineffective for someone else. Additionally, the three FDA-approved MOUDs are not substitutes for one another: patients should not be forced or coerced to transition from, for example, an agonist treatment to an antagonist treatment.[40] The availability and sustainability of multiple treatment options is essential for treating OUD.[41]
Treatment retention is often crucial for MOUD effectiveness. In general, the longer a patient stays in treatment, the better the treatment outcome will be. Studies have shown that naltrexone produces poorer treatment retention outcomes than methadone and buprenorphine.[42] In clinical practice, if a patient does not have a strong preference for naltrexone and is actively using opioids, buprenorphine or methadone are considered better treatment options.
Contrary to the expectations of many judges and law enforcement officers, there is no set or recommended duration for MOUD treatment. As the Substance Abuse and Mental Health Services Administration (“SAMHSA”) has recognized, treatment for opioid use disorder, like treatment for other chronic diseases such as insulin for diabetes, is often lengthy and can last for years or even a lifetime.[43]
Access to only one type of MOUD is not the standard of care and can be dangerous because not all patients will benefit from one medication. For example, many individuals who are active in their opioid use and seeking treatment may not be able to abstain from short-acting opioids for 7-10 days and long-acting opioids for 10-14 days, as required to initiate naltrexone. The majority of individuals who are initiating treatment in acute care settings or ambulatory practices choose to start buprenorphine or methadone, as these MOUDs are not associated with delays in treatment initiation, and both of these MOUDs result in a reduction in symptoms of painful opioid withdrawal.[44] If one MOUD is working well for a patient, it is not the standard of care to involuntarily terminate the patient from that medication, even if the patient uses illicit opioids while on the MOUD.[45]
In short, there is not a one-size-fits-all medication for the treatment of opioid use disorder, and the standard of care requires that patients have access to and be offered all three versions of MOUD (methadone, buprenorphine, and naltrexone), as no single medication is a perfect fit for all patients.[46] While each patient’s needs are different, all three FDA-approved MOUDs are safe to use for “months, years, or even a lifetime,” according to SAMHSA.[47]
Opioid Withdrawal is Often Painful and Forced Withdrawal is Dangerous
People with OUD often experience painful physical and mental withdrawal upon the abrupt cessation of opioid use and the sudden (non-tapered) end of methadone and buprenorphine. Symptoms include anxiety, restlessness, agitation, tachycardia, elevated blood pressure, stomach cramping, nausea, vomiting, diarrhea, tearing eyes, joint/muscle aches, tremors, sweating, insomnia, and suicidal ideation. Forced detox from MOUD also often results in the return of intense opioid cravings.
A policy of forced detoxification is dangerous and violates the standard of care.[48] Absent a specific medical justification for forced detoxification and an agreement between the doctor and patient to do so, forced withdrawal should be avoided.
MOUD Does Not Substitute One Addiction for Another
A common misconception is that MOUDs—which are classified as opioids—substitute one drug for another.[49] This is inaccurate and often is one of the main justifications for denying MOUD access. As SAMHSA makes clear, MOUDs are “evidence-based treatment options” that “relieve the withdrawal symptoms and psychological cravings that cause chemical imbalances in the body.”[50]
Downregulation and desensitization of opioid receptors from prolonged opioid use result in reduced receptor response to opioids. Receptors with reduced responses lead to negative affective states and craving in the absence of opioid use in someone with an OUD.[51] For those with a tolerance for opioids, MOUDs do not produce intoxication but rather relieve withdrawal and decrease cravings, allowing individuals to regain control of their lives.[52] All three FDA-approved MOUDs reduce or block the euphoric or intoxicating effects of other opioids.[53]
Studies show that MOUD drugs are rarely diverted or misused—that is, used without a prescription. Among all opioid medications (i.e., including pain killers like fentanyl), methadone and buprenorphine only make up 15% of diversion reports, while Naltrexone has no diversion risk at all.[54] When diversion of MOUDs does take place, two studies of people with OUD found that such diversion was for therapeutic purposes, such as reducing withdrawal symptoms or replacing heroin usage).[55] Another study found that the diversion of methadone was most commonly attributable to missed medication pickup.[56] Even among the small population of those who attempt to use buprenorphine to “get high,” diversion reduces over time, suggesting that the drugs’ blunted rewarding effects prevent misuse.[57] Patients in OUD treatment programs rarely report that buprenorphine was their primary drug of misuse.[58]
The Pew Charitable Trusts has a helpful guide for those seeking more information about MOUD treatment.[59]
MOUD is the Standard of Care for Treating Opioid Use Disorder
Numerous governmental and public health bodies have uniformly endorsed the critical role of MOUDs in addressing the opioid epidemic. These entities include: the American Medical Association;[60] the American Society of Addiction Medicine;[61] the U.S. Department of Health and Human Services; the Food and Drug Administration;[62] the National Institute on Drug Abuse; the Substance Abuse and Mental Health Service Administration;[63] the World Health Organization;[64] and the White House Office of National Drug Control Policy,[65] among others.
MOUD is the standard of care because it is effective at treating OUD. SAMHSA notes that all three MOUDs “were each found to be more effective in reducing illicit opioid use than no medication in randomized clinical trials, which are the gold standard for demonstrating efficacy in clinical medicine.”[66] The following footnote includes numerous citations to these randomized clinical trial studies, which can be cited in court filings to demonstrate the effectiveness of MOUDs.[67] MOUDs are also associated with “reduced mortality, criminal behavior, and HIV,” according to SAMHSA.[68] Because of their wide-ranging therapeutic effectiveness, MOUDs have been shown to reduce the risk of overdose death from opioids by 82%.[69]
It is worth noting that there has been a shift in medical attitudes towards MOUDs in recent years. Previously, the term “Medication Assisted Treatment” (“MAT”) was common parlance when discussing OUD. However, “MAT” is generally no longer used by those who treat OUD because it might imply that medications play a secondary role in treatment or that medications “assist” non-pharmacological treatments for OUD. That does not accurately describe the relevant medical science and standard of care for OUD. Buprenorphine and methadone alone stand out as effective treatments for OUD and prevent overdoses and drug use.[70] Behavioral health interventions for patients on MOUD do not consistently improve treatment outcomes and are not an appropriate requirement for those receiving MOUD.[71]
In other words, it is not the standard of care that a patient receiving MOUD engage in any specific behavioral therapy or counseling as a condition of access to MOUDs. A patient should be offered psychotherapy and psychosocial support, but that patient’s decision to decline such behavioral therapy should not preclude or delay MOUD treatment with appropriate medication management.[72]
MOUD Regulation Remains Onerous
Access to MOUD is hindered not only by stigma and discrimination but also by overly complicated regulations. As one set of public health researchers noted, “many of the existing barriers and regulatory hurdles are themselves not evidence-based, and have historical roots in misperceptions and stigma around substance use.”[73] For example, despite one study finding that the rate of buprenorphine consumption increased while misuse and diversion decreased between 2015 and 2019,[74] MOUDs can only be prescribed in person rather than via telemedicine.[75] Such regulation stands in stark contrast to opioid painkillers like hydrocodone and oxycodone, which are much more often misused than MOUDs but are not subject to the same regulatory requirements.[76]
Federal agencies, Congress, and state legislatures are starting to address these regulatory issues—though more must be done. In 2023, Congress passed the Mainstreaming Addiction Treatment Act, which removed the federal requirement for MOUD prescribers to submit a separate waiver request to the Drug Enforcement Administration (DEA) to prescribe buprenorphine.[77] Under this law, physicians with a Section III DEA registration can now prescribe buprenorphine for OUD.[78]
While states cannot pass laws regarding the regulation of opioids, some are attempting to streamline the MOUD prescription process. Arkansas requires that one formulation of each of the three FDA-approved MOUDs be available as a preferred drug without prior authorization.[79] Medicaid-managed insurance plans in Colorado may not require prior authorization for MOUD within the plan.[80] Delaware[81] and Montana[82] now prohibit health insurance providers from imposing a prior authorization requirement on MOUD prescriptions. Maine imposes a slightly less stringent requirement for insurance plans to waive prior approval for at least one MOUD prescription for pregnant people.[83] Under Maryland law, individual and group plans cannot require prior authorization for MOUD to treat OUD.[84] Missouri prohibits prior authorization requirements when MOUD is prescribed through an opioid treatment program.[85] Arkansas,[86] Delaware,[87] Florida,[88] New Hampshire,[89] and Vermont[90] have also all streamline access to MOUD through telehealth appointments.
Discriminatory Stigma is a Barrier to Ensuring MOUD Access to Save Lives and Protect Communities
The entrenched stigma towards opioid use disorder generally, and MOUD specifically, obstructs access to these life-saving medications. This reproach is grounded in a deeply rooted and mistaken belief that opioid use disorder is a choice and a moral failing rather than a brain disease that negatively impacts the brain’s dopamine system.
Research confirms that stigma is a formidable barrier to a patient’s access to necessary MOUD treatment. As explained in an article published in the scientific journal Substance Abuse and Misuse, many people inaccurately regard MOUD as merely substituting one drug for another, equating the professional administration of an essential and prescribed medicine with the use of illicit drugs.[91] One widely cited study finds that stigma towards MOUD can even impact treatment professionals, who are negatively judged or mistreated because of the services they provide to a stigmatized patient population.[92] The same article reported that health providers who do not offer MOUD services exhibit stigmas both towards those with OUD and providers who dispense MOUDs.[93]
Stigma towards those with OUD is also prevalent amongst those who work in carceral settings[94] and social service providers in housing and child welfare.[95] In the last decade, advocates have worked to develop communications strategies to communicate the need for MOUD access to key providers, such as health care workers, lawyers, and correctional officers.[96] Studies have found that presenting sympathetic narratives[97] regarding access barriers for those with OUD is effective in reducing stigma.[98]
According to National Institute on Drug Abuse Director Dr. Nora D. Volkow, stigma “is especially powerful in the context of substance use disorders. Even though medicine long ago reached the consensus that addiction is a complex brain disorder, those with addiction continue to be blamed for their condition.”[99]
Likewise, former FDA Commissioner Dr. Scott Gottlieb has warned that the push to “expand access to high-quality, effective medication-assisted treatments” to patients with OUD must include “countering the unfortunate stigma that’s sometimes associated with their use.”[100]
Because stigma is a barrier to MOUD access, medical and governmental authorities have identified combating negative misconceptions and stereotypes about this medication and people with opioid use disorder as key to improving health outcomes for people with opioid addiction and, ultimately, ending the opioid epidemic. The Department of Health and Human Services,[101] the American Medical Association’s Opioid Task Force,[102] and the Centers for Disease Control[103] have identified countering stigma as integral to addressing the opioid crisis. Similarly, the National Institutes of Health[104] has funded clinical interventions seeking to reduce the effect of stigma on care delivery to people with OUD.
Causes of Action for MOUD Access
When MOUD access is restricted or denied, potential plaintiffs can look to numerous causes of action. These include:
• The Americans with Disabilities Act (“ADA");
• The Rehabilitation Act;
• Fair Housing Act (“FHA”);
• State tort claims, including lack of informed consent, medical malpractice, and negligence claims;
• Eighth and Fourteenth Amendment claims.
This toolkit provides an overview of these legal claims, including guides on damages and injunctive relief, the elements of the claims, and common challenges plaintiffs face.
The ADA and Rehabilitation Act
Overview and Statutory Basis
The ADA[105] and Rehabilitation Act[106] are two federal laws that prohibit discrimination because of disability. The ADA protects against discrimination by employers (Title I), state and local governments (including carceral settings, courts, and law enforcement—Title II), and in places of public accommodation (nursing facilities, recovery homes, health care providers—Title III).
Title I of the ADA (“Title I”) provides, as a general rule, that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”[107] The goal of Title I is to “eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity.”[108]
Title II of the ADA (“Title II”) prohibits disability discrimination by state and local governments,[109] and Section 504 of the Rehabilitation Act prohibits such discrimination by federally operated or assisted programs.[110] Title II of the ADA applies to the “services, programs, or activities of a public entity . . . .”[111] “Public entity” includes all state and local governments, as well as “any department, agency, special purpose district, or other instrumentality of a State or States or local government.”[112] To the extent that state and local government programs receive federal financial assistance, they too are subject to the Rehabilitation Act. Because OUD is a disability,[113] these two laws jointly prohibit medical providers from discriminating against people with opioid use disorder who are receiving or need MOUD.[114]
Congress enacted the ADA and Rehabilitation Act “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[115] Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”[116] To prevent discrimination, public entities must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program, or activity.”[117]
Title III of the ADA also allows claims against private entities (such as hospitals, housing providers, private medical providers in jails and prisons, and halfway houses, amongst others) for not allowing or improperly restricting MOUD access to those in need. Title III prohibits “discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”[118] A private entity is considered to offer public accommodations “if the operations of such entities,” including the “professional office of a health care provider, hospital, or other service establishment,” affects commerce.[119] “Commerce” is defined as “travel, trade, traffic, commerce, transportation, or communication . . . among the several States.”[120]
Likewise, Section 504 of the Rehabilitation Act protects qualified individuals from discrimination based on their disability. The nondiscrimination requirements of the Rehabilitation Act apply to organizations that receive financial assistance from any Federal department or agency. Section 504 forbids such entities from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. This provision is important because it ensures that some of the religious exemption defenses available to a defendant under the ADA do not apply under the Rehabilitation Act. For more on this topic, see the “Common Challenges to ADA and Rehabilitation Act Litigation” subsection, infra.
ADA and Rehabilitation Act Elements
The ADA and Rehabilitation Acts have similar three-pronged analyses. The precise wording of the elements varies by court and also depends—for the ADA—on which Title is alleged to be violated. While the elements can be distilled down to the following three generalities, we encourage you to review the footnote for the precise wording courts have used for allegations under Titles I, [121] II, [122] and III[123] of the ADA and under Section 504 of the Rehabilitation Act[124]. To prevail on a claim for MOUD access under the ADA or the Rehabilitation Act, a plaintiff must demonstrate that they:
(1) are a qualified individual with a disability;
(2) were or will be precluded from participating in a service, program, or activity, or otherwise subject to discrimination; and
(3) were denied such access because of their disability.[125]
First Element: Qualified Individual with a Disability
The first element of an ADA or Rehabilitation Act claim requires the claimant to be a qualified individual with a disability. We first address the meaning of “disability” before turning to who a “qualified individual” is. Most of the guidance in this section comes from the Department of Justice’s 2022 guidance titled “The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery.”[126] We encourage litigators to read and cite this instrumental guidance.
Disability: The Acts provide three ways for an individual to establish disability:
(1) a current physical or mental impairment that substantially limits one or more major life activities;
(2) a record of such an impairment; and/or
(3) being regarded as having such an impairment.[127]
Courts have routinely held that OUD is a disability for ADA and Rehabilitation Act purposes.[128] Drug addiction is considered a physical or mental impairment under the ADA and Rehabilitation Act.[129] People with OUD often experience a substantial limitation of one or more major life activities, such as caring for oneself, learning, concentrating, thinking, communicating, working, or operating major bodily functions, including neurological and brain functions.[130] The substantial limitation prong “is not meant to be a demanding standard and shall be construed broadly in favor of expansive coverage.”[131] The DOJ notes that these acts also protect “individuals who are in recovery but who would be limited in a major life activity in the absence of treatment and/or services to support recovery.”[132] “It is illegal to discriminate against [those participating in rehabilitation or drug treatment programs] based on their treatment for OUD.”[133]
However, the DOJ also notes in its ADA MOUD guidance that “the ADA does not protect individuals engaged in the current illegal use of drugs if an entity takes action against them because of that illegal drug use.”[134] “‘Current illegal use of drugs’ means 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.”[135] An individual is not considered to be illegally using drugs if “the individual uses the medication under the supervision of a licensed health care professional, including primary care or other non-specialty providers.”[136] Such medications include FDA-approved MOUDs.[137]
Importantly, though, current illegal drug use cannot be used as justification to deny health services or services provided in connection with drug rehabilitation care if the individual is otherwise entitled to such services.[138] Thus, illegal drug use is not a bar to MOUD access, given that MOUD is a healthcare service that cannot be restricted when illegal drug use is part of the essential definition of the health condition for which the person is seeking treatment.
Qualified individual: To be protected from discrimination under the ADA and Rehabilitation Act, individuals with a disability must be “otherwise qualified” for the services, programs, or activities at issue. An individual is “qualified” if, “with or without reasonable modifications to rules, policies, or practices,” the individual “meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity.”[139]
Individuals must prove they are “eligible for the participation in the program sought.”[140] To determine whether someone is “eligible,” courts first ascertain the “service, program, or activity” at issue and then determine its essential eligibility requirements.[141] For example, in Pennsylvania Dep’t of Corrections v. Yesky, incarcerated individuals sued the Department of Corrections for denying them admission to prison boot camp because of their disability (hypertension), and the United States Supreme Court held that the term “qualified individual with a disability” can be applied to prisoners who are eligible for and seek access to prison programs.[142]
Individuals challenging discrimination are not “otherwise qualified” if their participation in the service, program, or activity at issue would pose a “significant risk to the health or safety of others by virtue of the disability that cannot be eliminated by reasonable accommodation.”[143] The significant risk test is a “rigorous objective inquiry” that requires reliance on current medical knowledge or the best available objective evidence and not subjective speculation.[144] To disqualify an individual from protection under the ADA and Rehabilitation Act, the risk “must be substantial, not speculative or remote” and must not be based on “subjective judgments” of the individuals or officials supposedly at risk.[145] One court explained that the inquiry requires a “fact-intensive determination,” taking into consideration four factors: “the nature, duration, and severity of the risk, and the probability that the potential injury will occur.”[146] The inquiry must be based on “current medical knowledge” or “best available objective evidence,” not on “stereotypes or generalizations.”[147]
Second Element: Preclusion From Service, Program, or Activity
The second element of an ADA or Rehabilitation Act claim requires that the claimant “[was] or will be precluded from participating in a service, program, or activity, or otherwise subject to discrimination.” Discrimination can be shown through disparate treatment (“intentional discrimination”), disparate impact, or a failure to provide reasonable accommodations.[148] Courts interpret ADA and Rehabilitation Act claims “in lockstep.”[149]
Third Element: Denied Access Because of Disability
The third element requires that the claimant prove causation: that they were denied access to a service, program, or activity because of their disability.[150] Courts utilize a fact analysis similar to other tort causal inquiries. For instance, a federal district judge in Louisiana denied summary judgment for an employer who terminated the plaintiff after the plaintiff refused to stop taking Suboxone to manage his OUD.[151] The disability in this case was not just the plaintiff’s OUD, “but the fact that he must take certain [MOUDs] to manage the condition. It is undisputed that [the defendant] refused to allow [the plaintiff] to return to work because of his use of Suboxone.”[152]
MOUD is both a health service and drug rehabilitation care. This means that a health provider—including jails and prisons—cannot escape their obligation to provide MOUD to people with OUD needs by claiming that a person is not entitled to the medication under the ADA or Rehabilitation Act due to current illegal drug use.
For example, in Taylor v. Wexford Health, the court rejected the West Virginia Department of Corrections’ argument that the ADA did not protect the plaintiff who needed MOUD for his acute opioid cravings and withdrawal symptoms because he tested positive for illegal drugs when he entered custody.[153] The court held that under the ADA’s health services and drug rehabilitation case exceptions, an eligible individual cannot be denied these medical services because of any current illegal drug use. [154] In explaining its ruling, the court emphasized that “it would be entirely illogical to refuse to treat opioid use disorder in patients who use opioids.” [155]
Strategic Decisions in ADA and Rehabilitation Act Litigation
Class Certification
Many MOUD access claims under the ADA and Rehabilitation Act are brought as class action claims.[156] Class actions can ask for both injunctive relief (Federal Rule of Civil Procedure 23(b)(2)) or monetary damages (Federal Rule of Civil Procedure 23(b)(3)).
Injunctive Class: An injunctive relief class under Rule 23(b)(2) is appropriate where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”[157] A “prime example of a Rule 23(b)(2) class action” occurred in M.C. v. Jefferson Cnty., New York, where the plaintiffs “challeng[ed] a systemic policy or practice by which all class members face[d] denial of prescribed MOUD in violation of their . . . statutory rights.”[158] Courts consistently find that “categorical polic[i]es . . . call for categorical relief.”[159]
Damages class: A class seeking damages relief under Rule 23(b)(3) must show the court that “the questions of law or fact common to class members predominate over any questions affecting only individual members (predominance), and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy (superiority).”[160]
The predominance inquiry assesses whether the class’s interests are “sufficiently cohesive to warrant adjudication by representation.”[161] This inquiry weighs the “relationship between common and individual questions in a case.”[162] The comparison is not a choice between “class litigation and no litigation at all, but between class litigation and actions conducted separately by individual class members.”[163] Therefore, when “one or more central issues in the action are common to the class and can be said to predominate,” the litigation can proceed under Rule 23(b)(3) even if there are other matters to resolve separately, like damages or affirmative defenses.[164] These damages or affirmative defense issues are resolved in a post-liability “phase II” analysis later in the trial.[165]
When establishing a damages class in a discrimination case[166] (such as claims made under the ADA or Rehabilitation Act), courts will often utilize a “Teamsters framework,” which is a two-phase model of damages determination. In phase I—the “initial, ‘liability’ stage”—the plaintiff class establishes that discrimination is the defendant’s “standard operating procedure[,] rather than the unusual practice.”[167] If the plaintiffs establish classwide liability, the court can award injunctive relief and conduct “additional proceedings” to “determine the scope of individual relief.”[168] In phase II—the “remedial stage”—each class member is presumed to have experienced discrimination, and the defendant has the burden of disproving each claim.[169] It is at this stage that damages are also determined.
Attorney’s Fees and Costs under the ADA and Rehabilitation Act
Both the Rehabilitation Act and ADA allow the Court to award attorney’s fees and costs to the “prevailing party,” other than the United States, in any action or proceeding to enforce the Rehabilitation Act[170] or ADA.[171] It is important to note that a prevailing defendant can also receive costs and fees if the court “finds that the plaintiff’s claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.”[172]
While only a “prevailing party” can collect attorney’s fees and costs, the term “prevailing party” is “a legal term of art.”[173] A party prevails when “a material alteration of the parties’ legal relationship has taken place as a result of the litigation,” and the alteration has “judicial imprimatur” (i.e., judicial endorsement).[174] Judicial imprimatur can occur with a “judgment on the merits,” “a court-ordered consent decree,” or potentially other forms of court-ordered settlements (including “an order short of a formal consent decree”).[175] Rather than looking exclusively at the label attached to a court order, the court needs to assess whether the requirement for imprimatur was met by asking if (1) “the change in the legal relationship between the parties was ‘court ordered,’” (2) the court conducted multiple appraisals of the fairness of the settlement and (3) the court maintains oversight of the agreement and the “ability to enforce the obligations imposed on the parties.”[176]
Common Challenges to ADA and Rehabilitation Act Litigation
Religious Exemption Defense
Title III of the ADA exempts from its nondiscrimination requirements “religious organizations” and “entities controlled by religious organizations, including places of worship.”[177] This is an affirmative defense that must be invoked in the answer to the complaint.[178] An affirmative defense is “one that admits the allegations in the complaint, but avoids liability . . . by new allegations of excuse, justification or other negating matters.”[179]
Despite being largely interchangeable, [180] the ADA and Rehabilitation Act differ in one key area: Section 504 of the Rehabilitation Act contains no such religious exemption.[181] Section 504 is Spending Clause legislation: its enforcement provisions are tied to a contractual relationship between the government and the entity agreeing to perform government services.[182] “Unlike ordinary legislation [like the ADA], which imposes congressional policy on regulated parties involuntarily, Spending Clause legislation operates based on consent: in return for federal funds, the [recipients] agree to comply with federally imposed conditions.”[183]
There is no First Amendment right to accept federal funds on certain conditions—like Section 504 nondiscrimination provisions—and then renege on those promises.[184] The Supreme Court has explained that “Congress is free to attached reasonable and unambiguous conditions to federal financial assistance that [private] institutions are not obligated to accept.”[185]
Besides the fact that Section 504 does not contain a religious exemption defense, it is also a useful avenue for navigating a free exercise challenge. Section 504 is a neutral, generally applicable law, and “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”[186]
We note that a religious exemption defense is very factually explicit and can be challenging to brief for the first time. We highly recommend reading the preliminary injunction brief in Tassinari v. The Salvation Army (D. Mass. 2021), which addresses the religious exemption argument at length.[187]
Statute of Limitations
The statute of limitations for the ADA and the Rehabilitation Act is three years. Most claims arising from actions three years before an administrative complaint is filed are no longer actionable.[188] However, it is important to note that the statute of limitations can be tolled in certain situations.
For example, where continuous rights violations occur, “a plaintiff may obtain recovery for discriminatory acts that otherwise would be time-barred so long as a related act fell within the limitations period.”[189] Conduct becomes continuous—and therefore tolls the statute of limitations—when the conduct takes place “over a series of days or perhaps years.”[190] Such continuous—or “systemic”—violations occur “when the defendant maintains a discriminatory policy that has harmed the plaintiff and continues into the limitations period.”[191] The plaintiff need only demonstrate that they were harmed by the application of a discriminatory policy or practice and that the policy or practice continued into the limitations period.[192] Difficulties emerge when the discrimination is a series of discrete acts—also termed “serial violations”—with the Supreme Court noting that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”[193]
To establish a continuing violation, the plaintiff “must allege that a discriminatory act occurred or that a discriminatory policy or practice existed” within the statutory period.[194] A “vague, undefined policy of discrimination” is insufficient to satisfy this continuing violations doctrine to toll the statute of limitations.[195]
The Fair Housing Act
Overview
The Fair Housing Act (“FHA”) prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a [disability].”[196] Discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”[197]
Many circuits use the ADA’s discrimination framework (see ADA section above) when analyzing what constitutes a “disability” in an FHA discrimination claim.[198] As discussed above in the ADA/Rehabilitation Act and the Science of MOUD sections, OUD is a disability. Therefore, the FHA bars categorical access bans on people taking prescribed MOUD.
Elements of a Fair Housing Act Claim
To establish an FHA discrimination claim, a plaintiff can rely on one of three theories:
(1) Disparate treatment;
(2) Disparate impact;
(3) Failure to make reasonable accommodations for handicapped housing.[199]
Disparate Treatment Claims
There are two forms of disparate treatment cases.[200] One involves the refusal by either a private entity or the government to rent or sell housing to someone because of a protected characteristic.[201] The plaintiff must prove that discriminatory intent motivated the defendant's actions, either via the burden-shifting framework of McDonnell Douglas (which is used when direct evidence of discrimination is lacking),[202] or with direct and/or circumstantial evidence of discriminatory intent via the “multi-factor inquiry articulated by the Supreme Court in Arlington Heights . . . .”[203]
The second disparate treatment claim alleges that a policy or statute is facially discriminatory—i.e., that it applies “less favorably to a protected group.”[204] With such a claim, the plaintiff does not need to prove discriminatory intent, and “benign purpose behind the policy does not cure facial discrimination.”[205] The defendant can defend the policy by showing that the restriction benefits the protected class, or that it “responds to a legitimate safety concern raised by the individuals affected” and not on stereotypes.[206]
Disparate Impact Claims
Congress designed the FHA to prohibit explicit discrimination in housing decisions and policy design, and to “uncover unconscious or consciously hidden biases” and eliminate barriers to “housing and integration that can occur through unthinking, even if not malignant, policies.”[207] Disparate impact claims target the latter form of discrimination.
The exact wording of the elements differs by circuit, but generally a plaintiff seeking to establish a prima facie case of disparate impact must demonstrate:
(1) The occurrence of a seemingly neutral practice; and
(2) A significantly adverse or disproportionate impact on their particular characteristic group from that seemingly neutral practice.[208]
Intent is not at play in such a claim. Instead, the plaintiff has to prove a discriminatory impact with statistical evidence to prevail on such a claim[209] since an inference of discriminatory impact is insufficient.[210] Once such evidence is furnished, the defendant can supply a legally sufficient, nondiscriminatory reason for the policy to avoid liability.[211]
Failure of Reasonable Accommodation Claim
Failure of reasonable accommodation claims require the plaintiff to show that:
(1) the defendant knew or should reasonably have known of the plaintiff’s disability;
(2) the accommodation was necessary to afford the plaintiff an equal opportunity to use and enjoy the dwelling; and
(3) the defendant refused to make an accommodation.[212]
Litigation under the FHA against halfway houses and sober living facilities that refuse to administer MOUD—or reject from their program individuals who or are taking or seeking MOUD treatment[213]—often alleges failure of reasonable accommodation. Such group homes, which provide shelter to those recovering from OUD, constitute “dwellings” under the FHA when (1) the facility’s intent or design is to house occupants who remain for a significant period of time, and (2) the occupants would view the facility as a place to return to during that period of time.[214]
Common Challenges to Fair Housing Act Litigation
Religious Exemption Under the FHA
Like Title III of the ADA, the FHA contains a religious exemption. The FHA’s religious exemption is, however, narrower.[215] By its plain language, the FHA’s religious exemption is designed to allow religious organizations to give preferential treatment in the provision of housing to members of their religion. It does not authorize any other type of discrimination in the provision of housing.
It is common, particularly for a religiously-affiliated drug treatment facility, for a defendant to claim an FHA religious exemption when an FHA claim is brought for MOUD access. However, simply requiring individuals at a treatment facility to attend religious services “does not fall within the meaning of giving preference to ‘persons of the same religion.’”[216]
Statute of Limitations
The statute of limitations is two years for an FHA claim.[217]
State Tort Claims: Medical Malpractice; Lack of Informed Consent; Common Law Negligence; and Breach of Contract
Medical malpractice, informed consent, breach of contract, and common law negligence claims are potential avenues for holding health care providers—including halfway houses, sober living facilities, hospitals, and pharmacies—accountable for denying MOUD access.
It is somewhat difficult to state general elements and law that apply throughout the country—or even a particular state—for state law tort claims. This difficulty is rooted in the fact that each state has its own set of laws, and also that regulations not only vary by state but also by the kind of facility or institution that would be a defendant in a MOUD access case. That said, liability can be—and has been—established for each of the above-listed claims.
MOUD access claims brought against halfway houses roughly mirror a typical prisoners’ rights case—please see the section titled “The Eighth and Fourteenth Amendment” infra for an explanation of how such claims would proceed. Halfway house litigation is similar to prisoners’ rights cases because these institutions typically house individuals after they a court orders they participate in the program.[218]
In contrast, claims for MOUD access against private health care providers hinge on whether the facility employs professional mental health or medical staff, what state regulations govern the licensing of these facilities, and what the facilities’ contracts with patient, resident, or customer provide for. If professional mental health or medical staff work at a facility, claims would be in the realm of medical malpractice or informed consent. If the health care provider lacks professional medical or mental health staff, then breach of contract claims would be the most likely avenue to successful litigation.
Physician-Patient Relationship
A necessary condition for a plaintiff to pursue a medical malpractice case against a healthcare provider is the formation of a physician-patient relationship. Absent the formation of a relationship, there is no duty for a physician to help anyone—even if the potential patient is willing to pay, and even if there is an emergency.[219] However, physicians are not allowed to choose their patients based on protected categories (race, sex, and disability) if the patient’s condition is otherwise within the physician’s ability to treat. If no physician-patient relationship is established, then there can be no medical malpractice or informed consent tort because no duty is owed by the physician to the patient.[220]
A physician-patient relationship is rooted in and mirrors contract law, although there are important differences. A physician-patient relationship doesn’t require the formalities of a contract (i.e., offer, acceptance, consideration)—it only requires an affirmative action to treat the patient by the physician. Some courts say that even an informal consultation from the treating physicians to the consulting physician creates a physician-patient relationship for the consulting physician.[221] Other courts refuse to extend the physician-patient relationship so broadly, saying that imposing a physician-patient relationship in such circumstances would deter informal conferences because of the fear of liability.[222]
If care is taking place in a hospital, then the hospital by-laws can create a physician-patient relationship earlier than normal contract law rules would allow. If a consultation is required prior to admission under the by-laws, then that consultation (even if done without a direct meeting between the physician and the patient) would create a physician-patient relationship.[223] Similar physician-patient relationship rules emerge in network agreements between physicians and insurers. Many physicians are part of managed care networks and therefore have contractual relationships with a plan that requires them to treat subscribers—and this contractual relationship with the insurance provider forms a physician-patient relationship with the subscriber.[224]
Once a physician-patient relationship is formed, the duty to attend to the patient continues unless and until the relationship is ended by: the mutual consent of the parties; the physician’s withdrawal after reasonable notice; the dismissal of the physician by the patient; or the cessation of the medical condition that created the relationship in the first place.[225] Liability for early termination of a physician-patient relationship often hinges on a fact-intensive inquiry into what medical condition created the relationship, and what whether treatment for the condition had commenced.[226] In most (if not all) states, a physician may withdraw unilaterally from the care of a patient if the patient is afforded “a reasonable opportunity to acquire the services he needs from another physician.”[227]
One limitation on the physician-patient relationship is that the provider does not have to offer services that are needed outside their competence or training, or that are outside the scope of the original physician-patient agreement.[228] This limitation is important in the context of a MOUD access claim, since many providers face regulatory hurdles (such as a lack of training) or logistical hurdles (such as a lack of adequate facilities to administer MOUD) that might hinder a medical malpractice claim.
Medical Malpractice
Elements
Medical malpractice claims follow a three-prong formula:
(1) The medical or mental health provider owed a duty of care to the patient;
(2) The provider breached that duty by failing to inform the patient of, or prescribe, MOUD treatment for the patient’s OUD; and
(3) The patient was injured as a result.[229]
For the first and second prong, the duty is “to exercise the degree of care that physicians in that particular field would exercise in similar circumstances. If the physician’s treatment of a patient falls below the relevant standard of care, liability may be imposed if it is reasonably foreseeable” that the injury will flow from not meeting the level of care other physicians in the field would provide.[230] In the MOUD access context, a medical malpractice claim could state that the degree of care in addiction medicine is to provide MOUD (see the section “MOUD is the Standard of Care for Treating Opioid Use Disorder,” above), and that therefore a provider refusing to administer MOUD is committing medical malpractice.
Medical malpractice claims are not limited to addiction medicine providers. Liability could be extended to other fields that often service those with OUD—psychiatrists and other mental health providers are equally liable to physicians under this standard.[231] Plaintiffs have filed and won medical malpractice cases against mental health providers for failing to prescribe antidepressants to treat depression. For instance, the Minnesota Supreme Court ruled that a psychiatrist was liable for failing to provide appropriate antidepressants—the standard of care—when the patient eventually died by suicide.[232] The court noted that “although it is true that providing mental healthcare is a difficult and uncertain task, it is also true for all form of healthcare.”[233] Similarly, in Virginia the state court of appeals upheld a $2 million verdict for a decedent’s estate for medical malpractice, after a mental health provider failed to properly treat a patient with antidepressant medications.[234] A third useful case can be found in New York, where a court found a prima facie case of malpractice against providers of psychiatric services. The defendants had deviated from the standard of care numerous times, including failure to diagnose major depression, formulate proper treatment plans, order physical exams, and assign a primary therapist to prescribe appropriate medication.[235] The New York appellate court noted that the “line between medical judgment and deviation from good medical practice is not easy to draw, particularly in cases involving psychiatric treatment.”[236] While liability should not be assigned for honest errors in judgment, it “can and should ensure if that [medical] judgment was not based upon intelligent reasoning or upon adequate examination so that there has been a failure to exercise any professional judgment.”[237]
Statute of Limitations
Like other tort claims, a statute of limitations period applies to medical malpractice claims. However, tolling provisions can extend the period in which a plaintiff can bring a malpractice claim. In particular, the continuous treatment doctrine applies to many malpractice claims. This doctrine states that the statute of limitations period does not begin to run until after the patient’s last treatment “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.”[238]
Liability: Who or What to Sue
The liability of a physician, hospital, and support staff varies in a medical malpractice context, depending on the employment setup of the institution. Traditionally, hospitals were not liable for the malpractice of a physician with admitting privileges, since the physician was typically an independent contractor rather than an employee of the hospital. This legal relationship has shifted, with courts recognizing the increasing prevalence of direct employment of physicians.[239] Now, most states look to “the extent of control which, by the agreement, the [hospital] may exercise over the details of the work.”[240] If there is an absence of evidence regarding the level of control the hospital has over the physician, courts turn to traditional agency tests that evaluate whether the hospital (or other health care provider) is vicariously liable for the negligence of the independent contractor.[241] Most courts have held that a patient may justifiably rely on the physician to act as an agent of the hospital—and thereby create liability for the hospital—unless the hospital explicitly disclaims an agency relationship, particularly in the context of emergency medical care.[242]
Hospitals can also be directly liable for failing to ensure that the hospital adequately provides personnel and medical care systems.[243] Direct institutional liability is also sometimes referred to as “corporate liability” and most (if not all) states apply it to hospitals now—hospitals are therefore liable if they fail to “uphold the proper standard of care owed to a patient.”[244] Corporate liability is not limited to hospitals. For example, corporate liability has been extended to nursing homes[245] and health insurance plans.[246]
Lack of Informed Consent
Elements
Lack of informed consent claims mirror the elements of boilerplate negligence:
(1) A health provider had a duty to inform the patient about the availability of MOUD treatment for OUD because a provider-patient relationship existed and:
a. A reasonably prudent patient would find such information material to his or her treatment decision (“reasonable patient standard”—half of states) OR
b. A reasonable physician in the same circumstances would disclose such information (“reasonable practitioner standard”—half of states);
(2) The provider failed to inform the patient of the availability of MOUD treatment for OUD;
(3) Had the patient known about MOUD treatment, the patient would have pursued it; and
(4) There is a causal link between the injury and the breach of the duty.
Reasonable care in the informed consent context includes ensuring that the patient has all of the information necessary to make an informed decision regarding their care. The goal is to ensure that the provider discloses to the patient the “risks, benefits, and alternatives to a proposed intervention.”[247]
Lack of informed consent claims are different from malpractice claims because the treatment in an informed consent context need not be a departure from the standard of care.[248] For this reason, lack of informed consent claims are usually pleaded separately from a medical malpractice claim, and are often a fallback option in medical malpractice cases because lack of informed consent is easier to prove. All jurisdictions in the United States have adopted some form of informed consent requirement, either by statutory enactment or judicial decision.[249]
The Two Standards of Informed Consent: Reasonable Patient vs. Reasonable Physician
Not every failure to disclose information in a medical context is material, and states differ in their views on what disclosure failures amount to a tortious omission. About half of U.S. jurisdictions use a “reasonable patient standard,” which requires providers to disclose all information that a “reasonably prudent patient” would deem material to a treatment decision. Such information includes the risks of treatment, the available alternatives, and the risks and benefits of foregoing any treatment.[250] This is a more lenient and patient-forward standard for litigation.
The other half of states use the “reasonable physician” standard (also termed “reasonable practitioner standard,” “community standard,” and “professional standard”). This standard requires disclosure of information a “reasonable physician” would consider important in a patient’s decision. For instance, in Illinois a court cited that disclosure was necessary when the risks amounted to what “a reasonable medical practitioner would have disclosed in similar circumstances.”[251] Similarly, in Wyoming a “physician is required to disclose only such risks that a reasonable practitioner of like training would have disclosed in the same or similar circumstances.”[252]
Under both standards, the provider has a duty to inform patients of alternative treatment options.[253] This is important in a MOUD access claim at a health care provider that only treats OUD via detox, and where the patient might not have been informed about the science-based, actual standard-of-care treatment option. That said, most informed consent litigation in the psychological setting is in relation to the patient’s competency to consent to a treatment. A provider’s failure to recommend a certain medication (e.g., MOUD) is generally raised as a medical malpractice claim. As mentioned above, lack of informed consent is a strong backup claim to plead in a MOUD access case.
Informed Consent in the Halfway House Context (Fourteenth Amendment Violation)
Every federal circuit that has issued a ruling on the issue has held that prisoners have a Fourteenth Amendment right to informed consent.[254] Courts perform a two-step inquiry to determine if the right to informed consent has been violated. As the Seventh Circuit explained, the prisoner must first establish that “(1) he was deprived of information that a reasonable patient would deem necessary to make an informed decision about his medical treatment, (2) the defendant acted with deliberate indifference[255] to the prisoner’s right to refuse treatment, and (3) if the prisoner had received the information, he would have refused the treatment.”[256] If this first step is established, courts move to a second step: balancing the right to informed consent against countervailing penological interests, such as quelling disruptive behavior or preventing the spread of disease.[257] This is a more difficult standard to win under than most state law informed consent claims.
Common Law Negligence Elements
If suing an entity that does not employ professional medical or mental health providers, the next avenue for MOUD access relief is a common law negligence claim. The elements are:
(1) The existence of a duty from the defendant to the plaintiff;
(2) The defendant breached that duty by failing to inform the plaintiff about, or denying the plaintiff access to, MOUD treatment for a known OUD;
(3) Harm to the plaintiff; and
(4) The breach of the duty being the proximate and cause in fact of the plaintiff’s harm.[258]
Courts have allowed plaintiffs to show that sober living homes and halfway houses owe such duties to their residents. For instance, the D.C. Circuit denied a motion to dismiss a negligence claim against a halfway house, stating that it had “serious doubt” that there was no duty owed by a Bureau of Prisons-contracted halfway house to a resident who was shot and killed at its facility.[259] Similarly, the Federal District Court for the Eastern District of Pennsylvania ruled against a halfway house’s motion to dismiss, finding that the facility was “required to provide a standard of care including an unimpeded access to healthcare.”[260] In that case, there was sufficient evidence that the “defendant breached that duty when it failed to screen [the plaintiff] for his medical needs” and that the “defendant acted negligently in not providing plaintiff with his medication or medical care.”[261]
The nature of the relationship between the resident and facility is important in determining the existence of a duty.[262] For instance, a halfway house was found to owe a duty to an expelled resident because of the halfway house’s own description of its services in the manual given to residents.[263] The same court also ruled that the defendant’s direct control over the plaintiff—in this instance, custody in a halfway house—created a duty of care that met the threshold of the District of Columbia’s negligence statute.[264]
Breach of Contract
For private health care providers, another avenue for litigating MOUD access claims is a breach of contract claim. Such claims are largely only available for a private facility since halfway houses generally contract with the government (rather than the individual seeking MOUD access). However, some state consumer protection statutes—like Massachusetts’s Consumer Protection Statute “93A”[265]—allow intended beneficiaries to undertake litigation.
One example of a breach of contract case against a sober living facility occurred in New Mexico. There, a plaintiff was allowed to proceed on a breach of contract theory after the plaintiff paid $40,000 to enroll in a 90-day inpatient drug addiction treatment program that subsequently shuttered, causing the patient to relapse.[266]
The Eighth and Fourteenth Amendments
Increasing MOUD access in prisons and jails has been the focus of urgent public health attention in recent years. Opioids have a particularly devastating effect on those in prisons and jails, where over 25% of the population suffers from OUD and the vast majority do not receive MOUD and leave custody at a dramatically elevated risk[267] of dying from an overdose.[268] Unfortunately, many prison and jail systems still either limit MOUD access, or mandate that only one particular form of MOUD be available. Claims under the Eighth Amendment and Fourteenth Amendment can increase MOUD access.
Elements
Under the Eighth Amendment, the government has an “obligation to provide medical care for those whom it is punishing with incarceration.”[269] This is because a person in prison or jail “must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.”[270] This standard applies not only to instances where lack of treatment poses serious risk, but also to less serious cases where “denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.”[271] The Eighth Amendment’s cruel and unusual punishment provision is therefore violated when a prison official shows a “deliberate indifference” to a prisoner’s “serious medical needs.” [272] Courts apply a similar analysis as to whether inadequate medical care in jails violates the Due Process Clause of the Fourteenth Amendment for people in pretrial detention and jail.[273]
Serious Medical Need
Courts first ascertain whether there is a “serious medical need,” which is generally understood as a need that was “diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”[274] If there is a serious medical need, the court determines whether the jail or prison’s response to that need reflects “deliberate indifference” – meaning that the official knew of an “an excessive risk to inmate health or safety” and disregarded that risk.[275]
Deliberate Indifference
The prison official does not need to know of a specific risk from a specific source for there to be deliberate indifference. A prison official’s knowledge of a substantial risk to a person’s health can be proven by circumstantial evidence.[276] It may be inferred from the risk being obvious or by deterioration in the person’s health. A correctional official also cannot escape liability by refusing to verify underlying facts that they strongly suspect to be true or by declining to confirm inferences of risk they strongly suspect to exist.
Deliberate indifference can also be proven by direct evidence such as medical call requests, complaints, doctor visits, grievances, and treatment requests. This is why it is important to document all the times a patient complained about opioid cravings or withdrawal symptoms, and asked for MOUD while in a correctional facility, as well as to review their entire medical record and grievance reports.
While both the Eighth and Fourteenth Amendments require that constitutionally adequate medical care be given to incarcerated and detained people, they differ in their standards of proof. Eight Amendment claims require “deliberate indifference,” while the Fourteenth Amendment claims require an “objectively obvious risk.”
Prison Litigation Reform Act Considerations
A crucial question for any carceral MOUD-related litigation is whether the Prison Litigation Reform Act (“PLRA”) applies. If your MOUD lawsuit is on behalf of a person currently incarcerated, you must follow the requirements imposed by this statute. This includes the exhaustion of administrative remedies prior to filing suit (such as a jail or prison’s grievance system and deadlines). A plaintiff’s failure to do so could lead to their lawsuit being dismissed, since the PLRA precludes any lawsuit brought by a prisoner who has not yet fulfilled “such administrative remedies as are available[.]”[277] There are also important limitations in the PLRA on the types of actionable injuries, and on attorneys’ fees.
The PLRA was passed to reduce the number of lawsuits filed by and on behalf of incarcerated individuals.[278] The PLRA is primarily codified at 28 U.S.C. § 877e and 18 U.S.C. § 362, and has achieved its purpose of making it more difficult for prisoners to maintain successful suits. The following overview of the PLRA addresses key issues that can derail meritorious MOUD lawsuits, such as not filing required grievances or missing grievance deadlines.
Section 1997e Only Covers Prisoners
Importantly, the PLRA does not apply to litigation filed by people no longer incarcerated. Section 1997e of the PLRA only applies to lawsuits “brought by a prisoner confined in any jail, prison or other correctional facility[.]”[279] The statute defines “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”[280] Accordingly, the PLRA covers most people incarcerated within a prison, jail, or juvenile detention facility as “prisoners,” even if they are not yet convicted of any crime. This includes individuals detained in a privately operated detention facility,[281] and people living in halfway houses or similar restrictive housing arrangements so long as their presence in these homes is connected with their criminal proceedings. [282] By contrast, courts have held that the PLRA does not apply to people who are not confined but serving a sentence of probation or parole,[283] individuals who are civilly committed,[284] and people detained for immigration purposes only.[285]
Notably, section 1997e does not apply to lawsuits filed by formerly incarcerated individuals, even if the litigation concerns conditions that the person suffered during their incarceration. To determine whether a person is a “prisoner” for PLRA purposes, courts typically look at the status of the plaintiff at the time their lawsuit was filed. But two circuits—the Third Circuit and the Ninth Circuit—have held that the relevant timeframe is the date that the operative complaint was filed.[286] This distinction matters for a plaintiff whose MOUD-related lawsuit was filed while they were incarcerated but who was later released during the pendency of the case and before any final amended complaint was filed.
Even in those jurisdictions that employ the lawsuit-filed rule (all circuits but the Third and Ninth), courts have recognized that a person who is released during the pendency of their case may avoid the PLRA by asking to dismiss the matter without prejudice and immediately filing a new action.[287] Before dismissing any MOUD lawsuit, however, please check all applicable statutes of limitations. This includes any savings statutes that allow a plaintiff to refile claims that were timely pled in a prior lawsuit, even if the underlying statute of limitations has expired (so long as the dismissal of the prior case was not on the merits).[288]
The PLRA Exhaustion Requirement
Section 1997e(a) bars any lawsuit brought by a prisoner who has not yet exhausted “such administrative remedies as are available[.]”[289] “Administrative remedies”, as the phrase is used here, typically refers to a detention facility’s grievance system.[290] The Supreme Court has held that if a detention facility’s grievance process is available, the prisoner must complete the process in compliance with the rules in place that govern (including deadlines).[291] If a prisoner fails to follow the rules governing the grievance process (including deadlines), they procedurally default, thereby barring any such federal claims in federal court forever.[292] Importantly, most courts have held that any applicable statute of limitations is tolled during the time the prisoner exhausts their administrative remedies.[293]
Proper exhaustion of available grievances processes before bringing a carceral MOUD-related lawsuit is thus critical. Plaintiffs need not (and should not) plead the fact that they successfully exhausted the applicable administrative remedies in their complaint. This is because the failure to exhaust defense under section 1997e(a) is an affirmative defense that the defendants must plead and prove.[294] Courts frequently permit defendants to stay discovery on the merits when this affirmative defense is asserted until the merits of this defense are adjudicated.[295] So if possible, counsel should understand before filing suit in any MOUD-related litigation whether proper exhaustion has already occurred, or whether there is still time to exhaust under the applicable grievance system deadlines.
Some prison systems make their grievance policies publicly available.[296] The Civil Rights Litigation Clearinghouse has made several prison and jail systems’ grievance policies public.[297] Grievance policies are also generally subject to FOIA requests.
In the case of a class action, prisoner-plaintiffs can satisfy the PLRA’s administrative exhaustion requirement through “vicarious exhaustion,” whereby “one or more class members ha[s] exhausted his administrative remedies with respect to each claim raised by the class.”[298] Courts have also concluded that the PLRA’s exhaustion requirement is not applicable to the claims of non-prisoners brought alongside those of prisoners.[299]
There are also instances where failure to exhaust administrative remedies under the PLRA is not fatal to the claim. The Supreme Court ruled in Ross v. Blake that administrative exhaustion is excused in three circumstances: “First, an administrative procedure is unavailable when it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. [Second], an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use—i.e., some mechanism exists to provide relief, but no ordinary prisoner can navigate it. [Third], a grievance process is rendered unavailable when prison administrators thwart inmates from taking advantage of it through machination, misrepresentation, or intimidation.”[300] Litigators have successfully argued that the time-sensitive nature of harm faced by a prison can result in there being no “available” remedies to exhaust. For instance, during the COVID-19 pandemic the Connecticut District Court ruled that the 105 business day period to complete the administrative exhaustion requirements of the PLRA rendered the prison grievance system unavailable for processing concerns regarding the pandemic.[301] Similar arguments can be employed by MOUD access litigators, who represent clients facing imminent harm from withdrawal.
Finally, the Supreme Court held in Jones v. Bock that the PLRA’s exhaustion requirement does not create a total exhaustion rule.[302] If a prisoner fails to exhaust one claim, that does not bar the prisoner from bringing another, exhausted claim.
Organizational and Associational Standing to Avoid PLRA Exhaustion Problems
Carceral MOUD-related litigation can also avoid PLRA exhaustion hurdles by bringing claims on behalf of organizations or associations.
Organizations have direct standing when they suffer a “concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources.”[303] While the exact wording for satisfying Article III’s injury in fact requirement differ by circuit, organizations can show injury in fact by demonstrating frustration of the organizational mission and diversion of resources to combat the injury in question.[304] The injury cannot be manufactured—the organization must show that it would have suffered injury if it had not diverted resources to address the problem.[305]
Thus, one avenue to avoid PLRA exhaustion issues is associational standing. The Supreme Court has “found that, under certain circumstances, injury to an organization’s members will satisfy Article III and allow that organization to litigate in federal court on their behalf.”[306] To bring suit on behalf of association members, the association must show “(a) it’s members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”[307]
The PLRA’s exhaustion requirement does not apply to organizations bringing claims under organizational standing or associational standing. As the Middle District of Alabama put it, the PLRA “provisions respecting prisoner suits do not apply because [plaintiff advocacy organization] is clearly not a ‘prisoner’ under the statute[, nor is it] a ‘person’ and has neither been incarcerated nor detained.”[308]
An association has standing “to sue in its own name on behalf of its members if (1) its members would otherwise have standing to sue, (2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members.”[309]
The first prong of associational standing is met when the association shows that one of its members has suffered a concrete and particularized injury.[310] The second prong is straightforward, in the sense that the association must have an interest that is germane to pursuing MOUD access litigation. The third prong asks whether the claim or relief requires the participation of a member. The Federal District Court for the Southern District of New York held that “an individual is required to participate when the claim asserted requires individualized proof, such as claims for damages.”[311] When the association seeks purely a legal ruling—such as declaratory judgement or injunctive relief—the claim no longer requires individualized proof and the third prong is satisfied without associational member involvement.[312]
Another option to avoid PLRA exhaustion issues is to bring a claim via a prisoner’s estate or guardian. Estates and guardians are not “prisoners” and therefore are not subject to the exhaustion requirement of the PLRA.[313]
Section 3626 and MOUD Claims Seeking Injunctive Relief
If your lawsuit is seeking injunctive relief, it is important to pay attention to Section 3626 of the PLRA, which deals with claims for and orders granting injunctive relief. The section applies to any “civil action with respect to prison conditions[.]”[314] The statute expressly defines:
[T]he term “civil actions with respect to prison conditions” means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison[.][315]
Courts have taken an expansive view of what fits within the definition of section 3626(g)(2).[316] Accordingly, it is likely that lawsuits seeking injunctive relief for MOUD access in a detention facility will be considered within the purview of section 3626,[317] even if the plaintiff is not incarcerated at the time the lawsuit is filed.[318]
The Physical Injury Bar
Section 1997e(e) purports to prohibit a federal action from being brought by a prisoner “for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in 18 U.S.C. § 2246).”[319] Although by its terms the statute appears to require a showing of physical injury before the suit is brought, most appellate courts have held that the absence of physical injury serves as a bar to obtaining compensatory damages, rather than a complete bar to suit.[320] Instead, where physical injury is absent, a prisoner may still obtain nominal and punitive damages based on a showing of mental and emotional injuries alone.
Appellate courts are divided as to whether the physical injury bar applies at all to certain types of section 1983 claims, including First Amendment claims, where the injury at issue might be described as a “constitutional injury” and not a “mental or emotional” one. Cases involving denial of MOUD are not likely to raise this issue, as the claimed damages are likely to fall within the categories of mental, emotional, and/or physical injury.
Limitation on Attorney’s Fees
For petitions brought under section 1988, the PLRA limits the total recovery of attorney’s fees to 150 percent of the judgment and requires that 25 percent of the judgment itself must be used to satisfy the fee award. Section 1997e(d) also limits the hourly rate that counsel can use to petition the court for attorney’s fees to 150 percent of the hourly rate established under the Criminal Justice Act (CJA). The 2023 CJA rate is $164/hour, and so the maximum PLRA rate that counsel can seek as part of a section 1988 fee petition is currently $246/hour.
While the PLRA is broad in its reach on certain issues—for instance, the exhaustion provision[321] applies to claims brought under 42 U.S.C. § 1983 or any other federal law. Importantly, the PLRA’s attorney’s fees provision[322] only applies to a fee petition brought under 42 U.S.C. § 1988 (the fee-shifting provision for a Section 1983 claim), and not to a fee petition brought as a prevailing party in a carceral MOUD-related lawsuit under the ADA or Rehabilitation Act.[323]
US Government and Private Enforcement Actions and Settlements
This section presents DOJ, HHS, and EEOC enforcement actions, as well as private cases brought under the ADA, Rehabilitation Act, and Eighth and Fourteenth Amendments. Many of these cases were gathered by Legal Action Center which, in addition to creating an excellent database of MOUD caselaw, provides many valuable short guides on MOUD litigation and rights.[324]
Since most cases contain several statutory claims, we have created a table that shows which claims are present in which cases. Because carceral MOUD access claims differ significantly from non-carceral access claims, the list is divided into a carceral section and a non-carceral section. The subsections are then organized alphabetically.
Below the table we provide summaries of each case. When possible and useful, we have added links to filings in cases that provide good examples of briefs that MOUD access litigators will frequently encounter. These include memoranda in opposition to motions to dismiss, summary judgment motions, temporary restraining order and injunction motions, attorneys fee and costs motions, and accompanying declarations and affidavits from experts and witnesses. We also include a handful of miscellaneous motions that will come up less frequently in litigation, ranging from discovery disputes to informing the court when a plaintiff has passed away.
Case
ADA
Rehab Act
FHA
8th Am.
14th Am.
Other
CARCERAL CASES
Allegheny County, Pennsylvania DOJ Litigation
X
X
Big Sandy Regional Jail Authority DOJ Litigation
X
X
Crews v. Sawyer (D. Kan. 2019)
X
X
APA
Cumberland County, New Jersey DOJ Litigation
X
X
DiPierro v. Hurwitz (D. Mass. 2019)
X
X
APA
Finnigan v. Mendrick (N.D. Ill. 2021)
X
X
Godsey v. Sawyer (W.D. Wash. 2019)
X
X
Kortlever v. Whatcom County (W.D. Wash. 2020)
X
Lexington-Fayette Urban County Government’s Department of Community Corrections DOJ Litigation
X
M.C. v. Jefferson County (N.D.N.Y. 2022)
X
X
Massachusetts Parole Board DOJ Litigation
X
Massachusetts Statewide Correctional Facilities DOJ Litigation
X
Pesce v. Coppinger (D. Mass. 2018)
X
X
Sclafani v. Mici (D. Mass. 2019)
X
X
Smith v. Aroostook County (D. Me. 2019)
X
Smith v. Fitzpatrick (D. Me. 2018)
X
X
Strickland v. Delaware County DOJ Litigation Intervention
X
Taylor v. Wexford Health Sources (S.D.W. Va. 2024)
X
X
United States v. The Unified Judicial System of Pennsylvania (E.D.P.A. 2022)
X
NONCARCERAL CASES
ADA
Rehab Act
FHA
8th Am.
14th Am.
Other
Ashland Hospital Corporation DOJ Litigation
X
Breaux v. Bollinger Shipyards, LLC (E.D. La. 2018)
X
Family Medical Leave Act, privacy action
Cumberland County, Tennessee DOJ Litigation
X
EEOC v. Appalachian Wood Products, Inc (W.D. Pa. 2017)
X
Title I of Civil Rights Act of 1991
EEOC v. Foothills Child Development Center, Inc. (D.S.C. 2018)
X
EEOC v. Modern Group, Ltd. (E.D. Tex. 2024)
X
EEOC v. Professional Transportation, Inc. (S.D. W. Va. 2020)
X
EEOC v. Randstad (D. Md. 2015)
X
Title I of Civil Rights Act of 1991
EEOC v. SoftPro (E.D.N.C. 2018)
X
EEOC v. Hussey Cooper Ltd. (W.D. Pa. 2010)
X
Title I of Civil Rights Act of 1991
Indiana State Board of Nursing DOJ Litigation
X
Massachusetts General Hospital DOJ Litigation
X
Massachusetts Skilled Nursing Home DOJ Litigation Series
X
X
Section 1557 of the Affordable Care Act
Massachusetts Trial Court DOJ Litigation
X
New England Orthopedic Surgeons DOJ Litigation
X
P.G. v. Jefferson County (N.D.N.Y. 2021)
X
X
Pennsylvania Department of Human Services HHS Litigation
X
X
Pollard v. Drummond Company, Inc. (N.D. Ala. 2015)
X
Ready to Work DOJ Litigation
X
Selma Medical Associates, Inc. DOJ Litigation
X
Strickland v. Delaware County (E.D. Pa. 2022)
X
X
X
Tassinari v. Salvation Army National Corporation (D. Mass. 2021)
X
X
X
United States v. Bacchus (E. D. Pa. 2021)
X
United States v. City of Fort Worth (N.D. Tex. 2022)
X
X
United States v. City of Jackson (S.D. Miss. 2016)
X
X
United States v. Village of Hinsdale (N.D. Ill. 2020)
X
X
West Virginia Department of Health and Human Resources Bureau for Children and Families HHS Litigation
X
X
Carceral Case List and Citations
Allegheny County, Pennsylvania DOJ Litigation: On November 30, 2023, the DOJ announced a settlement with Allegheny County, Pennsylvania, whereby the Allegheny County Jail will offer all three version of MOUD to anyone who enters custody and for whom such treatment is medically appropriate, even if they were not being treated with MOUD previously.[325] Allegheny County also agreed that the County Jail will ensure that people who were receiving MOUD before their detention are continued on that medication, and not change or discontinue someone’s use of a particular MOUD version unless doing so is based on an individualized determination by a qualified medical provider. Allegheny County also agreed to pay damages to an individual allegedly denied access to methadone.
Big Sandy Regional Jail Authority DOJ Litigation: On December 4, 2023, the DOJ reached a settlement with the Big Sandy Regional Jail Authority, which operates the Big Sandy Regional Detention Center (BSRDC) in Kentucky, to provide access to all three versions of MOUD to people with opioid use disorder and ensure that decisions about treatment are based on an individualized determination by qualified medical personnel.[326] BSRDC also agreed to medically evaluate all individuals for opioid use disorder at the start of their detention and to ensure that people who were receiving MOUD from a licensed treatment provider before entering custody are continued on that medication. BSRDC also agreed to offer all individuals with opioid use disorder who enter custody the option to receive any FDA-approved medically appropriate MOUD, even if they were not being treated with that medication before incarceration. Lastly, BSRDC agreed not to change or discontinue an individual’s use of a particular version of MOUD unless doing so is based on an individualized determination by a qualified medical provider and also not to use incentives, rewards, or punishments to encourage or discourage any particular form of MOUD.
Crews v. Sawyer (D. Kan. 2019): the plaintiff brought an Eighth Amendment deliberate indifference claim; Rehabilitation Act claim for unlawful discrimination against a qualified individual; and Administrative Procedures Act § 706(2)(A) arbitrary and capricious claim against the BOP for the agency’s failure to provide MOUD treatment to any prisoners with MOUD.[327] The plaintiff and the BOP entered into an individual settlement that provided that the plaintiff (but not the wider prison) receive ongoing MOUD treatment.[328]
• Emergency Motion for Temporary Restraining Order
• Declaration #1 in Support of TRO
• Declaration #2 in Support of TRO
• Declaration #3 in Support of TRO
• Petition for Writ of Habeas Corpus ad Testificandum
• Opposition to Motion for Summary Judgment
Cumberland County, New Jersey DOJ Litigation: On May 17, 2023, Cumberland County, New Jersey, in a settlement[329] with the DOJ, agreed to screen people in custody for OUD and provide MOUD to people who would benefit or who are at a risk of opiate withdrawal so as to comply with the Eighth and Fourteenth Amendments.[330] According to the terms of the settlement: (1) MOUD “is the standard of care to safely and effectively treat these disorders by reducing patients’ opioid use, decreasing opioid related overdose deaths, and improving treatment retention”; (2) “By failing to provide adequate medical care necessary to treat inmates’ Opioid Use Disorder, the CCJ exhibited deliberate indifference to inmates’ serious medical and mental health needs.”; and (3) “Individuals with Opioid Use Disorder often experience debilitating symptoms when undergoing opioid withdrawal—including uncontrolled pain and psychological distress—that may trigger suicidal ideation, especially during the first week of incarceration, if not properly treated.” The settlement resolved a DOJ finding[331] that the Cumberland County Jail had violated the Eighth and Fourteenth Amendments by failing to provide MOUD to people in its custody, approximately 25 percent of whom suffered from opioid use disorder.
• Joint Motion to Enter Consent Decree
• Transcript from Hearing on Consent Motion
DiPierro v. Hurwitz (D. Mass. 2019): the plaintiff alleged violations of the Rehabilitation Act, Eighth Amendment, and Administrative Procedures Act, and sought declaratory and injunctive relief to get the defendants—the Federal Bureau of Prisons and related officers—access to her physician-prescribed methadone treatment for her OUD throughout her upcoming incarceration at a federal facility.[332] The plaintiff was ultimately scheduled to be incarcerated in Danbury, Connecticut. Prior to her incarceration, the plaintiff and defendant entered into a settlement agreement stating that the BOP would dispense and administer methadone treatment throughout her scheduled incarceration, and that she would be provided with a sealed last dose upon her release from the prison.[333]
• Emergency Motion for Temporary Restraining Order
• Memorandum in Support of Emergency Temporary Restraining Order
• Declarations #1-9 in Support of Emergency Temporary Restraining Order
Finnigan v. Mendrick (N.D. Ill. 2021): a plaintiff with OUD—who was to be jailed the next day—filed a claim for injunctive relief under the ADA and Eighth Amendment. [334] At issue was the DuPage County Jail’s potential denial of the plaintiff’s MOUD. While the court dismissed the lawsuit for lack of standing (the issue was not ripe, as it was unclear whether the plaintiff’s MOUD would be denied), the court ordered the defendant to report what happened regarding the plaintiff’s imminent MOUD access claim to the court when she arrived at the jail. The defendant ultimately allowed the plaintiff to access her methadone, and instituted a policy to provide access to MOUD for those at the jail. In its analysis, the court distinguished the lawsuit from two other district court opinions that the plaintiff had cited (Smith v. Aroostook Cty., 376 F. Supp. 3d 146 (D. Me. 2019) and Pesce v. Coppinger, 355 F. Supp. 3d 35 (D. Mass 2018)), both of which granted preliminary injunctions against categorical bans on MOUD.[335] The court noted that the certainty of the MOUD bans in those cases created standing that did not exist in the context of the likely—but not categorical—ban on MOUD at the DuPage County Jail. The opinion also provides an extensive discussion of the elements of both an Eighth Amendment deliberate indifference claim, and an ADA claim.[336]
• Motion for Preliminary Injunction
• Declarations #1-6 in Support of Motion for Preliminary Injunction
• Opposition to Motion to Dismiss
• Reply in Support of Motion for Preliminary Injunction
Godsey v. Sawyer (W.D. Wash. 2019): the plaintiff, who had entered an inpatient MOUD treatment program prior to her incarceration, sued the BOP to obtain MOUD access.[337] The plaintiff alleged an Eighth Amendment deliberate indifference violation, as well as a violation of the Rehabilitation Act.[338] The parties were ultimately able to settle the matter, giving the plaintiff MOUD access.[339]
• Emergency Motion for Temporary Restraining Order
• Declaration #1 in Support of Motion for Costs and Fees
• Declaration #2 in Support of Motion for Costs and Fees
• Reply Supporting Motion for Costs and Fees
• Order Denying Motion for Costs and Fees
Kortlever v. Whatcom County (W.D. Wash. 2020):[340] a class of current and future incarcerated persons at the Whatcom County Jail in Washington State challenged the county jail’s policy prohibiting MOUD, claiming a violation of the ADA. A subsequent settlement included guidelines for training and implementation of written policies for MOUD – primarily buprenorphine maintenance and induction – as well as medically-assisted withdrawal. According to the settlement, the Whatcom County Jail agreed to allow patients with existing MOUD prescriptions to continue on their prescription as long as clinically indicated and the Jail will provide MOUD if medically appropriate regardless of whether the patient was taking MOUD prior to entering custody.
• Motion to Certify Class Action
• Reply in Support of Motion to Certify Class Action
• Declarations #1-5 in Support of Motion to Certify Class Action
• Response to Motion to Dismiss
• Stipulated Motion to Stay Proceedings
• Motion for Preliminary Approval of Settlement
• Declaration in Support of Motion for Preliminary Approval of Settlement
• Order Granting Preliminary Approval of Settlement
• Motion for Final Approval of Settlement
• Order Granting Final Approval of Settlement
• Stipulated Motion to Extend Settlement Agreement
• Order Granting Stipulated Motion to Extend Settlement Agreement
• Second Stipulated Motion to Extend Settlement Agreement
• Order Granting Second Stipulated Motion to Extend Settlement Agreement
Lexington-Fayette Urban County Government’s Department of Community Corrections DOJ Litigation: On November 1, 2022, the DOJ reached a settlement[341] with the Lexington-Fayette Urban County Government’s Department of Community Corrections in Kentucky to ensure that people prescribed MOUD can remain on their medication while in custody at the Fayette County Detention Center. The County’s Department of Corrections also agreed not to deny drug rehabilitation care to people using illegal drugs. Such care includes MOUD. The settlement resolved a DOJ finding that the Fayette County Detention Center denied people who entered custody and who were being treated with methadone or buprenorphine this medication in violation of the Americans with Disabilities Act.
M.C. v. Jefferson County (N.D.N.Y. 2022): the court preliminarily enjoined the Jefferson County Correctional Facility’s policy banning MOUD for all non-pregnant detainees. Holding that such a policy likely violated Title II of the ADA (“the refusal to provide access to methadone deprives plaintiffs ‘meaningful access’ to Jefferson Correctional’s healthcare services”)[342] and the Fourteenth Amendment (the plaintiffs established that the deprivation was sufficiently serious, and the defendant acted with deliberate indifference to a serious medical need),[343] the court cited a recently-passed New York law requiring all jails and prisons to provide MOUD to those with OUD.[344] The court also certified a two subclasses for the lawsuit: those in pretrial detention and those in postconviction detention.[345]
• Motion for Class Certification
• Memorandum and Proposed Order to Show Cause for Temporary Restraining Order
• Declarations #1-6 in Support of Motion for Temporary Restraining Order
• Order Granting Temporary Restraining Order
• Letter Requesting Entry of Individual Preliminary Injunction
• Proposed Consent Order for Individual Preliminary Injunction
• Order Granting Individual Preliminary Injunction
• Motion for Class Preliminary Injunction
• Declarations #1-8 in Support of Motion for Class Preliminary Injunction
• Reply in Support of Motion for Class Certification
• Declarations #1-3 in Support of Reply in Support of Motion for Class Certification
• Reply in Support of Motion for Class Preliminary Injunction
• Declaration in Support of Reply in Support of Motion for Class Preliminary Injunction
• Transcript of Oral Argument for Class Certification and Class Preliminary Injunction
• Order and Opinion Granting Class Certification and Class Preliminary Injunction
• Order Extending Class Preliminary Injunction
• Proposed Confidentiality and Protective Order
• Order Granting Confidentiality and Protective Order
• Letter Requesting Hearing to Compel Discovery
• Statement Informing Court of Death of Plaintiff
• Memorandum RE Timeliness of Rule 25 Notification of Plaintiff Death
• Consent Motion for Preliminary Approval of Proposed Consent Decree
• Affirmation in Support of Consent Motion for Preliminary Approval of Proposed Consent Decree
• Order Granting Preliminary Approval of Class Action Settlement
• Motion for Final Approval of Consent Decree
• Affirmation in Support of Motion for Final Approval of Consent Decree
• Declaration in Support of Motion for Final Approval of Consent Decree
• Order Granting Final Approval of Consent Decree
Massachusetts Parole Board DOJ Litigation: On December 14, 2021, the DOJ entered a settlement agreement with the Massachusetts Parole Board.[346] The board had instituted policy mandating that naltrexone—but no other MOUD—be administered to those with OUD, without consideration for whether an alternative MOUD treatment would be more appropriate.[347] After the DOJ alleged a Title II violation of the ADA, the parties entered into a settlement agreement. The agreement stated that the Parole Board would provide individual assessments to parolees, not condition parole on the consumption of a particular MOUD, and not mandate a particular form of MOUD.[348]
Massachusetts Statewide Correctional Facilities DOJ Litigation: On April 1, 2022, the DOJ announced[349] that all state and county correctional facilities in Massachusetts agreed to maintain people on the version of MOUD they were taking prior to entering custody. According to the settlement, opioid use disorder is a disability protected by the Americans with Disabilities Act which in turn requires jails and prisons to maintain such people on MOUD when they enter custody.
• Settlement Agreement with Worchester County Sheriff’s Office
P.G. v. Jefferson County (N.D.N.Y. 2021): the court granted a preliminary injunction against a jail’s policy to deny methadone to all non-pregnant detainees, finding that the policy likely violated Title II of the ADA and the Fourteenth Amendment.[350] The court held that the policy likely violated the ADA because the defendants’ “out-of-hand, unjustified denial of the Plaintiff’s request for her prescribed, necessary medication is so unreasonable as to raise an inference that the Defendants denied the Plaintiff’s request because of her disability.”[351] Similarly, for the Fourteenth Amendment claim the court noted that “opioid use is a chronic brain disease,” that “opioid withdrawal has been recognized as an ‘objectively’ serious medical condition,” and that the plaintiff had shown that the defendants “knew, or should have known, that failing to provide the omitted medical treatment would pose a substantial risk to the detainee’s health.”[352] After issuing the preliminary injunction, the parties litigated issued regarding discovery obligations, retaliation against the plaintiff for filing the lawsuit by placing him in solitary confinement, and the plaintiff’s requests for attorney’s fees and costs (which was granted).
• Motion for Preliminary Injunction
• Declarations #1-6 and Affidavit Supporting Motion for Preliminary Injunction
• Defendant’s Opposition to Motion for Preliminary Injunction
• Reply Supporting Motion for Preliminary Injunction
• Transcript of Oral Argument on Motion for Preliminary Injunction
• Order Granting Preliminary Injunction
• Letter Requesting Pre-Motion Conference on Discovery Disputes
• Transcript of Pre-Motion Conference on Discovery Disputes
• Reply Supporting Motion to Compel Discovery
• Motion for Leave to File Supplemental Complaint and Second Amended Complaint
• Supplemental Complaint and Second Amended Complaint
• Motion for Attorney’s Fees and Costs
• Defendant’s Response Opposing Motion for Attorney’s Fees and Costs
• Reply Supporting Motion for Attorney’s Fees and Costs
• Sur Reply Opposing Motion for Attorney’s Fees and Costs
• Order Granting Motion for Attorney’s Fees and Costs
Pesce v. Coppinger (D. Mass. 2018): the district court held that categorically denying an incarcerated person access to MOUD likely violates both the ADA and Eighth Amendment. The court noted “[a]bsent medical or individualized security considerations underlying the decision to deny access to medically necessary treatment, Defendants’ policy as applied to Pesce is either ‘arbitrary or capricious-as to imply that it was pretext for some discriminatory motive’ or ‘discriminatory on its face.’”[353] Earlier useful briefings in the case include a dispute about expedited briefing and scheduling to ensure MOUD access for the plaintiff. The case subsequently involved a dispute regarding the payment of attorney’s fees and costs, and also saw amici curiae file briefs regarding MOUD access.
• Motion for Temporary Restraining Order and Preliminary Injunction
• Emergency Motion for Expediated Briefing Schedule and Hearing
• Order Denying Motion for Expediated Briefing Schedule and Hearing
• Notice in Response to Order on Motion for Expedited Briefing Schedule and Hearing
• Joint Statement Regarding Briefing and Hearing Schedule
• Reply Supporting Motion for Temporary Restraining Order and Preliminary Injunction
• Transcript of Oral Argument on Motion for Temporary Restraining Order and Preliminary Injunction
• Order Granting Motion for Temporary Restraining Order and Preliminary Injunction
• Joint Motion to Stay Proceedings
• Motion for Attorney’s Fees and Costs
• Affidavit Supporting Motion for Attorney’s Fees and Costs
• Declaration Supporting Motion for Attorney’s Fees and Costs
• Reply Supporting Motion for Attorney’s Fees and Costs
• Order Awarding Attorney’s Fees and Costs
• Motion to Enforce Court Order Awarding Attorney’s Fees and Costs
• Declaration Supporting Motion to Enforce Court Order Awarding Attorney’s Fees and Costs
• Opposition to Defendant’s Motion for Entry of Judgment
Sclafani v. Mici (D. Mass. 2019): the plaintiffs alleged Eighth Amendment and ADA violations by the Massachusetts Department of Correction for its refusal to provide MOUD to prisoners diagnosed with OUD. The lawsuit was filed on behalf of three individuals incarcerated in the Massachusetts DOC system, who prior to their incarceration were prescribed daily buprenorphine dosages. Upon entering the prison, they learned that the Massachusetts DOC only provided MOUD for 90 days, after which time medication would be withdrawn until the last 90 days of their sentence. After filing a motion for preliminary injunction, the parties settled the case. The terms of the settlement included that the DOC would provide the plaintiffs with MOUD during the duration of their incarceration, at dosages prescribed by the DOC’s medical providers based on individualized assessments of medical needs.[354] The agreement also stated that MOUD treatment would not limit the plaintiffs’ access to services, programs, or activities within the DOC.[355]
• Motion for Temporary Restraining Order and Preliminary Injunction
• Order on Temporary Restraining Order and Preliminary Injunction
• Stipulation and Joint Motion to Stay Preliminary Injunction Proceedings
Smith v. Aroostook County (D. Me. 2019): the court held that denying an incarcerated person access to MOUD without assessing their medical need for this medicine likely violates the ADA.[356] The court explained that the “Defendants’ out-of-hand, unjustified denial of the Plaintiff's request for her prescribed, necessary medication—and the general practice that precipitated that denial—is so unreasonable as to raise an inference that the Defendants denied the Plaintiff's request because of her disability.”[357] The defendants appealed to the First Circuit, which upheld the court’s preliminary injunction ruling. The case is also useful for MOUD access litigators due to the extensive briefing of evidentiary issues, and the designation of deposition materials for trial that can serve as a guide for what information to obtain in depositions.
• Motion for Preliminary Injunction
• Reply Supporting Motion for Preliminary Injunction
• Motion in Limine to Exclude Witness Testimony
• Deposition Designation of Defendants’ Witnesses
• Motion to Consolidate Preliminary Injunction Hearing with Trial on the Merits
• Order on Motion to Consolidate
• Objection to Defendants’ Deposition Testimony Designations
• Deposition Designation of Plaintiff’s Addiction Physician
• Transcripts #1-5 of Hearing on Motion for Preliminary Injunction
• Post-Trial Memorandum Supporting Injunctive Relief
• Order on Motion for Preliminary Injunction
• First Circuit Ruling on Interlocutory Appeal of Preliminary Injunction
• Motion for Attorney’s Fees and Costs
Smith v. Fitzpatrick (D. Me. 2018): the plaintiff alleged that the Maine Department of Corrections and the Aroostook County Sheriff violated his ADA and the Eighth Amendment rights by refusing to allow him to continue his MOUD treatment while incarcerated.[358] After the plaintiff moved for a temporary restraining order, the parties settled the case with the court’s approval.[359] Besides being another datapoint in favor of MOUD access in carceral settings, the case also contains a useful discussion of when attorney’s fees or litigation costs can be collected in a settlement after a ADA or § 1983 settlement. The court held that the second prong of the imprimatur standard failed (see Attorney’s Fees and Costs in ADA and Rehabilitation Act Litigation, supra), and therefore denied attorney’s fees and costs.[360] The motion for attorney’s fees and costs—submitted by the ACLU of Maine and the ACLU’s National Prison Project—is a particularly useful template for MOUD access litigators.
• Motion for Expedited Temporary Restraining Order or Preliminary Injunction
• Reply Supporting Motion for Preliminary Injunction
• Motion for Attorney’s Fees and Costs
• Reply Supporting Motion for Attorney’s Fees and Costs
• Transcript of Oral Argument on Motion for Attorney’s Fees and Costs
• Order on Motion for Attorney’s Fees and Costs
Strickland v. Delaware County DOJ Litigation Intervention: On December 11, 2023, the DOJ filed a statement of interest in Strickland v. Delaware County, a lawsuit pending in the Eastern District of Pennsylvania alleging that a county correctional facility violated the ADA by denying an individual access to methadone that was medically necessary to treat his opioid use disorder. According to the complaint, the George W. Hill Correctional Facility in Delaware County had a policy of providing methadone only for pregnant women and requiring all other people who were on methadone when entering custody to undergo medically supervised withdrawal. The DOJ’s statement of interest[361] emphasized that the ADA prohibits jails and prisons from categorically restricting access to MOUD without individually assessing whether the person being denied access needs the medication to effectively treat their disability.
• Response Opposing Motion to Dismiss
• Order Denying Motion to Dismiss
• Response Opposing Summary Judgment
• Statement of Interest by Department of Justice on Motion for Summary Judgment
Taylor v. Wexford Health Sources (S.D.W. Va. 2024): the court denied the defendants’ motion to dismiss a lawsuit seeking damages for the denial of MOUD while the plaintiff was detained in a West Virginia jail. The court explained that “Opioid use disorder is a qualifying disability for purposes of the ADA and the Rehabilitation Act,” “[a]lthough he received his other prescription medications, he was forced into withdrawal rather than being provided Suboxone, a painful, debilitating process that increased his risk of relapse upon his release,” “[i]n addition to the denial of medical services for his OUD, it can be reasonably inferred that he was unable to participate in programming or access services while experiencing ‘heart palpitations, muscle spasms throughout his whole body, severe pain in his neck and upper body, tremors, anxiety, constant diarrhea, shakes, insomnia, and hallucinations’”; and “that it was the Defendants’ policy and practice to force inmates with OUD—even those managing the condition with MOUD—into withdrawal, withholding access to effective medications recognized as the standard of care, because of the stigma surrounding addiction.”[362]
• Declarations #1-3 Supporting Complaint
• Opposition to Motion to Dismiss
• Order Denying Motion to Dismiss
• Motion for Temporary Restraining Order and Preliminary Injunction
• Order to Provide MOUD Pending Hearing on Temporary Restraining Order and Preliminary Injunction
• Transcript of Hearing on Motion for Temporary Restraining Order and Preliminary Injunction
• Reply Supporting Motion for Temporary Restraining Order and Preliminary Injunction
• Plaintiff’s Motion for Summary Judgment
• Opposition to Defendant WVDOC’s Motion for Summary Judgment
• Opposition to Defendant Wexford Health Sources, Inc.’s Motion for Summary Judgment
• Reply Supporting Plaintiff’s Motion for Summary Judgment
• Order on Motions for Summary Judgment
United States v. The Unified Judicial System of Pennsylvania (E.D.P.A. 2022): On January 31, 2024, the DOJ entered a settlement from a 2022 lawsuit against the Unified Judicial System of Pennsylvania, the Supreme Court of Pennsylvania, and eleven Pennsylvania state court systems.[363] The suit alleged that the court defendants were violating the ADA by restricting access for MOUD in the court system. The policy of these courts varied somewhat, but ranged from limiting MOUD access to one type of medication[364] to ordering cessation of all MOUD as a condition of probation and parole, or as a requirement to participate in treatment court programs.[365] As part of the eventual settlement of the case, the parties agreed that the Administrative Office of Pennsylvania Courts would “recommend and encourage” all Pennsylvania judicial districts to adopt a MOUD policy of allowing individuals to access physician-prescribed medication.[366] The three county court system affirmed that they would adopt this MOUD policy.[367] The defendants paid a total of $100,000 to individuals who had been affected by the MOUD denial policy.[368] The briefings in the case are also useful because the court dismissed the original case, and the DOJ subsequently filed an amended complaint that pled sufficient facts to bring a MOUD access claim under the ADA.
• Transcript of Pre-Motion Hearing (Providing Useful Background on Case)
• Opposition to Motion to Dismiss
• Letter Addressing Court Questions Regarding Motion to Dismiss
• Order Granting Motion to Dismiss without Prejudice
• Opposition to Motion to Dismiss Amended Complaint
Non-Carceral Case List and Citations
Ashland Hospital Corporation DOJ Litigation: On January 25, 2022, the DOJ settled a complaint against Ashland Hospital Corporation, which alleged that the hospital violated Title III of the ADA after refusing to accept a psychiatric patient receiving buprenorphine.[369] Ashland Hospital had a policy of excluding prospective patients whose search results in the Kentucky’s prescription drug monitoring program contained drug-related criminal convictions. The hospital did not deny patients with other forms of criminal convictions or make exceptions for patients with a disability on the basis of OUD. Under the settlement agreement, Ashland Hospital would: cease to discriminate on the basis of OUD; not impose eligibility criteria to screen out those with OUD; conduct ADA training; pay a $50,000 civil penalty to the United States; and make a $40,000 damages payment to the complainant.
Breaux v. Bollinger Shipyards, LLC (E.D. La. 2018): the court denied the defendant’s summary judgment motion on the plaintiff’s ADA and Family Medical Leave Act claims, but granted the motion on a privacy rights claim.[370] The plaintiff, an employee of one of the defendants, was prescribed Suboxone after difficulty withdrawing from physician-prescribed painkillers. When the plaintiff was hired by the defendant, he did not disclose his Suboxone prescription, despite the hiring form stating that he should disclose any safety-sensitive medications.[371] The defendant eventually learned of the plaintiff’s prescription after an unrelated injury caused the disclosure of the plaintiff’s medical records, and restricted the duties of the plaintiff.[372] After requesting ADA accommodations to return to his normal duties while on Suboxone, the defendant informed the plaintiff that he should take several months of leave to wean himself off the medication (the employer had a policy of a maximum of six months of leave before termination).[373] The employer placed the plaintiff on leave, who then filed a complaint. The court, in rejecting the employer’s summary judgment motion on the ADA claim, found that allowing the plaintiff to continue his Suboxone treatment—which had not caused any issues during his employment—was a reasonable accommodation.[374]
• Opposition to Motion to Dismiss
• Order and Opinion on Motion to Dismiss
• Opposition to Motion for Summary Judgment
• Order and Opinion on Motion for Summary Judgment
Cumberland County, Tennessee DOJ Litigation: The DOJ entered into a consent decree with Cumberland County, Tennessee on January 19, 2023.[375] The DOJ alleged that the county’s Sheriff Department violated Title I of the ADA by preventing people who take MOUD from working for the Department.[376] Under the consent decree, the defendant county agreed that it would: not discriminate against applicants or employees in violation of Title I; revise its MOUD policy and provide reasonable accommodation; and provide the complainant who initiated the EEOC adjudication and DOJ complaint with $160,000 in monetary damages.[377]
• Joint Motion for Consent Decree
EEOC v. Appalachian Wood Products, Inc (W.D. Pa. 2017): the defendant employer refused to hire an applicant because of his consumption of medically-prescribed Suboxone. The employer had a policy and practice of barring job applicants who were prescribed MOUDs, due to “safety” concerns. Additionally, the employer required applicants to disclose their use of any medication prior to making condition offers of employment, and then would refuse to hire those taking MOUDs. [378] The EEOC sued under Title I of the ADA, and Title I of the Civil Rights Act of 1991.[379] Nearly one year later, the parties entered a consent decree.[380] The consent decree included an agreement to not use the results of medical examinations or inquiries in conditional offers of employment, to pay the plaintiff $42,500, to change its hiring policies, and conduct ADA training.[381]
• Opposition to Motion for Protective Order
EEOC v. Foothills Child Development Center, Inc. (D.S.C. 2018): the EEOC sued an afterschool program under Title I of the ADA after it fired a teacher for his use of Suboxone.[382] After offering employee a position, the program learned that he was tapering off of Suboxone from his medical form.[383] Half an hour into his employment, the program fired the employee.[384] The EEOC’s administrative procedures failed to yield a conciliation agreement with the employer, after which the commission filed suit.[385] One week after filing its complaint, the EEOC entered into a consent decree with the employer.[386] The consent decree included a compliance agreement with regards to the ADA, a $5,000 payment to the employee, and a revised substance abuse policy that included a nondiscrimination provision.[387]
• Joint Motion for Consent Decree
EEOC v. Hussey Copper Ltd. (W.D. Pa. 2010):[388] the EEOC sued the defendant employer under Title I of the ADA and Title I of the Civil Rights Act of 1991, challenging the employer’s treatment of an applicant whose offer of employment was withdrawn after the employer learned that the applicant was recovering from OUD in a supervised rehabilitation program.[389] The employer moved for summary judgment, arguing that the applicant was not a “qualified individual” under the ADA (the employer did not dispute the applicant’s disability or that the applicant suffered an adverse action).[390] While neither party disputed that the applicant met the first prong of a “qualified individual” analysis—that he had the “requisite skill, experience, education and other job-related qualifications” for the position—the second prong—that the individual could perform the essential functions of the position with or without reasonable accommodation—was in dispute.[391] Both parties agreed that the position was safety-sensitive, but the EEOC argued—and the court agreed—that the applicant’s OUD was irrelevant to the safety-sensitive nature of the job, and that the employer had failed to conduct an individualized assessment of the applicant’s abilities.[392] The court also ruled that an employer is not entitled to a “direct threat” exception to the ADA if the only basis for claiming an applicant is a direct threat to safety is the applicant’s OUD disability.[393] The case also contains a useful example of an expert’s report on damages that can be copied in other MOUD access cases.[394] Importantly, the case also had a bench trial, for which a transcript is available.[395]
• Opposition to Motion for Summary Judgment
• Order Denying Motion for Summary Judgment
• Plaintiff’s Expert Report on Damages
• Plaintiff’s Proposed Findings of Fact
• Plaintiff’s Proposed Conclusions of Law
• Transcripts (#1-3) of Bench Trial on Motion for Summary Judgment
EEOC v. Modern Group, Ltd. (E.D. Tex. 2024): the EEOC filed suit against an employer and its parent company, alleging that the defendants violated Title I of the ADA after revoking a conditional offer of employment.[396] The employment offer was rescinded after the applicant disclosed his prescriptions for methadone and Xanax to a third-party drug testing facility. The medical review officer of the defendants flagged the applicant’s prescriptions as a safety issue for their sedating side effects, but did not review the applicant’s medical records nor examine him.[397] After the employer rescinded its offer and the EEOC brought suit, both parties moved for summary judgment. In a lengthy opinion, the court denied both parties’ summary judgment motions, but ruled that the defendants operated an integrated enterprise, and that therefore both could be liable for an ADA violation.[398] Shortly after the court’s ruling on summary judgment, the parties entered into a consent decree.[399] In the decree, the parties agreed that the defendants agreed that they would: not discriminate against those who take MOUDs; pay the applicant $35,000; and revise their workplace policies and trainings to be ADA-compliant.[400]
• Opposition to Motion for Protective Order (Discovery)
• Sur-Reply in Opposition to Motion for Protective Order (Discovery)
• Opposition to Motion to Compel
• Plaintiff’s Motion for Partial Summary Judgment (Redacted)
• Response in Opposition to Defendants’ Motion for Summary Judgment (Redacted)
EEOC v. Professional Transportation, Inc. (S.D. W. Va. 2020): the defendant employer rescinded a conditional offer made to a job when it learned of her MOUD consumption.[401] The applicant disclosed her Suboxone treatment prior to taking a drug test, which was a condition of her employment as a van driver.[402] The employer determined that Suboxone made the applicant unqualified for the position, despite never inquiring with the applicant whether the medication gave her side effects or inquiring about other aspects of her disability—and, in fact, the applicant was experiencing no side effects from the MOUD.[403] The EEOC filed a complaint under Title I of the ADA.[404] The parties entered into a consent decree, whereby the employer would: cease to discriminate on the basis of disability or status of taking medications for drug addiction; pay the applicant $60,000 ($20,000 in back pay and $40,000 in compensatory damages for emotional distress); and conduct ADA compliance training.[405]
EEOC v. Randstad (D. Md. 2015): the EEOC sued under Title I of the ADA and Title I of the Civil Rights Act of 1991, alleging that an applicant recovering from OUD in a supervised rehabilitation program was discriminated against by a potential employer.[406] The applicant informed the potential employer that she was on methadone prior to taking a urine test, with the employer telling her that “I’m sure we don’t hire people on methadone . . . .”[407] After the EEOC had received a complaint from the applicant, the Commission issued a Letter of Determination to the defendant stating there was reasonable cause to believe that the ADA was violated. The defendant refused to implement the EEOC’s recommended policy and practice changes, and the EEOC filed suit.[408] Three months later, the employer and EEOC entered into a consent decree to settle the case.[409] The consent decree included $50,000 in back pay and compensatory damages for the applicant, and an agreement that the employer would not refuse to hire or exclude any applicant based on the applicant’s positive test for prescription medications.[410]
EEOC v. SoftPro (E.D.N.C. 2018): an employee had taken MOUD for eight years prior to entering an in-patient treatment program to eliminate his need to take medication. Upon returning to work following his leave of absence for the program, his employer questioned the reasons for the employee’s absence. After the administrative conciliation process failed, the EEOC sued, alleging that the employer’s conduct violated Title I of the ADA.[411] Soon after the complaint was filed, the employee filed a motion to intervene, arguing that his individual interests might differ from the remedies sought by the EEOC.[412] The motion was granted, without objection from the EEOC or the employer. The parties ultimately entered a consent decree, which stipulated that the employer would: no longer exclude those who are currently participating in or who have completed drug rehabilitation or substance use treatment, including MOUD; provide the former employee with a neutral letter of reference; revise its drug and alcohol policy to become ADA-compliant; and pay the former employee $80,000.[413]
Indiana State Board of Nursing DOJ Litigation: On March 25, 2022 the DOJ issued a notice to the Indiana State Board of Nursing (“Nursing Board”) that it was in violation of Title II of the ADA.[414] The Nursing Board had prohibited a nurse from participating in the Indiana State Nursing Assistance Program (“ISNAP”)—which rehabilitates and monitors nurses with drug or alcohol addiction—because she was prescribed a MOUD.[415] Participation in the program is often a requirement for reinstating licensure for those with drug or alcohol addiction in the nursing profession.[416] The ISNAP program is abstinence-based, requiring participants to “refrain from taking any controlled substances including the use of [MOUD] while in monitoring.”[417] The complainant, a former nurse who previously self-reported her OUD to ISNAP, was suspended indefinitely by the Nursing Board in 2014.[418] In 2016, she started taking buprenorphine, with the intention of indefinite consumption, and became determined to become reemployed as a nurse. However, ISNAP informed her that she would have to taper off her MOUD within three months and, after ISNAP discouraged her enrollment, the complainant did not enroll.[419] The DOJ ruled that ISNAP’s policy and enforcement discriminated against the complainant on the basis of her disability. Additionally, the DOJ ruled that the policy of requiring the complainant to cease her MOUD treatment was not necessary to ensure that she achieved rehabilitation and to monitor her for illegal use of opioids.[420] The DOJ advised the ISNAP and Nursing Board to revise its MOUD policy, educate vendors about the requirements of Title II, pay compensatory damages to the complainant and all others injured by the MOUD policy, and provide a written status report on its compliance efforts.[421] The DOJ further noted that failure to comply would result in an enforcement action.
Massachusetts General Hospital DOJ Litigation: On August 7, 2020, the DOJ resolved allegations against Massachusetts General Hospital (“MGH”) that it had violated Title III of the ADA.[422] MGH had denied a patient with cystic fibrosis eligibility for a lung transplant because he was being treated with a prescription MOUD. The patient was evaluated for a transplant while participating in a supervised rehabilitation program and not taking illegal drugs. MGH rejected his transplant request because of his MOUD, and provided no further evaluation in accordance with its standard transplant process. The patient was able to secure a transplant at another hospital, but his mother had to leave her job to provide him with care due to the change in location. Under the settlement agreement, MGH implemented a nondiscrimination policy regarding MOUDs and transplants; provided ADA training to medical staff regarding transplant decisions; and paid the patient and his mother $250,000 in monetary relief for emotional distress and out of pocket expenses.
Massachusetts Skilled Nursing Home DOJ Litigation Series: On May 10, 2018, the DOJ entered into a settlement agreement with Charlwell Operating, LLC. (“Charlwell”), a skilled nursing facility that refused to accept a patient, the complainant, for treatment because of his ongoing Suboxone consumption.[423] Specifically, the facility provided rehabilitation programs in Massachusetts. The complainant filed a complaint with the DOJ, alleging a violation of Title III of the ADA. The DOJ investigation determined that Charlwell, despite having a written policy that it would maintain the use of physician-prescribed MOUD, refused to admit any patients taking MOUDs in 2017. The consent agreement stated that Charlwell would: cease discriminating on the basis of disability or MOUD; train its employees and contractors to be ADA compliant; and pay a civil penalty of $5,000. In exchange, the DOJ agreed to not institute a civil action at the time, but would continue to monitor Charlwell’s compliance with the settlement agreement.
After its enforcement action against Charlwell Operating LLC., the DOJ continued to pursue enforcement and settlement with skilled nursing facilities in Massachusetts that refused to provide services or admit those undergoing treatment with MOUD. On September 17, 2019, the DOJ reached an agreement with Athena Health Care Systems (“Athena”), which operated 16 skilled nursing facilities in Massachusetts.[424] Two complaints alleged that they were denied admission to Athena facilities because of their MOUD treatment. Both were seeking treatment for unrelated issues, but required the facilities to administer their MOUDs. Under the terms of the settlement agreement, Athena would adopt a nondiscrimination policy, train its staff on the ADA and OUD, and pay a civil penalty of $10,000 to the United States.
The DOJ, through the U.S. Attorney’s Office, District of Massachusetts, continued its enforcement actions against nursing facilities when it settled a complaint against Alliance Health and Human Services (“Alliance”).[425] Alliance, which operated eight skilled nursing facilities, denied admission to individuals seeking admission for services on over 350 occasions because they were being treated with MOUD. All these individuals were seeking admission for unrelated health needs, but needed Alliance to administer their MOUD while admitted. The settlement agreement mandated that Alliance would adopt a nondiscrimination policy, provide training on the ADA and OUD to admissions personnel, and pay a $50,000 civil penalty to the United States.
The DOJ entered into a fourth settlement agreement skilled nursing providers on August 4, 2021.[426] Designated Genesis Facilities provided skilled nursing services, post-acute medical services, and rehabilitation programs. Several complaints filed with the DOJ alleged that Designated Genesis Facilities violated Title III of the ADA after it refused to accept individuals for admission when they were being treated with MOUDs, in line with its stated practice of denying admission to individuals who take medication prescribed to treat OUD. Additionally, the DOJ noted that Designated Genesis Facilities received funds from the HHS, and therefore was subject to the provisions of Section 504 of the Rehabilitation Act. Under the terms of the settlement agreement, Designated Genesis Facilities would: cease to discriminate against any individual on the basis of OUD; adopt and enforce a nondiscrimination policy which specifically protected MOUD; revise its admission policy to accommodate MOUD; and pay a $60,000 civil penalty, amongst other reforms.
A fifth settlement agreement was reached by the DOJ in September 2021 with four entities that managed skilled nursing facilities.[427] The nursing facilities had turned away those seeking treatment because they were prescribed MOUDs. The terms of the settlement agreement included civil penalties totaling $55,000 and the adoption of a nondiscrimination policy.
• Settlement Agreement (with Hebrew Senior Life Inc.)
A sixth settlement was reached between The Oaks nursing facility and the DOJ and HHS in December 2021.[428] The Oaks had denied admission to a prospective resident because of his MOUD prescription, in violation of Title III of the ADA, the Rehabilitation Act, and Section 1557 of the Affordable Care Act. Under the terms of the settlement, The Oaks agreed to: cease discrimination on the basis of MOUD consumption; create a nondiscrimination policy for the DOJ and HHS to review; and train new employees and contractors about the agreement.
Massachusetts Trial Court DOJ Litigation: On March 24, 2022, the DOJ announced[429] that it reached a settlement with the Massachusetts Trial Court system to resolve allegations that the state’s drug courts forced court participants to abstain from taking methadone and buprenorphine to treat their opioid addiction. According to the settlement,[430] opioid use disorder is a disability protected by the Americans with Disabilities Act, and the state’s twenty five drug court will no longer deny participation to people who are treating their opioid use disorder with MOUD.[431]
New England Orthopedic Surgeons DOJ Litigation: On May 20, 2021, the DOJ settled a Title III ADA claim against New England Orthopedic Surgeons (“NEOS”), after alleging that NEOS turned away patients receiving MOUDs.[432] Two patients taking buprenorphine were referred to other providers by NEOS because its surgeons were not comfortable with the post-operative pain management protocol needed for their full joint replacement surgeries, in violation of the ADA. Under the settlement agreement, NEOS adopted a nondiscrimination policy, provided training on the ADA and OUD, and paid each complainant $15,000 for pain and suffering.
Pennsylvania Department of Human Services HHS Litigation: On July 5, 2023, OCR reached a voluntary resolution agreement with the Pennsylvania Department of Human Services (“PA DHS”).[433] OCR alleged that PA DHS violated Section 504 of the Rehabilitation Act and Title II of the ADA when a county-operated child welfare agency overseen by PA DHS denied an individual the opportunity to apply to be a foster parent because of her MOUD prescription. OCR’s investigation identified that PA DHS’s oversight of county child welfare agencies failed to prevent discrimination against those with disabilities. Under the terms of the agreement, PA DHS agreed to: designate a Section 504 and Title II Coordinator; cease discriminating against individuals with disabilities, including those with OUD; develop a procedure for individuals to file complaints about discrimination; provide training about reasonable accommodations; and seek to resolve the complainant’s allegations with respect to the opportunity to be a foster parent.
• Voluntary Resolution Agreement
Pollard v. Drummond Company, Inc. (N.D. Ala. 2015): the plaintiff was terminated by defendant employer after receiving physician-prescribed methadone to treat chronic back pain.[434] After the EEOC brought a discrimination administrative action against the employer, the employee filed a Title I ADA lawsuit that exceeded the charges brought by the EEOC, and the court recognized that there was circuit split on whether such charges were justiciable or required administrative exhaustion.[435] Specifically, the issue was that the EEOC brought charges after the plaintiff was suspended, but before the plaintiff was terminated. The court ruled in favor of the plaintiff, holding that the termination was “virtually identical to his discrimination claim.”[436] The court also refused to grant summary judgment in the case, finding that there were disputed issues of material fact regarding the employer’s argument that the employee’s methadone consumption was a “direct threat” to the safety of the workplace (the court did grant the dismissal of the plaintiff’s claims of improper medical examination, which the plaintiff did not oppose).[437] The case was eventually settled.
• Opposition to Motion for Summary Judgment
• Order on Motion for Summary Judgment
• Plaintiff’s Damages Calculation
Ready to Work DOJ Litigation: On March 17, 2022, the DOJ entered into a settlement agreement with Ready to Work, a nonprofit residential, work, and services program for individuals experiencing homelessness in Aurora and Boulder, Colorado.[438] The agreement resolved a complaint that Ready to Work violated Title III of the ADA by denying her admission to its residential, work, and social services program because of her MOUD prescription. Under the terms of the agreement, Ready to Work would: cease to deny services on the basis of disability, including OUD; adopt nondiscrimination obligations; train staff on ADA obligations; and pay the complainant $7,500.[439]
Selma Medical Associates, Inc. DOJ Litigation: On December 21, 2018, the DOJ entered into a settlement agreement with Selma Medical Associates, Inc., a privately owned medical facility in Virginia that provides primary and specialty care to patients.[440] The DOJ had filed a complaint alleging that the defendant was violating Title III of the ADA by refusing to accept a new patient because of his Suboxone consumption. The DOJ determined that the facility had a policy of regularly turning away perspective patients who took MOUDs. Under the settlement agreement, the defendant agreed to not discriminate on the basis of disability—including OUD— to adopt a new nondiscrimination policy, and to pay $30,000 in damages to the complainant and $10,000 in civil penalties to the United States.[441]
Strickland v. Delaware County (E.D. Pa. 2022): the court held that the defendants’ failure to provide the plaintiff with methadone to treat his opioid use disorder likely violated the ADA, Rehabilitation Act, and Fourteenth Amendment because “[d]iscrimination under the ADA and the Rehabilitation Act encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for a plaintiff's disabilities.”[442] And here, the “Defendants failed to undertake any individualized review of Strickland's situation to determine whether he could be safely provided with his prescribed medical treatment, provide Strickland with an adequate alternative treatment, or otherwise reasonably accommodate Strickland’s disability.”[443]
• Opposition to Motion to Dismiss
• Opposition to Motion for Summary Judgment
Tassinari v. Salvation Army National Corporation: A class of individuals residing at Salvation Army rehabilitation centers are challenging the organization’s policy of refusing to administer MOUD, and of prohibiting participants from receiving MOUD. The case was brought under the ADA, Rehabilitation Act, and FHA.[444] The court rejected the defendant’s motion to dismiss claims. Among the arguments raised were: that the Establishment Clause prohibited court adjudication of internal church policy (rejected for ripeness);[445] that the court lacked personal jurisdiction over the Salvation Army’s National Corporation (granted under analysis of Massachusetts’s long arm statute)[446] and New York Corporation (rejected);[447] failure to state a claim due to the statute of limitations (rejected except for one class representative’s FHA claims, which fell outside the limitations period);[448] that the First Amendment exempted the defendant from ADA and FHA claims (FHA claim rejected for lack of sufficient factual record, and ADA claim moot after being dismissed);[449] and that the class allegations should be struck (rejected for being a “drastic” and “disfavored” remedy).[450] The court subsequently rejected the plaintiffs’ motion for a preliminary injunction and preliminary class certification.[451] Motions for class certification and summary judgment are now pending before the court.
• Response to Motion to Dismiss
• Request for Judicial Notice of Facts for Motion to Dismiss
• Reply in Support of Motion to Compel Discovery
• Opposition to Motion to Stay Discovery
• Opposition to Motion to Seal
• Motion for Preliminary Injunction
• Motion for Provisional Class Certification for Preliminary Injunction
• Expert Report in Support of Motion for Preliminary Injunction
• Supplemental Information for Preliminary Injunction
• Transcript of Oral Argument for Preliminary Injunction and Provisional Class Certification
• Order on Preliminary Injunction and Provisional Class Certification
• Motion for Class Certification
• Declaration #1 in Support of Class Certification
• Declaration #2 in Support of Class Certification
• Declaration #3 in Support of Class Certification
• Reply in Support of Class Certification
United States v. Bacchus: In 2021, the United States sued a landlord and his property manager under the FHA.[452] These two defendants discriminated against their renter, who suffered from alcohol use disorder, after refusing to allow him to move his pregnant girlfriend and her daughter into his property under the guise of a housing ordinance that only five individuals could live in a housing zone (four other persons lived in the unit above the renter). The defendants engaged the upstairs neighbors to monitor the renter to ensure that his family did not move in, threatened to evict the renter if his family moved in, and told him that the lease would not be renewed. They also told the renter that he had “alcoholic thinking. Its [sic] not enough to stop drinking . . . . I will never rent an apartment to a drunk again with less than 1 yr in recovery.”[453] The renter informed the defendants that they were violating the FHA, and the defendants replied by suggesting that the rent could be increased. The renter also contacted the city’s zoning commission, which informed him that he could have five unrelated persons live in his home. After the city issued a warning about conditions at the house to the defendants, the defendants threatened to retaliate against the renter. After moving out, the renter filed a complaint with HUD. HUD referred the case to the DOJ, which filed suit. The renter intervened, and the parties entered a consent decree. The decree enjoined the defendants from violating the FHA, created a springing injunction if the renter returned to a property owned or managed by the defendants, and called for the defendants to pay $75,000 in monetary damages to the renter.
• Motion to Intervene and Complaint in Intervention
• Brief Supporting Motion to Intervene
• Joint Motion for Entry of Consent Decree
United States v. City of Fort Worth: In 2015, the United States sued the City of Fort Worth under the FHA and ADA. The city’s zoning ordinance only allowed single-family dwelling units in certain residential districts. Ebby’s Place, a four-bedroom home for persons with disabilities recovering from drug and alcohol addiction, was located in such a zone. The city received a complaint about the home, and issued fines cumulating to over $7,400. Ebby’s Place requested reasonable accommodation from the city, and filed a complaint with HUD that the city refused to issue the accommodation to the zoning code. The city eventually ordered Ebby’s Place to shut down, and the Department of Justice filed suit under the FHA and ADA, and Ebby’s Place filed suit to intervene in the lawsuit. The parties eventually settled, with the City agreeing to allow Ebby’s Place to operate with up to seven persons and paying Ebby’s Place $135,000.[454]
• Complaint of Plaintiff Intervenor
United States v. City of Jackson: In 2020, the Department of Justice sued the City of Jackson under the FHA and ADA.[455] The city’s zoning ordinance allowed “group homes for the handicapped” of six or fewer residents as-of-right in single-family and multi-family residential zones. Urban Rehab ran a five-bedroom home in a single-family residential zone. The city issued a citation to Urban Rehab, claiming that the individuals serviced (those with mental health problems or substance use disorders) did not qualify as having a disability. The home notified the DOJ, which filed suit. The parties entered a consent decree, which forbid the City from using the “group home for the handicap” ordinance exception to prohibit recovery homes for substance use from operating. The city also paid $100,000 to Urban Rehab, $35,000 in civil penalties, and $50,000 to individuals harmed by the city’s actions, who could submit claims to the court for a portion of the money.
United States v. Village of Hinsdale: In 2020, the Village of Hinsdale, Illinois, attempted to enforce its zoning regulations to prevent Trinity Sober Living LLC (“TSL”) from running a sober living home with ten residents. TLS had operated for almost a year before the enforcement action. The zoning location was single-family residential, which limited co-living to not more than three persons not so related. Multi-family zoning locations allowed group homes, but limited the residency count to six persons. After TSL requested a reasonable accommodation to waive the cap on how many individuals could live in the home, the Village filed suit to enforce the zoning code, claiming that the home was a “commercial use” outside the permits of a residential neighborhood. The United States informed the Village that the zoning ordinance discriminated against persons with disabilities, and the Village subsequently withdrew its enforcement action, instead taking the new position that the number of persons residing in the home violated the zoning rules. TLS and the United States then brought separate suits against the Village, with both alleging FHA violations and TLS claiming an ADA violation. Both the FHA and ADA claims were premised on the Village’s refusal to make a reasonable accommodation.[456] The court denied the Village’s motions to dismiss, and the two lawsuits were consolidated. The parties eventually entered a consent decree. The terms included that the Village would not: use its zoning or land use laws to discriminate on the basis of disability; refuse to make reasonable accommodations when requested in the application of the zoning rules; or coerce, intimidate, or interfere with any right protected by the FHA and ADA. The Village also agreed to amend its zoning code to allow group homes to serve persons with disabilities, and pay $800,000 in penalties and fines.[457]
• Opposition to Motion to Dismiss
• Order Denying Motion to Dismiss
• Joint Motion to Consolidate Cases
West Virginia Department of Health and Human Resources Bureau for Children and Families HHS Litigation: On April 22, 2020, OCR reached a voluntary resolution agreement with the West Virginia Department of Health and Human Resources Bureau for Children and Families (“DDHR”).[458] HHS alleged that DDHR violated Section 504 of the Rehabilitation Act and Title II of the ADA after it denied foster applicants their request for placement of their niece during her custody proceedings. The reason for the denial was that one of the foster applicants used medically prescribed Suboxone and had a history of OUD. As part of the voluntary resolution agreement, DHHR had to: allow participants with disabilities, including individuals with OUD, equal access to DHHR programs; modify practices and policies to avoid discrimination on the basis of disability; furnish appropriate auxiliary aids and services to afford qualified participants with disabilities the chance to use DHHR’s child welfare services; and create and fill staff positions to implement these new policies.
• Voluntary Resolution Agreement
[1] Version 1. Last updated November 27, 2024.
[2] Merianne R. Spencer, Matthew F. Garnett, & Arialdi M. Miniño, Drug Overdose Deaths in the United States, 2002-2022, Centers for Disease Control and Prevention NCHS Data Briefs at *4 (Dec. 21, 2023), https://stacks.cdc.gov/view/cdc/135849 (showing 0.4 deaths per 100,000 people in 2002).
[3] Centers for Disease Control and Prevention, National Vital Statistics System, Provisional Drug Overdose Death Counts https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm (last visited Oct. 29, 2024).
[4] Substance Abuse and Mental Health Services Administration, Treatment Improvement Protocol Tip 63 (2021) https://store.samhsa.gov/sites/default/files/pep21-02-01-002.pdf.
[5] Id.
[6] Substance Abuse and Mental Health Services Administration, Key Substance Use and Mental Health Indicators in the United States: Results from the 2022 National Survey on Drug Use and Health (2023) at *36, https://www.samhsa.gov/data/sites/default/files/reports/rpt42731/2022-nsduh-nnr.pdf.
[7] National Institute on Drug Abuse, Medications to Treat Opioid Use Disorder Research Report
(2018), https://www.drugabuse.gov/publications/research-reports/medications-to-treat-opioid-
addiction/how-do-medications-to-treat-opioid-addiction-work.
[8] Peter Grinspoon, 5 Myths about Using Suboxone to Treat Opioid Addiction, Harvard Health Publishing, Harvard Medical School (Aug. 8, 2024) https://www.health.harvard.edu/blog/5-myths-about-using-suboxone-to-treat-opiate-addiction-2018032014496.
[9] Rahul Gupta et al., Transforming Management of Opioid Use Disorder with Universal Treatment, 387(15) New England J. of Med. 1341 (2022) (available at https://www.medschool.umaryland.edu/media/som/microsites/esmcc/docs/nejmp2210121-(1).pdf).
[10] Despite the broad consensus among medical experts and law enforcement organizations that MOUD is an essential medicine that saves lives, improves drug treatment results, and lowers criminal recidivism rates, entrenched stigma towards OUD generally and MOUD specifically continues to obstruct access to these life-saving medications, especially in the criminal justice system. See Josiah D. Rich & Sarah E. Wakeman, Barriers to Medications for Addiction Treatment: How Stigma Kills, 53 Substance Use & Misuse 330 (2018). This stigma is grounded in deeply rooted misconceptions that OUD is a choice and a moral failing, rather than a medical condition that permanently rewires the brain and renders it chemically dependent on opioids. According to National Institute on Drug Abuse Director Dr. Nora D. Volkow stigma “is especially powerful in the context of substance use disorders. Even though medicine long ago reached the consensus that addiction is a complex brain disorder, those with addiction continue to be blamed for their condition. The public, as well as many people working in health care and in the justice system, continues to view addiction as a result of moral weakness and flawed character.” Nora D. Volkow, Fighting Back Against the Stigma of Addiction, Scientific American (Sep. 1, 2020), https://www.scientificamerican.com/article/ fighting-back-against-the-stigma-of-addiction/. Both the Department of Health and Human Services and the American Medical Association’s Opioid Task Force have identified countering stigma concerning MOUD and people with OUD as integral to addressing the opioid crisis.
[11] Learn About Treatment, Treatment for Opioid Use Disorder (last accessed Oct. 25, 2024), https://www.learnabouttreatment.org/treatment/medications-for-opioid-use-disorder/.
[12] See Nora D. Volkow, George F. Koob, & A. Thomas McLellan, Neurobiologic Advances from the Brain Disease Model of Addiction, 374(4) New England J. of Med. 363 (2016); George F. Koob & Nora D. Volkow, Neurocircuitry of Addiction, 35 (1) Neuropsychopharmacology 217 (2010).
[13] See Nora D. Volkow, George F. Koob, & A. Thomas McLellan, supra note 12; George F. Koob & Nora D. Volkow, supra note 12.
[14] See Nora D. Volkow, George F. Koob, & A. Thomas McLellan, supra note 12; George F. Koob & Nora D. Volkow, supra note 12; and Nora D. Volkow, Michael Michaelides, & Ruben Baler, The Neuroscience of Drug Reward and Addiction, 99(4) Physiol Rev. 2115 (2019).
[15] See Nora D. Volkow, George F. Koob, & A. Thomas McLellan, supra note 12; George F. Koob & Nora D. Volkow, supra note 12; and Nora D. Volkow, Michael Michaelides, & Ruben Baler, supra note 14.
[16] Substance Abuse and Mental Health Services Administration, supra note 4.
[17] Nora D. Volkow, George F. Koob, & A. Thomas McLellan, supra note 12.
[18] See, e.g., Pesce v. Coppinger, 355 F. Supp. 3d 35, 40 (D. Mass. 2018) (“As with other chronic diseases, opioid use disorder involves cycles of relapse and remission. Without treatment or other recovery, opioid use disorder may result in disability or premature death.”); Taylor v. Wexford Health Sources, Inc., No. 2:23-CV-00475, 2024 WL 38555, at *1 (S.D.W. Va. Jan. 3, 2024) (“As is common for people with Opioid Use Disorder, he suffered relapses during times of increased stress or gaps in access to treatment but continued to progress in his treatment and recovery.”).
[19] Taylor v. Wexford Health Sources, Inc., No. 2:23-CV-00475, 2024 WL 2978782, at *13 (S.D.W. Va. June 13, 2024).
[20] P.G. v. Jefferson Cnty., New York, No. 5:21-CV-388, 2021 WL 4059409, at *5 (N.D.N.Y. Sept. 7, 2021).
[21] While such interventions are historically popular for alcohol use disorder, they are not the medical standard of care today either.
[22] American Society of Addiction Medicine, The ASAM National Practice Guideline for the Treatment of Opioid Use Disorder: 2020 Focused Update. J Addict Med. 2020 (available at https://sitefinitystorage.blob.core.windows.net/sitefinity-production-blobs/docs/default-source/guidelines/npg-jam-supplement.pdf?sfvrsn=a00a52c2_2); Jennifer J. Carroll et al., Linking People with Opioid Use Disorder to Medication Treatment: A Technical Package of Policy, Programs, and Practices. National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, Department of Health and Human Services, Centers for Disease Control and Prevention (2022) (available at https://www.cdc.gov/overdose-prevention/media/pdfs/Linkage-to-Care_Edited-PDF_508-3-15-2022.pdf).
[23] A third MOUD, naltrexone, is not used in managing opioid withdrawal. However, the standard of care after a patient completes the process of medically-supervised withdrawal includes continuation of treatment with any of the three FDA-approved MOUDs: methadone, buprenorphine, or naltrexone. American Society of Addiction Medicine, supra note 22.
[24] American Society of Addiction Medicine, supra note 22.
[25] Nora D. Volkow, Michael Michaelides, & Ruben Baler, supra note 14 .
[26] Substance Abuse and Mental Health Services Administration, supra note 4; American Society of Addiction Medicine, supra note 22.
[27] Substance Abuse and Mental Health Services Administration, National Survey Of Substance Abuse Treatment Services (N-SSATS): 2020, Data On Substance Abuse Treatment Facilities (2021) at *76, https://www.samhsa.gov/data/sites/default/files/reports/rpt35313/2020_NSSATS_FINAL.pdf.
[28] Id.
[29] National Institute on Drug Abuse, Medications to Treat Opioid Use Disorder Research Report: How Much Does Opioid Treatment Cost? (2018), https://nida.nih.gov/publications/research-reports/medications-to-treat-opioid-addiction/how-much-does-opioid-treatment-cost.
[30] Brian P. O’Rourke et al., Initiation of Medication for Opioid Use Disorder Across a Health System: A Retrospective Analysis of Patient Characteristics and Inpatient Outcomes, 5 Drug Alcohol Dependence Reports (2022).
[31] Substance Abuse and Mental Health Services Administration, Medications, Counseling, and Related Conditions: Medications for Substance Use Disorders (last updated Mar. 28, 2024), https://www.samhsa.gov/medications-substance-use-disorders/medications-counseling-related-conditions#medications-used-in-mat.
[32] This is important to keep in mind when addressing barriers to MOUD in correctional facilities because some jails and prisons offer only one form of MOUD, usually naltrexone, and this medication may be ineffective for your client’s medical needs.
[33] Substance Abuse and Mental Health Services Administration, supra note 4.
[34] Jeffrey Gudin & Jeffrey Fudin, A Narrative Pharmacological Review of Buprenorphine: A Unique Opioid for the Treatment of Chronic Pain, 9(1) Pain and Therapy 41 (2020).
[35] Pew, Medications for Opioid Use Disorder Improve Patient Outcomes (2020), https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2020/12/medications-for-opioid-use-disorder-improve-patient-outcomes.
[36] Substance Abuse and Mental Health Services Administration, supra note 4; American Society of Addiction Medicine, supra note 22.
[37] Substance Abuse and Mental Health Services Administration, supra note 4; American Society of Addiction Medicine, supra note 22; Jennifer J. Carroll et al., supra note 21; National Institute on Drug Abuse, What are Misconceptions about Maintenance Treatment? (June 2018), http://nida.nih.gov/publications/research-reports/medications-to-treat-opioid-addiction/what-are-misconceptions-about-maintenance-treatment; P. Rodriguez et al., Medications for Opioid and Alcohol Use Disorders: Research Insights for Criminal Justice Professionals [JCOIN Issue Brief #2], Justice Community Opioid Innovation Network (2021), https://www.jcoinctc.org/issue-brief-medications-for-opioid-and-alcohol-use-disorders/.
[38] World Health Organization, Opioid Agonist Pharmacotherapy Used for the Treatment of Opioid Dependence (Maintenance) (2024) https://www.who.int/data/gho/indicator-metadata-registry/imr- details/2718#:~:text=In%20clinical%20practice%2C%20they%20are,model%20list%20of%20essential% 20medicine.
[39] Naltrexone is commonly referred to by its brand name, Vivitrol.
[40] American Society of Addiction Medicine, supra note 22.
[41] Jennifer J. Carroll et al., supra note 21.
[42] Evgeny Krupitsky et al., Injectable Extended-Release Naltrexone for Opioid Dependence: a Double-Blind, Placebo-Controlled, Multicentre Randomised Trial, 377(9776) Lancet 1506 (Apr. 2011); Jennifer J. Carroll et al., supra note 21.
[43] Substance Abuse and Mental Health Services Administration, supra note 4.
[44] Additionally, one study showed that individuals who had successfully completed a course of buprenorphine to complete opioid withdrawal, and who were then offered a choice between continuing on buprenorphine or starting naltrexone for long-term treatment, opted for buprenorphine. David A. Fiellin et al., Primary Care–Based Buprenorphine Taper vs Maintenance Therapy for Prescription Opioid Dependence: A Randomized Clinical Trial, 174(12) J. of the Am. Med. Ass’n Internal Med. 1947 (2014).
[45] Catherine E. Paquette et al., Expanding the Continuum of Substance Use Disorder Treatment: Nonabstinence Approaches, Clinical Psychology Review (2022).
[46] Substance Abuse and Mental Health Services Administration, supra note 4; American Society of Addiction Medicine, supra note 22; Centers for Disease Control and Prevention, Linking People with Opioid Use Disorder to Medication Treatment (2022), https://www.cdc.gov/drugoverdose/pdf/pubs/Linkage-to-Care-Resource-for-Action-508.pdf.
[47] Substance Abuse and Mental Health Services Administration, supra note 31.
[48] Catherine E. Paquette et al., supra note 45.
[49] National Institute on Drug Abuse, supra not 37; P. Rodriguez et al., supra note 37.
[50] Substance Abuse and Mental Health Services Administration, supra note 31.
[51] Joao P. DeAquino, Suprit Parida, & Mehmet Sofuoglu, The Pharmacology of Buprenorphine Microinduction for Opioid Use Disorder, 41(5) Clinical Drug Investigation 425 (2021).
[52] Substance Abuse and Mental Health Services Administration, supra note 4; American Society of Addiction Medicine, supra note 22; Centers for Disease Control and Prevention, supra note 22; Barbara Andraka-Christou et al., Laws for Expanding Access to Medications for Opioid Use Disorder: a Legal Analysis of 16 States & Washington D.C, 48(4) Am. J. of Drug and Alcohol Abuse 492 (2022).
[53] P. Rodriguez et al., supra note 37.
[54] National Institute on Drug Abuse, Medications to Treat Opioid Use Disorder Research Report: What is the Treatment Need Versus the Diversion Risk for Opioid Use Disorder Treatment? (June 2018), https://nida.nih.gov/publications/research-reports/medications-to-treat-opioid-addiction/what-treatment-need-versus-diversion-risk-opioid-use-disorder-treatment.
[55] Alexander R. Bazazi et al., Illicit Use of Buprenorphine/Naloxone Among Injecting and Noninjecting Opioid Users, 5(3) J. Addiction Med. 175 (2011); Zev Schuman-Olivier et al., Self-Treatment: Illicit Buprenorphine Use by Opioid-Dependent Treatment Seekers, 39(1) J. Substance Abuse Treatment 41 (2010).
[56] Paul Duffy and Adam John Mackridge, Use and Diversion of Illicit Methadone – Under what Circumstances Does It Occur, and Potential Risks Associated with Continued Use of Other Substances, 19(1-2) J. of Substance Use 48 (2013).
[57] Theodore J. Cicero et al., Use and Misuse of Buprenorphine in the Management of Opioid Addiction, 3(6) J. of Opioid Management 302 (2007).
[58] Theodore J. Cicero et al., Factors Contributing to the Rise of Buprenorphine Misuse: 2008-2013, 142 Drug and Alcohol Dependence 98 (2014).
[59] Pew, supra note 35.
[60] See American Medication Association, AMA Opioid Task Force Issues New Recommendations to Urge Policymakers to Protect Patients’ Access to Evidence-Based Treatment, Remove Barriers to Comprehensive Pain Care (2019), https://end-overdose-epidemic.org/wp-content/uploads/2020/06/2019-AMA-Opioid-Task-Force-Recommendations-FINAL.pdf (supporting the removal of “administrative burdens or barriers that delay or deny care for FDA-approved medications used as part of [MOUD].”); American Medical Association, AMA Calls for Access to Substance Use Disorder Treatment in Prisons, Jails (2021), https://www.ama-assn.org/press-center/press-releases/ama-calls-access-substance-use-disorder-treatment-prisons-jails (stating that the well-accepted “standard of care for patients in jail and prison settings” is MOUD).
[61] 2020 Focused Updated Guideline Committee, The ASAM National Practice Guideline for the Treatment of Opioid Use Disorder: 2020 Focused Update, 14(2S) J. of Addiction Med. 1) (2020), https://journals.lww.com/journaladdictionmedicine/fulltext/2020/04001/the_asam_national_practice_guideline_for_the.1.aspx.
[62] U.S. Food & Drug Administration, Information about Medications for Opioid Use Disorder (MOUD) (updated May 22, 2024), https://www.fda.gov/drugs/information-drug-class/information-about-medications-opioid-use-disorder-moud (“All three [FDA-approved MOUD] treatments have been demonstrated to be safe and effective. FDA is working to identify treatment needs, expand access to treatment of existing MOUD, and promote development of new options for evidence-based treatment for OUD.”).
[63] Substance Abuse and Mental Health Services Administration, supra note 4 at ES-2. (“[J]ust as it is inadvisable to deny people with diabetes the medication they need to help manage their illness, it is also not sound medical practice to deny people with OUD access to FDA-approved medications for their illness.” The document goes on to say that MOUDs “should be successfully integrated with outpatient and residential treatment.”).
[64] https://www.who.int/data/gho/indicator-metadata-registry/imr-details/2718
[65] https://www.hhs.gov/about/news/2024/02/01/biden-harris-administration-marks-two-years-advancements-hhs-overdose-prevention-strategy-new-actions-treat-addiction-save-lives-press-release.html
[66] Substance Abuse and Mental Health Services Administration, supra note 4 at *ES-2, 1-5.
[67] Id. (citing R.E. Johnson et al., A Comparison of Levomethadyl Acetate, Buprenorphine, and Methadone for Opioid Dependence, 343(18) New England J. of Med. 1290 (Nov. 2, 2000); Evgeny Krupitsky et al., supra note 42; Joshua D. Lee et al., Extended-Release Naltrexone to Prevent Opioid Relapse in Criminal Justice Offenders, 374(13) New England J. of Med. 1232 (2016); Richard P. Mattick et al., Methadone Maintenance Therapy Versus No Opioid Replacement Therapy for Opioid Dependence, 3 Cochrane Database Systematic Reviews 1 (2009); Richard P. Mattick et al., Buprenorphine Maintenance Versus Placebo or Methadone Maintenance for Opioid Dependence, 2 Cochrane Database of Systematic Reviews 1 (2014); Marc Auriacombe et al., French Field Experience with Buprenorphine, 13 Supplement 1 Am. J. on Addictions S17 (2004); Louisa Degenhardt et al., Mortality Among Clients of a State-Wide Opioid Pharmacotherapy Program Over 20 Years: Risk Factors and Lives Saved, 105(1-2) Drug and Alcohol Dependence 9 (2009); Amy Gibson et al., Exposure to Opioid Maintenance Treatment Reduces Long-Term Mortality, 103(3) Addiction 462 (2008); and Robert P. Schwartz et al., Opioid Agonist Treatments and Heroin Overdose Deaths in Baltimore, Maryland, 1995–2009, 103(5) Am. J. Pub. Health 917 (2013)).
[68] Id. at 3-17 (citing Louisa Degenhardt et al., supra note 67; David S. Metzger et al., Human Immunodeficiency Virus Seroconversion Among Intravenous Drug Users In- and Out-of-Treatment: An 18-Month Prospective Follow-Up, 6(9) J. of Acquired Immune Deficiency Syndromes 1049 (1993); John C. Ball & Alan Ross, The Effectiveness of Methadone Maintenance Treatment (1991)).
[69] Rahul Gupta et al., supra note 9.
[70] Centers for Disease Control and Prevention, supra note 22.
[71] Centers for Disease Control and Prevention, supra note 22.
[72] American Society of Addiction Medicine, supra note 22.
[73] Shoshana V. Aronowitz et al., Lowering the Barriers to Medication Treatment for People with Opioid Use Disorder: Evidence for a Low-Threshold Approach, University of Pennsylvania Leonard Davis Institute of Health Economics (2022), https://ldi.upenn.edu/our-work/research-updates/lowering-the-barriers-to-medication-treatment-for-people-with-opioid-use-disorder/.
[74] Beth Han et al., Trends in and Characteristics of Buprenorphine Misuse Among Adults in the US, 4(10) J. of the Am. Med. Ass’n. Network Open (2021).
[75] Shoshana V. Aronowitz et al., supra note 73.
[76] Id.
[77] § 1262 of the Consolidated Appropriations Act, 2023 (available at https://www.congress.gov/117/bills/hr2617/BILLS-117hr2617enr.pdf).
[78] Substance Abuse and Mental Health Services Administration, Waiver Elimination (MAT Act) (last updated May 29, 2024), https://www.samhsa.gov/medications-substance-use-disorders/waiver-elimination-mat-act.
[79] H.B. 1656, 2019 Leg. (Ar. 2019). The list of state legislation can be found from: Charlie Severance-Medaris, State Options to Increase Access to Medication Assisted Treatment, National Council of State Legislatures (Aug. 31, 2023), https://www.ncsl.org/health/state-options-to-increase-access-to-medication-assisted-treatment.
[80] H.B. 19-1269, 2019 Leg., 74th Sess. (Co. 2019).
[81] H.B. 220, 2019 Leg., 150th Sess. (De. 2019).
[82] H.B. 555, 2019 Leg. (Mt. 2019).
[83] S.P. 218, 2019 Leg., 129th Sess. (Me. 2019).
[84] H.B. 887, 2017 Leg. (Md. 2017).
[85] S.B. 514, 2019 Leg. (Mo. 2019).
[86] H.B. 1176, 2021 Leg. (Ar. 2021).
[87] S.B. 257, 2022 Leg., 151th Sess. (De. 2022).
[88] H.B. 1521, 2022 Leg. (Fl. 2022).
[89] H.B. 500, 2023 Leg. (N.H. 2023).
[90] H.B. 411, 2023 Leg. (Vt. 2023).
[91] Sarah E. Wakeman & Josiah D. Rich, Barriers to Medications for Addiction Treatment: How Stigma Kills, 53(2) Substance Use & Misuse 330 (2017).
[92] Erin Fanning Madden, Intervention Stigma: How Medication-Assisted Treatment Marginalizes Patients and Providers, 232 Social Science & Medicine 324, 326 (2019).
[93] Id. at 327.
[94] Josiah D. Rich et al., Attitudes and Practices Regarding the Use of Methadone in US State and Federal Prisons, 82(3) J. of Urban Health 411 (2005).
[95] National Academies of Sciences, Engineering, and Medicine, Medications for Opioid Use Disorder Save Lives (2019) (available at https://www.ncbi.nlm.nih.gov/books/NBK541389/).
[96] Id.
[97] Marcus A. Bachhuber et al., Messaging to Increase Public Support for Naloxone Distribution Policies in the United States: Results from a Randomized Survey Experiment, 10(7) PLoS One (2015).
[98] Alene Kennedy-Hendricks, Emma E. McGinty, & Colleen L. Barry, Effects of Competing Narratives on Public Perceptions of Opioid Pain Reliever Addiction during Pregnancy, 41(5) J. of Health Politics, Policy, and Law 873 (2016).
[99] Nora D. Volkow, Fighting Back against the Stigma of Addiction, Scientific American (Sep. 1, 2020), https://www.scientificamerican.com/article/fighting-back-against-the-stigma-of-addiction/.
[100] U.S. Food & Drug Administration, Statement from FDA Commissioner Scott Gottlieb, M.D., on the Approval of a New Formulation of Buprenorphine and FDA’s Efforts to Promote More Widespread Innovation and Access to Opioid Addiction Treatments (Nov. 30, 2017), https://www.fda.gov/news-events/press-announcements/statement-fda-commissioner-scott-gottlieb-md-approval-new-formulation-buprenorphine-and-fdas-efforts.
[101] 42 C.F.R. § Part 8 RIN 0930-AA39 (available at https://www.federalregister.gov/documents/2024/02/02/2024-01693/medications-for-the-treatment-of-opioid-use-disorder) (reflecting that the old rules for take-home methadone dosages posed “disruption to employment, education and other daily activities for patients, and several of the criteria reflect outdated biases that promote stigma and discourage people from engaging in care in OTPs.”).
[102] Brendan Murphy, 4 Factors that Add to Stigma Surrounding Opioid-Use Disorder, American Medical Association (Sep. 13, 2018), https://www.ama-assn.org/delivering-care/overdose-epidemic/4-factors-add-stigma-surrounding-opioid-use-disorder (highlighting four factors that lead to stigma surround OUD and MOUD access: the misconception that OUD is a weakness or willful choice; the separation of OUD treatment leading to providers overlooking other health issues that can amplify OUD; the “loaded language” of OUD treatment; and the “criminal justice system’s unwillingness to yield to medical judgement in the treatment of [OUD].”).
[103] Centers for Disease Control and Prevention, Overdose Data to Action Case Studies: Stigma Reduction (2022), https://www.cdc.gov/overdose-prevention/media/pdfs/OD2A-Case-Studies-Stigma-Reduction-case-study-508.pdf.
[104] Julia Dickson-Gomez et al., “You’re Not Supposed to be on it Forever”: Medications to Treat Opioid Use Disorder (MOUD) Related Stigma Among Drug Treatment Providers and People who Use Opioids, Substance Abuse: Research and Treatment (2022) (“Providers and [people who use opioids (“PWUO”)] often viewed MOUD as one drug replacing another which discouraged providers from recommending and PWUO from accepting MOUD . . . . Results from this study suggest that the proportion of PWUO on MOUD is unlikely to increase without addressing MOUD stigma among drug treatment providers and PWUO seeking treatment.”).
[105] 42 U.S.C. §§ 12101 et seq.
[106] 29 U.S.C. §§ 701 et seq.
[107] 42 U.S.C. § 12112(a)
[108] Cleveland v. Pol'y Mgmt. Sys. Corp., 526 U.S. 795, 801, 119 S. Ct. 1597, 1601, 143 L. Ed. 2d 966 (1999) (citing 42 U.S.C. § 12101(a)(8), (9))
[109] 42 U.S.C. § 12132.
[110] 29 U.S.C. § 794.
[111] 42 U.S.C. § 12132.
[112] Id. at § 12131(1).
[113] See the subsection in this toolkit titled First Element: Qualified Individual with a Disability, infra.
[114] See, e.g., U.S. Dept. of Justice, Operator of 21 Massachusetts Skilled Nursing Facilities Agrees to Resolve Allegations of Disability Discrimination (Sep. 8, 2022) at https://www.justice.gov/usao-ma/pr/operator-21-massachusetts-skilled-nursing-facilities-agrees-resolve-allegations.
[115] 42 U.S.C. § 12101(b)(1).
[116] 42 U.S.C. § 12132.
[117] 28 C.F.R. § 35.130(b)(7).
[118] 42 U.S.C. §12182(a).
[119] 42 U.S.C. §12181(7)(F).
[120] 28 C.F.R. § 36.104.
[121] See, e.g., Equal Emp. Opportunity Comm'n v. Hussey Copper Ltd., 696 F. Supp. 2d 505, 516 (W.D. Pa. 2010) (citing Buskirk v. Apollo metals, 307 F.3d 160, 166 (3d Cir. 2002); Equal Emp. Opportunity Comm'n v. Mod. Grp., Ltd., No. 1:21-CV-451, 2024 WL 1288634, at *13 (E.D. Tex. Mar. 25, 2024) (stating that the Title I elements are (1) that the plaintiff is disabled; (2) that the plaintiff is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) that the plaintiff suffered an adverse employment action as a result of discrimination).
[122] Happel v. Bishop, No. 1:23-CV-13-SPB-RAL, 2024 WL 1508561, at *4 (W.D. Pa. Feb. 22, 2024), report and recommendation adopted, No. CV 23-13, 2024 WL 1003902 (W.D. Pa. Mar. 8, 2024) (citing Bowers v. National Collegiate Athletic Association, 475 F.3d 524, 533 c. 32 (3d Cir. 2007) (stating that the Title II elements are (1) that the plaintiff is a qualified individual; (2) with a disability; and (3) that the plaintiff was denied the opportunity to participate in or benefit from the services, programs, or activities of a public entity, or was otherwise subject to discrimination by that entity, by reason of the plaintiff’s disability).
[123] See, e.g., Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1067 (E.D. Cal. 2006) (citing 42 U.S.C. § 12182(b)(2)(A)(iv)) (stating that the Title III elements are (1) that the plaintiff has a disability; (2) that the defendants’ facility is a place of public accommodation; and (3) that the plaintiff was denied full and equal treatment because of the plaintiff’s disability.”).
[124] See, e.g., Reed v. Columbia St. Mary's Hosp., 915 F.3d 473, 484 (7th Cir. 2019) (the four elements of a § 504 claim are “(1) the plaintiff must be a handicapped individual as defined by the Act; (2) the plaintiff must be “otherwise qualified” for participation in the program; (3) the program must receive federal financial assistance; and (4) the plaintiff must have been “denied the benefits of the program solely because of his handicap.”).
[125] Furgess v. Pa. Dep't of Corr., 933 F.3d 285, 288–89 (3d Cir. 2019) (“[T]he Supreme Court has stated that a prison's refusal to accommodate inmates’ disabilities ‘in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs’ constitutes a denial of the benefits of a prison’s services, programs, or activities.”).
[126] Dep’t of Just., Civ. Rights Div., The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery (2022), https://archive.ada.gov/opioid_guidance.pdf.
[127] 42 U.S.C. § 12102(1).
[128] See, e.g., Taylor v. Wexford Health Sources, Inc., No. 2:23-CV-00475, 2024 WL 2978782, at *13 (S.D.W. Va. June 13, 2024) (“There is no dispute that Mr. Taylor suffers from OUD or that OUD constitutes a disability.”); M.C. v. Jefferson Cnty., New York, No. 6:22-CV-190, 2022 WL 1541462, at *4 (N.D.N.Y. May 16, 2022) (“Plaintiffs’ evidence establishes that OUD is a chronic brain disease and that opioid withdrawal has been recognized as an “objectively” serious medical condition by other courts in this Circuit. Plaintiffs have further established that defendants are on ample notice that forcibly withdrawing them from medically necessary treatment for OUD; i.e., MOUD, will expose them to the serious harms of withdrawal and the danger of relapse.”); Strickland v. Delaware Cnty., No. CV 21-4141, 2022 WL 1157485, at *3 (E.D. Pa. Apr. 19, 2022) (“There is little dispute between the parties at this stage that, based on the facts alleged, Strickland is a qualified individual with a disability in the form of his OUD.”); Smith v. Aroostook Cnty., 376 F. Supp. 3d 146, 159 (D. Me.), affd, 922 F.3d 41 (1st Cir. 2019) (“Here, the Defendants do not dispute that they are public entities or that the Plaintiff is a qualified individual with a disability.”).
[129] 28 C.F.R. §§ 35.108(b)(2), 36.105(b)(2). Regulations implementing Title I of the ADA define the term
[130] 42 U.S.C. § 12102; 28 C.F.R. §§ 35.108(c)(1) (listing examples of major life activities, which include the operation of major bodily functions), 36.105(c)(1) (same). See also Dep’t of Just., Civ. Rights Div., The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery (2022), https://archive.ada.gov/opioid_guidance.pdf (DOJ guidance listing the same requirements).
[131] Equal Emp. Opportunity Comm'n v. Mod. Grp., Ltd., No. 1:21-CV-451, 2024 WL 1288634, at *17 (E.D. Tex. Mar. 25, 2024) (internal quotation marks omitted) (citing 29 C.F.R. § 1630.2(j)(1)(i)).
[132] Dep’t of Just., Civ. Rights Div., supra note 130 at *2 (2022) (citing 28 C.F.R. §§ 35.108(d)(1)(viii), 36.105(d)(1)(viii)). See also 42 U.S.C. § 12102(4)(D) (that ADA’s instruction that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”).
[133] Id.
[134] Dep’t of Just., Civ. Rights Div., supra at note 130 at *3 (citing 42 U.S.C. § 12210(a); 28 C.F.R. §§ 35.131(a)(1), 36.209(a)(1)).
[135] Id.
[136] Id. at *2 (citing 42 U.S.C. § 12210(d); 28 C.F.R. §§ 35.104, 36.104).
[137] Id.
[138] 28 C.F.R. § 35.131(b)(1) (“A public entity shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual's current illegal use of drugs, if the individual is otherwise entitled to such services.”); 29 U.S.C.A. §705(20)(C)(iii) (“Notwithstanding clause (i), for purposes of programs and activities providing health services and services provided under subchapters I, II, and III, an individual shall not be excluded from the benefits of such programs or activities on the basis of his or her current illegal use of drugs if he or she is otherwise entitled to such services.”).
[139] 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104; see also 45 C.F.R. § 84.3(k)(4) (same provision for RA).
[140] Toney v. Goord, 2006 WL 24966859, at *3 (N.D.N.Y. Aug. 28, 2006); Kula v. Malani, 539 F. Supp. 2d 1263, 1268 (D. Hi. 2008).
[141] See Raines v. State, 983 F. Supp. 1362, 1373 (N.D. Fla. 1997).
[142] Pennsylvania Dep’t of Corrections v. Yesky, 524 U.S. 206 (1999).
[143] Start, Inc. v. Baltimore Cnty., Md., et al., 295 F. Supp. 2d 569, 577-78 (D. Md. 2003) (quoting Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995)).
[144] New Directions Treatment Serv. v. City of Reading, 490 F.3d 293, 305 (3d Cir. 2007); see also Start, Inc., 295 F. Supp. 2d at 578 (quoting Montalvo v. Radcliffe, 167 F.3d 873, 876-77 (4th Cir. 1999)).
[145] New Directions Treatment Serv., 490 F.3d. at 306. The Department of Justice regulations implementing Title II of the ADA explain that “in determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.” 28 C.F.R. § 35.139(b).
[146] Start, Inc., 295 F. Supp. 2d at 578 (quoting Montalvo v. Radcliffe, 167 F.3d 873, 876-77 (4th Cir. 1999)) (internal quotations omitted).
[147] Id. In Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, for example, the Ninth Circuit held that the ADA and the Rehabilitation Act apply to zoning restrictions targeting substance use treatment facilities because “zoning is a normal function of a government entity.” 179 F.3d 725, 735 (9th Cir. 1999).The Ninth Circuit then struck down an emergency moratorium prohibiting the operation of methadone clinics within 500 feet of residential areas in the City of Antioch for being facially discriminatory on the basis of the plaintiff’s disability – drug addiction. Id. The Ninth Circuit noted that Antioch might defend the ordinance under the “significant risk” test by showing (1) the methadone clinic “poses a direct threat to the health or safety of others” and (2) that Antioch is addressing this evident risk through a reasonable zoning modification. Id. The court stressed, however, that to satisfy the “significant risk” or “direct threat test” there must be evidence of a real and significant risk and that any such zoning restrictions “may not be based on generalizations or stereotypes about the effects of a particular disability.”[147] Id. This is especially so in the context of zoning related to addiction treatment facilities, the Ninth Circuit warned, explaining that “‘[f]ew aspects of a handicap give rise to the same level of public fear and misapprehension,’ as the challenges facing recovering drug addicts.” Id. Likewise, in MX Group, Inc. v. City of Covington, the Sixth Circuit invalidated a Covington ordinance limiting the number of substance use disorder treatment clinics to one facility for every 20,000 persons in the city. The Sixth Circuit held that “the blanket prohibition of all methadone clinics from the entire city was discriminatory on its face” and thus violated the ADA and RA.” 293 F.3d 326, 345 (6th Cir. 2002). The Sixth Circuit emphasized that the zoning ordinance was motivated by prejudice because it was based on fears and stereotypes, not concrete evidence of a direct threat to others. Id. at 342 (“the reason the city denied Plaintiff the zoning permit was because the city feared that Plaintiff's clients would continue to abuse drugs, continue in their drug activity, and attract more drug activity to the city. In other words, based on fear and stereotypes”)(citing Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th Cir. 2001)).
[148] Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir. 2003).
[149] Basta v. Novant Health Inc., 56 F.4th 307, 316 (4th Cir. 2022); Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 (11th Cir. 2009) (“Because the same standards govern discrimination claims under the Rehabilitation Act and the ADA, we discuss those claims together and rely on cases construing those statutes interchangeably.”); Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (“The ADA has no federal funding requirement, but it is otherwise similar in substance to the Rehabilitation Act, and cases interpreting either are applicable and interchangeable.” The statute itself states that “[t]he remedies, procedures, and rights” under § 504 are also available under Title II. 42 U.S.C. § 12133”) (internal citation omitted).
[150] See, e.g., Nall v. BNSF Ry. Co., 917 F.3d 335, 341 (5th Cir. 2019) (discussing this element as applied in the Fifth Circuit).
[151] Breaux v. Bollinger Shipyards, LLC, No. CV 16-2331, 2018 WL 3329059, at *14 (E.D. La. July 5, 2018).
[152] Breaux v. Bollinger Shipyards, LLC, No. CV 16-2331, 2018 WL 3329059, at *14 (E.D. La. July 5, 2018).
[153] Taylor v. Wexford Health Sources, Inc., No. 2:23-CV-00475, 2024 WL 2978782, at *13 (S.D.W. Va. June 13, 2024) ("DCR further argues that Mr. Taylor was not protected by the ADA because he was an active user of illegal drugs. 42 U.S.C. § 12210(a) provides that ‘[f]or purposes of this chapter, the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.’ As the Plaintiff points out, § 12210(c) provides that ‘notwithstanding subsection (a) and section 12211(b)(3) of this title, an individual shall not be denied health services, or services provided in connection with drug rehabilitation, on the basis of the current illegal use of drugs if the individual is otherwise entitled to such services.’ There is little evidence that the “covered entity” acted to deny Mr. Taylor access to MOUD “on the basis of” his illegal drug use—and it would be entirely illogical to refuse to treat opioid use disorder in patients who use opioids. Further, § 12210(c) expressly provides that health services and drug rehabilitation services, which would include the MOUD Mr. Taylor sought, cannot be denied based on current illegal drug use. Thus, the Court must reject DCR's argument that it is entitled to summary judgment on the basis that Mr. Taylor is excluded from ADA protection because of his illegal drug use.").
[154] Id.
[155] Id.
[156] See, e.g., Tassinari v. Salvation Army Nat'l Corp., No. 1:21-cv-10806-LTS, Doc. 231 (D. Mass. May 31, 2024) (plaintiffs’ motion for class certification)).
[157] Fed. R. Civ. P. 23(b)(2).
[158] Jefferson Cnty., New York, 2022 WL 1541462, at *3 (motions from this case are available in the case index, posted at the end of this toolkit).
[159] Roe v. Dep’t of Defense, 947 F.3d 207, 232 (4th Cir. 2020).
[160] In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 18 (1st Cir. 2008) (citing Fed. R. Civ. P.. 23(b)(3) (quotation marks removed).
[161] Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).
[162] Tyson Foods v. Bouapkakeo, 577 U.S. 442, 453 (2016).
[163] Maziarz v. Hous. Auth. Of the Town of Vernon, 281 F.R.D. 71, 84 (D. Conn. 2012); United States v. City of N.Y., 276 F.R.D. 22, 49 (E.D.N.Y. 2011).
[164] Tyson Foods, 577 U.S. at 453.
[165] See, e.g., Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295-99 (1st Cir. 2000) (where the need for individualized statute-of-limitations determinations did not defeat predominance).
[166] See, e.g., Davoll v. Webb, 194 F.3d 1116, 1148 (10th Cir. 1999) (“Teamsters sets forth a logical and efficient framework for allocating burdens of proof in pattern and practice employment discrimination suits, and we approve of the district court's use of that framework in this case.”).
[167] International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360 (1977) (henceforth, “Teamsters”).
[168] Id. at 361.
[169] Id. at 361-62.
[170] 29 U.S.C. § 794a.
[171] 42 U.S.C. § 12205.
[172] No Barriers, Inc. v. Brinker Chili's Texas, Inc., 262 F.3d 496, 498 (5th Cir. 2001) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)) (cleaned up).
[173] Smith v. Fitzpatrick, No. 1:18-CV-00288-NT, 2019 WL 1387682, at *1 (D. Me. Mar. 27, 2019) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 603 (2001).
[174] Id. (citing Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 8-9 (1st Cir. 2011)).
[175] Id. (citing Buckhannon, 532 U.S. at 605; Hutchinson, 636 F.3d at 9).
[176] Hutchinson, 636 F.3d at 9-10 (quoting Aronov v. Napolitano, 562 F.3d 84, 90 (1st Cir. 2009) (en banc)).
[177] 42 U.S.C. § 12187.
[178] See Reed v. Columbia St. Mary's Hosp., 915 F.3d 473, 477 (7th Cir. 2019) (citing Fed. R. Civ. P. 8(c); Castro v. Chicago Housing Authority, 360 F.3d 721, 735 (7th Cir. 2004)) (holding that the affirmative defense of Title III religious exemption must be raised in the answer to the complaint).
[179] Divine v. Volunteers of America of Illinois, 319 F.Supp.3d 994, 1004 (N.D. Ill. 2018) (internal citations omitted).
[180] Katz v. City Metal Co., 87 F.3d 26, 31 n.4 (1st Cir. 1996) (Section 504 “is interpreted substantially identically to the ADA”); Basta v. Novant Health Inc., 56 F.4th 307, 316 (4th Cir. 2022); Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 (11th Cir. 2009) (“Because the same standards govern discrimination claims under the Rehabilitation Act and the ADA, we discuss those claims together and rely on cases construing those statutes interchangeably.”); Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (“The ADA has no federal funding requirement, but it is otherwise similar in substance to the Rehabilitation Act, and cases interpreting either are applicable and interchangeable.” The statute itself states that “[t]he remedies, procedures, and rights” under § 504 are also available under Title II. 42 U.S.C. § 12133”) (internal citation omitted).
[181] 28 C.F.R. § 42.504.
[182] Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562, 1570 (2022) (citation omitted).
[183] Cummings, 142 S.Ct. at 1570 (citations committed).
[184] See, e.g., Grove City College v. Bell, 465 U.S. 555, 575 (1984), superseded by statute on other grounds, N.C.A.A. v. Smith, 525 U.S. 459, 466 n.4 (1999) (Supreme Court rejecting a First Amendment challenge by a private Christian college to Title IX’s requirement that recipients of federal funding not discriminate based on sex).
[185] Grove City College, 465 U.S. at 575.
[186] Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (citation committed); see Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n.5 (1968) (argument that Title II’s prohibition on racial discrimination in public accommodation violated free exercise was “patently frivolous”); Salvation Army v. Dep’t of Cmty. Affs. Of State of N.J., 919 F.2d 183, 196 (3d Cir. 1990) (rejecting free exercise challenge to application of housing law to a rehabilitation center).
[187] Tassinari et al. v. The Salvation Army, a New York Corporation, No. 1:21-cv-10806-LTS, Doc. 154-1 (D. Mass. May 8, 2023). A link to the full brief can be found in the case index at the end of this toolkit.
[188] See, e.g., Cunningham v. Potter, No. CV 09-10815-RWZ, 2009 WL 10694441, at *1 (D. Mass. June 18, 2009).
[189] See, e.g., Tobin v. Liberty Mut. Ins. Co, 553 F.3d 121, 130 (1st Cir. 2009).
[190] Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
[191] Tassinari v. Salvation Army Nat'l Corp., 610 F. Supp. 3d 343, 359 (D. Mass. 2022) (citing Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 33 (1st Cir. 2009).
[192] Rivera–Rodriguez v. Frito Lay Snacks Caribbean, a Div. Of Pepsico Puerto Rico, Inc., 265 F.3d 15, 21 (1st Cir. 2001) .
[193] Nat’l R.R. Passenger Corp., 536 U.S. at 113.
[194] Muñiz– Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994) (quoting Johnson v. General Electric, 840 F.2d 132, 137 (1st Cir. 1988)) (internal quotation marks omitted).
[195] Tassinari v. Salvation Army Nat'l Corp., 610 F. Supp. 3d 343, 359 (D. Mass. 2022) (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 184 (1st Cir. 1989)).
[196] 42 U.S.C. § 3604(f)(2).
[197] 42 U.S.C. § 3604(f)(3)(B).
[198] Astralis Condo. Ass’n. v. Sec’y, U.S. Dep’t of Hous. & Urb. Dev., 620 F.3d 62, 66 (1st Cir. 2010); Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 n.4 (2d Cir. 2003).
[199] Gamble v. City of Escondido, 104 F.3d 300, 304-305 (9th Cir. 1997).
[200] Arizona Recovery Hous. Ass'n v. Arizona Dep't of Health Servs., 462 F. Supp. 3d 990, 1001 (D. Ariz. 2020)
[201] Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 502 (9th Cir. 2016).
[202] McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
[203] Arizona Recovery Hous. Ass’n, 462 F. Supp. 3d at 1001 (citing Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013); Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266 (1977).
[204] Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1048 (9th Cir. 2007).
[205] Arizona Recovery Hous. Ass’n, 462 F. Supp. 3d at 1002 (citing Cmty. House, Inc., 490 F.3d at 1049).
[206] Id.
[207] Ave. 6E Invs., LLC, 818 F.3d at 502-03.
[208] Pfaff v. HUD, 88 F.3d 739, 745 (9th Cir. 1996).
[209] Budnick v. Town of Carefree, 518 F.3d 1109, 1118 (9th Cir. 2008).
[210] Gamble, 104 F.3d at 306.
[211] Budnick, 518 F.3d at 1118 (quoting Affordable Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1194 (9th Cir. 2006)).
[212] Id.
[213] See Tassinari v. Salvation Army Nat'l Corp., 610 F. Supp., at 358.
[214] Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 717 F. Supp. 2d 1101, 1109–10 (D. Idaho 2010), aff'd on other grounds, 657 F.3d 988 (9th Cir. 2011) (quoting Lakeside Resort Enterps. v. Bd. of Supervisors of Palmyra Township, 455 F.3d 154, 158 (3d Cir. 2006)).
[215] 42 U.S.C. § 3607(a) (“Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin.”)
[216] Intermountain Fair Hous. Counsil v. Boise Rescue Mission Ministries, 717 F.Supp. 2d 1101, 1114 (D. Idaho 2010), aff’d on other grounds, 657 F.3d 988 (9th Cir. 2011) (quoting 42 U.S.C. § 3607(a)).
[217] 42 U.S.C. § 3613(a)(1)(A).
[218] See Phillips v. Fed. Bureau of Prisons, 271 F.Supp.2d 97 (D.C. Cir. 2003) (noting that a halfway house was an independent contractor for the BOP and, therefore, Bivens rather than the Federal Tort Claims Act (“FTCA”) applied to a plaintiff’s constitutional claims. For an overview of the differences between a Bivens claim and an FTCA claim (as well as a detailed overview of Bivens litigation), please see the following useful toolkit from the National Immigration Litigation Alliance (NILA) and American Immigration Counsel: https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/bivens_basics_an_introductory_guide_for_immigration_attorneys_0.pdf
[219] The exception to this rule is for emergency rules under EMTALA.
[220] See, e.g., St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995).
[221] See, e.g., Diggs v. Arizona Cardiologists, Ltd., 198 Ariz. 198, 8 P.3d 386 (2000).
[222] See, e.g., Reynolds v. Decatur Memorial Hosp., 277 Ill. App. 3d 80, 214 Ill. Dec. 44, 49, 660 N.E.2d 235, 240 (1996).
[223] See, e.g., Lection v. Dyll, 65 S.W.3d 696 (Tex. App. 2001) (holding that the defendant, an on-call neurologist consulting on the case, had formed a physician-patient relationship. The relationship was formed under the hospital’s on-call policy, which stated that he would treat all persons who came to the hospital’s emergency room for neurological services, even though the defendant neurologist never spoke to or met with the patient.).
[224] See Hand v. Tavera, 864 S.W.2d 678 (Ct. App. Texas 1993) (reversing a summary judgment grant for the defendant physician who sent the plaintiff home and recommended outpatient treatment. The court reasoned that the plaintiff and his insurer had a contract, and the insurer and the physician had a contract, and therefore there was a third party beneficiary and a duty that was owed).
[225] Weiss v. Rojanasathit, 975 S.W.2d 113, 119–20 (Mo. 1998).
[226] See, e.g., Newman v. Sonnenberg, 81 P.3d 808 (Utah App. 2003) (finding that there was no physician-patient relationship when the defendant dentist refused to commence a root canal after examining the plaintiff and administering local anesthetic, since the treatment of the actual root canal had yet to begin); c.f. Lyons v. Grether, 218 Va. 630, 634, 239 S.E.2d 103, 106 (1977) (holding that there was a physician-patient relationship since the defendant OBGYN had agreed to treat a patient for a specific issue at a certain time).
[227] Lyons v. Grether, 218 Va. 630, 634, 239 S.E.2d 103, 106 (1977).
[228] See, e.g., Chulla v. DiStefano, 242 A.D.2d 657 (1997) (“Dr. Witt merely supervised Dr. DiStefano when she inserted the Norplant device in Catherine Chulla's left arm at the fertility center. Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient.”) (internal quotation marks omitted).
[229] See, e.g., Collins v. Al-Shami, 851 F.3d 727, 734 (7th Cir. 2017) (applying Indiana law).
[230] Edwards v. Tardif, 240 Conn. 610, 618, 692 A.2d 1266, 1270 (1997).
[231] See, e.g., Schuster v. Altenberg, 424 N.W.2d 159, 162 (Wis. 1988) (“We can conceive of no reason why a psychiatrist, as a specialist in the practice of medicine, should not be compelled, as are all other practitioners, to meet the accepted standard of care established by other practitioners in the same class.”).
[232] Smits as Tr. for Short v. Park Nicollet Health Servs., 979 N.W.2d 436, 448 (Minn. 2022).
[233] Id.
[234] Lovelace v. Urbano, 37 Va. Cir. 114 (1995).
[235] O'Sullivan v. Presbyterian Hosp. in City of New York at Columbia Presbyterian Med. Ctr., 217 A.D.2d 98, 101 (1995).
[236] Id. at 100 (citing Topel v. Long Island Jewish Med. Ctr., 55 N.Y.2d 682, 684 (1981)) (internal quotation marks omitted).
[237] Id. at 103 (citing Snow v. State, 98 A.D.2d 442, 447 (1983), aff'd, 64 N.Y.2d 745, 475 (1984)) (internal quotation marks omitted).
[238] Chulla, 242 A.D.2d at 657-58.
[239] Scott v. SSM Healthcare St. Louis, 70 S.W.3d 560, 568 (Mo. Ct. App. 2002).
[240] Restatement (Second) of Agency § 220(2)(a).
[241] See, e.g., Burless v. W. Virginia Univ. Hosps., Inc., 215 W. Va. 765, 772 (2004).
[242] Ballard v. Advoc. Health & Hosps. Corps., No. 97 C 6104, 1999 WL 498702, at *3 (N.D. Ill. July 7, 1999).
[243] Darling v. Charleston Cmty. Mem'l Hosp., 33 Ill. 2d 326, 331–32, 211 N.E.2d 253, 257 (1965).
[244] Thompson v. Nason Hosp., 527 Pa. 330, 341, 591 A.2d 703, 708 (1991).
[245] See Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 (Pa. 2012) (nursing home and its management company are subject to the corporate negligence doctrine in the case of a resident who died as a result of malnutrition and dehydration).
[246] Shannon v. McNulty, 718 A.2d 828, 835–36 (Pa. Super. Ct. 1998) (holding an HMO liable under a theory of corporate negligence).
[247] Valerie Gutmann Koch, Eliminating Liability for Lack of Informed Consent to Medical Treatment, 53 U. Rich. L. Rev. 1211 (2019).
[248] Edward L. Raab, The Parameters of Informed Consent, Trans. Am. Opthalmol. Soc. (2004) (“The elements of the claim are (1) the physician did not present the risks and benefits of the proposed treatment and of alternative treatments; (2) with full information, the patient would have declined the treatment; and (3) the treatment, even though appropriate and carried out skillfully, was a substantial factor causing the patient’s injuries.”) (citing Thomas A. Moore, Informed Consent, part 2, NYLJ (1995)) (emphasis in original).
[249] Valerie Gutmann Koch, A Private Right of Action for Informed Consent in Research, 45 Seton Hall L. Rev. 173, 180 (2015).
[250] See, e.g., White v. Leimbach, 959 N.E.2d 1033, 1040 (Ohio 2011); Acuna v. Turkish, 930 A.2d 416, 425 (N.J. 2007) (“The standard focuses on what a reasonable patient needs to know—that is, what a reasonable patient would likely find significant given the risks—to make an informed decision in foregoing or assenting to a medical procedure.”) (emphasis in original); Logan v. Greenwich Hospital Assn., 465 A.2d 294 (Conn. 1983).
[251] Welton v. Ambrose, 814 N.E.2d 970, 978 (Ill. App. 2004). See also Foote v. Rajadhyax, 268 A.D.2d 745, 745 (N.Y. 2000).
[252] Roybal v. Bell, 778 P.2d 108, 111 (Wyo. 1989).
[253] See, e.g., Unthank v. United States, 732 F.2d 1517, 1521 (10th Cir. 1984) (“We believe that encompassed in the duty to inform a patient of all material information, substantial and significant risks is the duty to inform not only of risks that might occur from the particular treatment in question, but also, any alternative treatments and the risk of no treatment at all.”); Marino v. Ballestas, 749 F.2d 162, 167–168 (3d Cir. 1984) (“A complete understanding of the consequences of foregoing the operation would seem necessarily to include a consideration of the alternative treatment for the patient's disease or condition.”); Crain v. Allison, 443 A.2d 558, 561-62 (D.C. 1982) (doctor has a duty to disclose a reasonable amount of information under the circumstances and, at a minimum, must disclose the nature of patient's condition, the nature of the treatment, its risks and benefits, and any alternative treatments).
[254] Knight v. Grossman, 942 F.3d 336, 342 (7th Cir. 2019) (“The right to refuse medical treatment carries with it an implied right to the information necessary to make an informed decision about whether to refuse the treatment. Without crucial information about the risks and benefits of a procedure, the right to refuse would ring hollow.”); Pabon v. Wright, 459 F.3d 241, 249–50 (2d Cir. 2006) (recognizing a constitutional entitlement to medical information where prisoner argued he was not informed of serious side effects of liver biopsy and medication therapy for Hepatitis C); Benson v. Terhune, 304 F.3d 874, 884 (9th Cir. 2002); White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990).
[255] See “Deliberate Indifference” subsection in the “Eighth and Fourteenth Amendment” causes of action outline.
[256] Knight, 942 F.3d at 344.
[257] Id.
[258] See, e.g., Urbach v. United States, 869 F.2d. 829 (5th Cir. 1989).
[259] Phillips v. Fed. Bureau of Prisons, 271 F. Supp. 2d 97, 102 (D.D.C. 2003).
[260] Williams v. Kintock Grp., Inc., No. CV 20-1915, 2022 WL 3042767, at *6 (E.D. Pa. Aug. 2, 2022).
[261] Id.
[262] See, e.g., Bailor v. Salvation Army, 51 F.3d 678, 683 (7th Cir. 1995) (finding that the duty owed to a halfway house resident is attenuated when the facility lacks direct control over the resident).
[263] Wormley v. United States, 601 F. Supp. 2d 27, 32 (D.D.C. 2009).
[264] Wormley v. United States, 601 F. Supp. 2d 27, 44–45 (D.D.C. 2009).
[265] Massachusetts Consumer Protection Act, Massachusetts General Laws, Chapter 93A.
[266] Thistlethwaite v. Elements Behavioral Health, Inc., 2015 WL 11181561 (D.N.M. Mar. 23, 2015).
[267] Ingrid A. Binswanger et al., Release From Prison — A High Risk of Death for Former Inmates, 365(5) New Eng. J. Med. 157 (January 2007).
[268] The White House Executive Office of the President, Office of National Drug Control Policy, 2022 National Drug Control Strategy, https://www.whitehouse.gov/wp-content/uploads/2022/04/National-Drug-Control-2022Strategy.pdf (“Although MOUD when administered properly by trained professionals has a strong evidence base and saves lives, as of August 2021, only about 12 percent (602 out of 5,000) of correctional facilities offer any form of MOUD. Few facilities maintain treatment for individuals receiving MOUD at arrest and even fewer initiate MOUD for untreated individuals.”); Sarah Larney et al., Opioid Substitution Therapy as a Strategy to Reduce Deaths in Prison: Retrospective Cohort Study, 4(4) BMJ Open 1 (April 2014). This study also found that incarcerated people receiving methadone or buprenorphine were 94% less likely to die during their first four weeks of incarceration than those not receiving this treatment.
[269] Estelle v. Gamble, 429 U.S. 97, 103 (1976).
[270] Id.
[271] Id.
[272] Estelle v. Gamble, 429 U.S. 97, 103 (1976); Farmer v. Brennan, 511 U.S. 825, 828 (1994).
[273] Sawyers v. Norton, 962 F.3d 1270, 1282 (10th Cir. 2020) (“The constitutional protection against deliberate indifference to a pretrial detainee's serious medical condition springs from the Fourteenth Amendment's Due Process Clause. In evaluating such Fourteenth Amendment claims, we apply an analysis identical to that applied in Eighth Amendment cases.” Id. (quotations omitted); Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019).
[274] Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
[275] Farmer v. Brennan, 511 U.S. at 827; see Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)(discussing how the deliberate indifference standard may be met “[w]here prison authorities deny reasonable requests for medical treatment ... and such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury,’ ” or “where ‘knowledge of the need for medical care [is accompanied by the] ... intentional refusal to provide that care’ ” (citations omitted)).
[276] Farmer, 511 U.S. at 842 (“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”) (internal quotations and citations omitted).
[277] 42 U.S.C. § 1997e(a)
[278] Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (“Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.”).
[279] 42 U.S.C. § 1997e(a).
[280] 42 U.S.C. § 1997e(h).
[281] Roles v. Maddox, 439 F.3d 1016, 1017-18 (9th Cir. 2006); Milledge v. McCall, 43 F. App’x 196, 198 (5th Cir. 2002).
[282] Jackson v. Johnson, 475 F.3d 261, 267 (5th Cir. 2007) (holding that plaintiff housed in a halfway house was a “prisoner” under section 1997e(h), even those the purpose of the confinement was non-punitive, because “his confinement [was] as a result of his criminal violation”); Witzke v. Femal, 376 F.3d 744, 752 (7th Cir. 2004) (holding that the “restrictions imposed” by a drug treatment program “sufficiently restricted” the plaintiff to render him a “prisoner” under section 1997e(h)).
[283] Jackson, 475 F.3d at 265; Harris v. Garner, 216 F.3d 970, 979 (11th Cir. 2000); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998). At least one court has also found that being on home confinement or house arrest does not render a person a “prisoner” either. Simpson v. Davenport, 2022 WL 125389, at *2 (W.D. Pa. Jan. 13, 2022).
[284] Merryfield v. Jordan, 584 F.3d 923, 924 (10th Cir. 2009); Michau v. Charleston Cnty., 434 F.3d 725, 727 (4th United States v. Sec’y, Fla. Dep’t of CorrCir. 2006); Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002); Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001); Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000). If the plaintiff is being held civilly while charges are still pending, however, the PLRA likely applies. Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004) (individual held under Illinois’s Sexually Dangerous Persons Act is a “prisoner” because the act allows for commitment while criminal charges are pending but held in abeyance, rendering the individual a pretrial detainee); Ardaneh v. U.S. Gov’t, 2020 WL 7316123, at *3 (D.D.C. Dec. 11, 2020) (individual committed to mental health hospital after being found mentally incompetent to stand trial is a “prisoner”); Webb v. Nebraska, 2019 WL 5684393, at *1 (D. Nev. Nov. 1, 2019) (same).
[285] Danglar v. Dep’t of Corr., 50 F.4th 54, 59-60 (11th Cir. 2022); Shuhaiber v. Ill. Dep’t of Corr., 980 F.3d 1167, 1170 (7th Cir. 2020); Agyeman v. INS, 296 F.3d 871, 885-86 (9th Cir. 2002); LaFontant v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998); Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997). These courts reasoned that section 1997e(h) defines prisoner as an individual confined because of alleged or adjudicated “violations of criminal law” and thus it does not include those held in immigration detention which is imposed for violations of immigration, not criminal, law.
[286] Saddozai v. Davis, 35 F.4th 705, 708 (9th Cir. 2022) (citing Jackson v. Fong, 870 F.3d 928, 937 (9th Cir. 2017)); Garrett v. Wexford Health, 938 F.3d 69, 84 (3d Cir. 2019). The Supreme Court recently suggested in dicta that the operative complaint rule was appropriate. Ramirez v. Collier, 595 U.S. 411, 423 (2022) (“The original defect was arguably cured by those subsequent filings.”). But there is good reason to be skeptical that the Supreme Court would embrace this rule if it was squarely presented, given the Court’s recent decisions on other parts of the PLRA. See, e.g., Murphy v. Smith, 138 S. Ct. 784, 789 (2018); Ross v. Blake, 578 U.S. 632, 639-40 (2016); cf. Wexford Health v. Garrett, 140 S. Ct. 1611-12 (2020) (Thomas, J., dissenting).
[287] Bargher v. White, 928 F.3d 439, 448 (5th Cir. 2019) (“Accordingly, although his present action must be dismissed, Bargher would not be bound by the PLRA’s exhaustion requirements if he were to immediately refile.”); Maya v. Sauk Cnty., 2023 WL 3686613, at *2 (W.D. Wis. May 26, 2023) (“[N]umerous courts have permitted PLRA plaintiffs to refile their cases post-incarceration to avoid the PLRA’s limitations.”); Epps v. Dart, 2022 WL 1316547, at *6-7 (N.D. Ill. May 3, 2022); Paulino v. Taylor, 320 F.R.D. 107, 112 (S.D.N.Y. 2017); Riggs v. Sonney, 2017 WL 2936697, at *3 (N.D. Ill. July 10, 2017); Aultman v. Cmty. Educ. Ctrs., Inc., 2014 WL 12659595, at *1 (E.D. Pa. Feb. 18, 2014). The request to dismiss must be brought under Rule 41(a)(2) of the Federal Rules of Civil Procedure.
[288] For example, the State of Utah has two relevant savings statutes. U.C.A. 1953 § 63G-7-403; id. § 78B-2-111. If the underlying statute of limitations has not expired at the time of the dismissal/refiling, then no savings statute is necessary to render the second lawsuit timely.
[289]42 U.S.C. § 1997e(a).
[290] Ross v. Blake, 578 U.S. 632, 637 (2016); Woodford v. Ngo, 548 U.S. 81, 85 (2006); Porter v. Nussle, 534 U.S. 516, 519 (2002).
[291] Ross v. Blake, 578 U.S. 632, 639 (2016).
[292] Woodford v. Ngo, 548 U.S. 81, 93 (2006).
[293] Battle v. Ledford, 912 F.3d 708, 720 (4th Cir. 2019); Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 604-05 (3d Cir. 2015); Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir. 2011); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005); Johnson v. Rivera, 272 F.3d 519, 521-22 (7th Cir. 2001); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). But see Soto v. Sweetman, 882 F.3d 865, 875 (9th Cir. 2018) (statute of limitations is tolled only while the prisoner “is actively exhausting his administrative remedies”).
[294] Jones v. Bock, 549 U.S. 199, 216 (2007).
[295] See, e.g., Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008) (“[I]n the ordinary case discovery with respect to the merits should be deferred until the issue of exhaustion is resolved.”); see also Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (exhaustion defenses should be “appropriately decided early in the proceeding”).
[296] See, e.g., 20 Ill. Admin. Code 504.800 et seq. (Illinois’s grievance policy); Colo. Reg. 850-04, “Grievance Procedure,” (available at https://drive.google.com/file/d/1LzVWGmX6SS cxcKV76wZ7MoENHV3P9T-i/view) (last visited June 21, 2024) (Ohio’s grievance policy).
[297] Civil Rights Clearinghouse, Repository: Prison and Jail Grievance Policies: Lessons from a Fifty-State Survey (2015) (available at https://clearinghouse.net/special-project/2/5).
[298] Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) (internal quotation marks and citations omitted).
[299] See Apanovich v. Taft, 2006 WL 2077040, at *4 (S.D. Ohio July 21, 2006) (King, M.J.); Arsberry v. Illinois, 244 F.3d 558, 561-62 (7th Cir. 2001) (concluding that the failure of prisoner plaintiffs to exhaust their administrative remedies did not “dispose of” the claims of the non-prisoner plaintiffs).
[300] Ross v. Blake, 578 U.S. 632, 633, 136 S. Ct. 1850, 1853–54, 195 L. Ed. 2d 117 (2016).
[301] McPherson v. Lamont, 457 F. Supp. 3d 67, 81 (D. Conn. 2020). See also Fenty v. Penzone, No. CV 20-01192-PHX-SPL (JZB) Doc. 351 at *33 (D. Ariz. Mar. 31 2023) (“Absent any written policies or assurances to MCSO inmates that they could file time-sensitive complaints and have these complaints addressed within expedited timeframes, MCSO’s administrative remedies were effectively unavailable to grieve the imminent risk of harm caused by exposure to COVID-19.”).
[302] Jones v. Bock, 549 U.S. 199, 220-21 (2007).
[303] Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
[304] See, e.g., Smith v. Pac. Properties & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004) (citing Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)).
[305] Valle del Sol v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013).
[306] Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 281 (1986).
[307] Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).
[308] Dunn v. Dunn, 219 F. Supp. 3d 1163, 1176 (M.D. Ala. 2016) (citing Alabama Disabilities Advoc. Program v. Wood, 584 F. Supp. 2d 1314, 1316 (M.D. Ala. 2008)).
[309] Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 458 F. Supp. 2d 160, 171 (S.D.N.Y. 2006) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
[310] Bldg. & Const. Trades Council of Buffalo, New York & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 145 (2d Cir. 2006) (the court goes on to note that the association does not even have to “name names” in the complaint to properly allege injury in fact to its members).
[311] Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 458 F. Supp. 2d 160, 172 (S.D.N.Y. 2006) (citing Bldg. & Const. Trades Council, 448 F.3d at 145).
[312] Id.
[313] See Tretter v. Pa. Dep’t of Corr., 558 Fed.Appx. 155, 157-58 (3d Cir. 2014) (administrator of prisoner’s estate); Torres-Rios v. Pereira Castillo, 545 F.Supp.2d 204, 206 (D.P.R. 2007) (Besosa, J.) (administrator of prisoner’s estate); Netters v. Tenn. Dep’t of Corr., 2005 WL 2113587, at *3 n.3 (W.D. Tenn. Aug 30, 2005) (Mays, J.) (guardians of prisoner’s minor next-of-kin); Rivera-Rodriguez v. Pereira-Castillo, 2005 WL 290160, at *6 (D.P.R. Jan 31, 2005) (Delgado-Colon, M.J.) (guardians of minor prisoner).
[314] 18 U.S.C. § 3626(a)-(g).
[315] 18 U.S.C. § 3626(g)(2).
[316] Martin v. Iowa, 752 F.3d 725, 7276 (8th Cir. 2014); Handberry v. Thompson, 436 F.3d 52, 62 (2d Cir. 2006); Witzke v. Femal, 376 F.3d 744, 751 (7th Cir. 2004).
[317] Handberry v. Thompson, 436 F.3d 52, 62 (2d Cir. 2006) (challenges to the adequacy of services provided by detention facilities under the ADA and the Rehab Act fall within the ambit of section 3626); Perez v. Wisc. Dep’t of Corr., 182 F.3d 532, 534 (7th Cir. 1999) (“complaints about medical treatment in prison are complaints about ‘prison conditions’”).
[318] See United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, n.7 (11th Cir. 2015) (section 3626 applies to “any civil proceeding” with respect to prison conditions, even where the government itself is a plaintiff and therefore not a prisoner).
[319] 28 U.S.C. § 1997e(e).
[320] See, e.g., Hoover v. Marks, 993 F.3d 1353, 1358 (11th Cir. 2021).
[321] 42 U.S.C. 1997e(a).
[322] 42 U.S.C. 1997e(d).
[323] Armstrong v. Davis, 318 F.3d 965, 974 (9th Cir. 2003). The ADA’s fee-shifting provision is codified at 42 U.S.C. § 12205, and the Rehabilitation Act’s fee-shifting provision is codified at 29 U.S.C. § 794a. Section 1997e(d) is thus narrower in that it does not apply to non-section 1983 claims, but also broader in that it applies to any type of suit brought by a prisoner, regardless of whether or not the suit has anything to do with prison at all.
[324] Legal Action Center, Cases Involving Discrimination Based on Treatment with Medication for Opioid Use Disorder (MOUD) (Feb. 6, 2024), https://www.lac.org/assets/files/Cases-involving-denial-of-access-to-MOUD.pdf.
[325] U.S. Dept. of Just., Justice Department Secures Agreement from Pennsylvania Jail to Provide Medications for Opioid Use Disorder (Nov. 30, 2023),
https://www.justice.gov/opa/pr/justice-department-secures-agreement-pennsylvania-jail-provide-medications-opioid-use.
[326] U.S. Dept. of Just., U.S. Attorney’s Office Announces Agreement to Ensure Access to Medications for Opioid Use Disorder at Big Sandy Regional Detention Center (Dec. 4, 2023),
https://www.justice.gov/usao-edky/pr/us-attorneys-office-announces-agreement-ensure-access-medications-opioid-use-disorder.
[327] Crews v. Sawyer, No. 19-cv-2541, Doc. 1 at *1-2, 16-18 (D. Kan. 2019).
[328] https://www.aclukansas.org/en/press-releases/kansas-and-missouri-aclu-affiliates-reach-settlement-bureau-prisons-leavenworth.
[329] United States v. Cumberland County, New Jersey, No. 1:23-cv-02655, Doc.2-3 (D. NJ May 17, 2023) (available at https://www.justice.gov/d9/2023-05/cumberlandagreement.pdf).
[330] U.S. Dept. of Justice, Agreement to Resolve the Department of Justice’s Investigation of the Cumberland County Jail (May 17, 2023 filed in Case 1:23-cv-02655 U.S. v. Cumberland County) at https://www.justice.gov/opa/press-release/file/1584086/ (last access on Oct. 10, 2024).
[331] U.S. Dept. of Just. Civil Rights Division & United States Attorney’s Office District of New Jersey, Investigation of the Cumberland County Jail (Jan. 14, 2021), https://www.justice.gov/opa/press-release/file/1354646/download.
[332] DiPierro v. Hurwitz, C.A. No. 1:19-cv-10495, Doc. 1 at *3-4, 23 (D. Mass. June 7, 2019).
[333] DiPierro v. Hurwitz, C.A. No. 1:19-cv-10495, Settlement Agreement at *2 (D. Mass. June 7, 2019) (available at https://www.aclum.org/sites/default/files/20190607_dipierro_settlement.pdf).
[334] Finnigan v. Mendrick, No. 21-CV-341, 2021 WL 736228 (N.D. Ill. Feb. 24, 2021).
[335] Id. at *7.
[336] Id. at *6-7.
[337] Godsey v. Sawyer, No. 19-cv-01498-RSM, 2020 WL 2219291, at *1 (W.D. Wash. May 7, 2020).
[338] Godsey v. Sawyer, No. 19-cv-01498-RSM, Doc. 1 at *21-23 (W.D. Wash. Sep. 18, 2019).
[339] Godsey v. Sawyer, No. 19-cv-01498-RSM, Doc. 21 at *4-10 (W.D. Wash. Nov. 27, 2019)
[340] Kortlever v. Whatcom C’nty, No. 2:18-cv-00823 (JLR) Doc. 1 at *20-21 (W.D. Wash, June 6, 2018) (a collection of case documents are available on the ACLU of Washington’s website: https://www.aclu-wa.org/cases/kortlever-et-al-v-whatcom-county (last accessed Oct. 4, 2024)).
[341] U.S. Dept. of Justice, Memorandum of Agreement Between the United States of America and Lexington-Fayette Urban County Government Division of Community Corrections (2022), https://www.justice.gov/d9/press-releases/attachments/2022/11/08/fully_executed_settlement_agreement_usao-fcdc.pdf.
[342] M.C. v. Jefferson Cnty., New York, No. 6:22-CV-190, 2022 WL 1541462, at *4 (N.D.N.Y. May 16, 2022) (quoting Smith, 376 F. Supp. 3d at 160).
[343] Id.
[344] Id. N.Y. Correct. Law § 626 provides that “[a]fter a medical screening, incarcerated individuals who are determined to suffer from a substance use disorder, for which FDA approved addiction medications exist shall be offered placement in the medication assisted treatment program.”
[345] Id. at *2.
[346] Dep’t. of Just., DJ No. 204-36-241, Settlement Agreement Between the United States and the Massachusetts Parole Board (2021), https://www.justice.gov/d9/case-documents/attachments/2021/12/14/settlement_agreement_-_u.s._v._the_massachusetts_parole_board.pdf.
[347] Id. at *3.
[348] Id. at *3-4.
[349] U.S. Dept. of Justice, U.S. Attorney Rollins Announces Correctional Facilities Statewide to Maintain All Medications for Opioid Use Disorder (Apr. 1, 2022),
https://www.justice.gov/usao-ma/pr/us-attorney-rollins-announces-correctional-facilities-statewide-maintain-all-medications.
[350] P.G. v. Jefferson Cnty., New York, No. 5:21-CV-388, 2021 WL 4059409, at *5 (N.D.N.Y. Sept. 7, 2021).
[351] Id. (quoting Smith, 376 F. Supp. 3d at 159-60) (cleaned up).
[352] Id. (citing Charles v. Orange County, 925 F.3d 73, 87 (2d Cir. 2019); and Alvarado v. Westchester County, 22 F. Supp. 3d 208, 217 (S.D.N.Y. 2014)).
[353] Pesce v. Coppinger, 355 F. Supp. 3d 35, 47 (D. Mass. 2018).
[354] Sclafani v. Mici, C.A. No. 19-12550 (LTS) (Settlement Agreement), at *1-2 (Feb. 27, 2020) (although the official terms of the settlement were not e-filed, the settlement agreement can be found at the following address: https://www.aclum.org/sites/default/files/field_documents/2020.02.27_sclafani_settlement_agreement_signed.pdf).
[355] Id. at *3-4.
[356] Smith v. Aroostook County et al., No. 18-cv-00352-NT (D. Me. 2018).
[357] Smith v. Aroostook Cnty., 376 F. Supp. 3d 146, 159–60 (D. Me. 2019), aff'd, 922 F.3d 41 (1st Cir. 2019).
[358] Smith v. Fitzpatrick, No. 1:18-CV-00288-NT, 2019 WL 1387682, at *1 (D. Me. Mar. 27, 2019)
[359] Id.
[360] Id. at *2.
[361] U.S. Dept. of Just., Justice Department Files Statement of Interest in Case Alleging Pennsylvania Jail Unlawfully Denied Access to Medication to Treat Opioid Use Disorder (Dec. 11, 2023), https://www.justice.gov/opa/pr/justice-department-files-statement-interest-case-alleging-pennsylvania-jail-unlawfully.
[362] Taylor v. Wexford Health Sources, Inc., No. 2:23-CV-00475, 2024 WL 38555, at *5 (S.D.W. Va. Jan. 3, 2024).
[363] United States v. The Unified Judicial System of Pennsylvania, No. 22-cv-00709 (E.D. Penn. Jan. 31, 2024).
[364] Id. at *9.
[365] Id. at *2.
[366] United States v. The Unified Judicial System of Pennsylvania, No. 22-cv-00709 Doc.55-1 at *8 (E.D. Penn. Feb. 1, 2024).
[367] Id.
[368] Id. at *10.
[369] Dep’t. of Just., DJ No. 202-30-56, Settlement Agreement Between the United States of America and Ashland Hospital Corporation D/B/A/ King’s Daughters Medical Center Under the Americans with Disabilities Act (Jan. 25, 2022), https://www.justice.gov/d9/press-releases/attachments/2022/01/27/settlement_agreement_-_fully_executed-_k.d.pdf.
[370] Breaux v. Bollinger Shipyards, LLC, No. CV 16-2331, 2018 WL 3329059, at *1 (E.D. La. July 5, 2018).
[371] Id.
[372] Id. at *2.
[373] Id.
[374] Id. at *15.
[375] United States v. Cumberland County, Tennessee, No. 2:23-cv-00001, Doc. 8 (M.D. Tenn. Jan. 19, 2023).
[376] Id. at *1-2.
[377] Id. at *3-5.
[378] EEOC v. Appalachian Wood Products, Inc., No. 3:18-cv-00198-KRG, Doc. 1 at *3-7 (W.D. Pa. Sep. 27, 2018).
[379] Id. at *1.
[380] EEOC v. Appalachian Wood Products, Inc., No. 3:18-cv-00198-KRG, Doc. 26-1 (W.D. Pa. July 29, 2019)
[381] Id. at *3-7.
[382] EEOC v. Foothills Child Development Center, Inc., No. 6:18-cv—01255-AMQ-KFM, Doc. 1 at *1 (D.S.C. May 7, 2018).
[383] Id. at *4-5.
[384] Id.
[385] Id. at *3.
[386] EEOC v. Foothills Child Development Center, Inc., No. 6:18-cv—01255-AMQ-KFM, Doc. 7-1 at *1 (D.S.C. May 15, 2018).
[387] Id. at *2-5.
[388] Equal Employment Opportunity Comm’n v. Hussey Copper Ltd., 696 F. Supp. 2d 505 (W.D. Pa. 2010).
[389] Id. at 506.
[390] Id. at 516.
[391] Id. at 517.
[392] Id. (citing Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999); and Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999).
[393] Id. at 520.
[394] Equal Emp. Opportunity Comm’n v. Hussey Copper, Inc., No. 8-cv-00809-NBF, Doc. 71 (W.D. Pa. Aug. 10, 2010).
[395] Id. at Docs. 109-111.
[396] Equal Emp. Opportunity Comm'n v. Mod. Grp., Ltd., No. 1:21-CV-451, 2024 WL 1288634, at *1 (E.D. Tex. Mar. 25, 2024).
[397] Id.
[398] Id. at *4-7, 43.
[399] EEOC v. Mod. Grp., Ltd., No. 1:21-CV-451, Doc. 124 (E.D. Tex. May 14, 2024).
[400] Id. at *3-4.
[401] EEOC v. Professional Transportation, Inc., No. 1:20-cv-00745, Doc. 1 at *1-2 (S.D. W.Va. Nov. 12, 2020).
[402] Id. at *4.
[403] Id. at *5.
[404] Id. at *3.
[405] EEOC v. Professional Transportation, Inc., No. 1:20-cv-00745, Doc. 21 at *3-11 (S.D. W. Va. Aug. 5, 2021).
[406] EEOC v. Randstad, US, LP, No. 1:15-cv-03354-RDB, Doc. 1 at *1 (D. Md. Nov. 3, 2015).
[407] Id. at *4.
[408] Id. at *2.
[409] EEOC v. Ranstad, US, LP, No. 1:15-cv-03354-RDB, Doc. 6 at *1 (D. Md. Feb. 3, 2016).
[410] Id. at *3-4.
[411] EEOC v. SoftPro, No. 5:18-cv-00463-D, Doc. 1 at *2-7 (E.D.N.C. Sep. 27, 2018).
[412] EEOC v. SoftPro, No. 5:18-cv-00463-D, Doc. 8-2 at *2 (E.D.N.C. Dec. 10, 2018).
[413] EEOC v. SoftPro, No. 5:18-cv-00463-D, Doc. 24 at *2-4 (E.D.N.C. Aug. 20, 2019).
[414] E-mail from Rebecca B. Bond, Chief, Disability Rights Section Department of Justice, to Caryn N. Szyper, Assistant Section Chief, Administrative and Regulatory Enforcement Litigation, Office of Attorney General Todd Rokita at *2 (Mar. 25, 2022) (available at https://www.justice.gov/opa/press-release/file/1487121/dl).
[415] Id. at *1.
[416] Id.
[417] Id. at *3-4
[418] Id. at *4.
[419] Id. at *4.
[420] Id. at *5.
[421] Id. at *5-6.
[422] Dep’t. of Just., Massachusetts General Hospital Enters Agreement with U.S. Attorney’s Office to Better Ensure Equal Access for Individuals with Disabilities (Aug. 7, 2020), https://www.justice.gov/usao-ma/pr/massachusetts-general-hospital-enters-agreement-us-attorney-s-office-better-ensure-equal.
[423] Dep’t. of Just., DJ No. 202-36-306, Settlement Agreement Between the United States of America and Charlwell Operating, LLC Under the Americans with Disabilities Act (2018), https://www.ada.gov/charlwell_sa.html.
[424] Dep’t. of Just., U.S. Attorney’s Office Settles Disability Discrimination Allegations with Operator of Skilled Nursing Facilities (Sep. 17, 2019), https://www.justice.gov/usao-ma/pr/us-attorney-s-office-settles-disability-discrimination-allegations-operator-skilled.
[425] Dep’t. of Just., U.S. Attorney’s Office Settles Disability Discrimination Allegations with Operator of Skilled Nursing Facilities (Dec. 29, 2020), https://www.justice.gov/usao-ma/pr/us-attorney-s-office-settles-disability-discrimination-allegations-operator-skilled-0.
[426] Dep’t. of Just., DJ No. 202-66-47, Genesis Healthcare’s Designated Nursing Home Facilities (Aug. 4, 2021), https://www.hhs.gov/civil-rights/for-providers/compliance-enforcement/agreements/genesis-healthcares-designated-nursing-home-facilities-agreement/index.html.
[427] Dep’t. of Just., Facilities Denied Admission to Patients Prescribed Opioid Use Disorder Treatment (Sep. 27, 2021), https://www.justice.gov/usao-ma/pr/four-skilled-nursing-facility-entities-agree-resolve-allegations-americans-disabilities.
[428] Dep’t. of Health and Human Services, OCR No. 2019V00349, Voluntary Resolution Agreement Between the United States of America, the United States Department of Health and Human Services, Office for Civil Rights and the Oaks (Dec. 22, 2021), https://public3.pagefreezer.com/content/HHS.gov/30-12-2021T15:27/https://www.hhs.gov/civil-rights/for-providers/compliance-enforcement/agreements/the-oaks-agreement/index.html.
[429] U.S. Dept. of Justice, U.S. Attorney’s Office Settles Disability Discrimination Allegations with the Massachusetts Trial Court Concerning Access to Medications for Opioid Use Disorder (Mar. 24, 2022), https://www.justice.gov/usao-ma/pr/us-attorney-s-office-settles-disability-discrimination-allegations-massachusetts-trial.
[430] Settlement Agreement Between the United States and the Massachusetts Trial Court, https://www.justice.gov/media/1214786/dl?inline.
[431] U.S. Dept. of Justice, Settlement Agreement Between U.S. and Massachusetts Trial Court (Mar. 24, 2022), https://www.justice.gov/d9/press-releases/attachments/2022/03/24/us_v._massachusetts_trial_court_-_settlement_agreement_0.pdf.
[432] Dep’t. of Just., U.S. Attorney's Office Settles Disability Discrimination Case With New England Orthopedic Surgeons (May 20, 2021), https://www.justice.gov/usao-ma/pr/us-attorneys-office-settles-disability-discrimination-case-new-england-orthopedic.
[433] Dep’t. of Health and Human Services, OCR No. 20-359940, Voluntary Resolution Agreement Between the U.S. Department of Health and Human Services Office for Civil Rights (OCR) and the Pennsylvania Department of Human Services (July 5, 2023), https://www.hhs.gov/civil-rights/for-providers/compliance-enforcement/agreements/vra-pennsylvania-department-human-services/index.html.
[434] Pollard v. Drummond Co., Inc., No. 2:12-CV-03948-MHH, 2015 WL 5306084, at *1 (N.D. Ala. Sept. 10, 2015).
[435] Id. at *4-5.
[436] Id at *5.
[437] Id. at *7.
[438] Dep’t. of Just., DJ No. 202-13-342, Settlement Agreement Between the United States of America and Ready to Work, LLC Under the Americans with Disabilities Act (Mar. 17, 2022), https://archive.ada.gov/ready_work_sa.pdf.
[439] Id. at *3-5.
[440] Dep’t. of Just., DJ No. 202-80-64, Settlement Agreement Between the United States of America and Selma Medical Associates, Inc. Under the Americans with Disabilities Act (2019), https://www.ada.gov/selma_medical_sa.html.
[441] Id.
[442] Strickland v. Delaware Cnty., No. CV 21-4141, 2022 WL 1157485, at *4 (E.D. Pa. Apr. 19, 2022) (“The fact that this denial was pursuant to a policy that contains an exception for pregnant people does not prevent it from being discriminatory under federal law. If anything, the alleged pregnancy exception to the methadone policy may support an inference that Defendants were capable of safely making exceptions to the methadone policy but failed to do so for Strickland.”).
[443] Id. at 2022 WL 1157485, at *3 (E.D. Pa. Apr. 19, 2022).
[444] Tassinari v. Salvation Army Nat'l Corp., 610 F. Supp. 3d 343, 349 (D. Mass. 2022).
[445] Id. at 351.
[446] Id. at 353-57.
[447] Id. at 357.
[448] Id. at 359.
[449] Id. at 361.
[450] Id.
[451] Tassinari v. Salvation Army Nat’l Corp., No. 21-cv-10806-LTS Doc. 218 at *2 (D. Mass. Mar. 28, 2024).
[452] United States v. Mohamed Bacchus and Alan Zander, No. 21-cv-3681 (E.D. Pa. 2021).
[453] Id. at Doc. 1 at *5.
[454] United States v. City of Fort Worth, No. 15-cv-00304-O (N.D. Tex. 2015).
[455] United States v. City of Jackson, Mississippi, No. 16-cv-766-HTW-LRA (S.D. Miss. 2016).
[456] United States v. Village of Hinsdale, Illinois, No. 20-cv-06959, Doc. 17 at *6 (N.D. Ill. Mar. 18, 2021).
[457] United States v. Village of Hinsdale, Illinois, No. 20-cv-06959, Doc. 55 (N.D. Ill. Mar. 18, 2021).
[458] Dep’t. of Health and Human Services, OCR No. 18-306552, Voluntary Resolution Agreement Between the U.S. Department of Health and Human Services Office for Civil Rights (OCR) and the West Virginia Department of Health and Human Resources Bureau for Children and Families (Apr. 22, 2020), https://www.hhs.gov/sites/default/files/ocr-agreement-with-wv-dhhr.pdf.
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