Key Moments in NADCP HistoryMAT: LAW & ETHICS FOR

COURT PROFESSIONALS

DOUGLAS B. MARLOWE, J.D., PH.D.

NATIONAL ASSOCIATION OF DRUG COURT

PROFESSIONALS

Disclosure

• This project was supported by Grant No. 2016-DC-BX-K007 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Department of Justice’s Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the SMART Office.

• Points of views or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

Standard of CareMAT is the standard of care for

treating opioid use disorders:

• U.S. Dept. of Health & Human Services (1997)

• National Institute on Drug Abuse (2014, 2018)

• U.S. Surgeon General (2018)

• Substance Abuse & Mental Health Services Administration

(2005, 2018)

• National Academy of Sciences, Engineering & Medicine (2019)

• World Health Organization (2004)

• Centers for Disease Control & Prevention (2002)

• American Medical Association (2017)

• American Psychiatric Association (2017)

• American Society of Addiction Medicine (2015)

• American Academy of Addiction Psychiatry

• American College of Obstetricians & Gynecologists (2016)

• National Association of Drug Court Professionals (2013, 2015)

Etc. . .

Longstanding

Key Moments in NADCP HistoryCase Law History• Robinson v. California (1962) - cannot

criminalize the illness of addiction

• Powell v. Texas (1968) – can criminalize

use, possession and intoxication; no

requirement to provide treatment; criminal

justice system is an acceptable forum

• Deliberate indifference analysis

• Due process analysis not appreciably

different from 8th Amendment analysis

(pretrial detainees)

• Deference to correctional goals and

resources (~ any rational basis)

Key Moments in NADCP HistoryLegal Standards

Statutes, regulations, and professional practice standards can

increase the level of scrutiny but cannot decrease it.

Nearly unbridled

discretion

Rational Basis Test

• Substantial state interest

• Reasonably related to the

person’s crime, rehabilitation

needs, or public safety

• Particularized inquiry

• Reviewable record

Due Process analysis

Early precedent:

• Compelling state interest

• Narrowly tailored

Rapidly reversed:

• Deference to

penological interests

Limited discretionDeliberate Indifference

Avoid wanton pain or

discomfort (e.g., withdrawal)

Prisoners; convicted

jail inmates; discretionary

conditional release

Discretionary funding

or authorization

condition

Pretrial

detainees &

supervisees

Probationers;

mandatory paroleesLoco parentis

Drug Court Standards

(not federal funding)

BJA/CSAT attestation

(federal funding)

Americans with Disabilities Act (ADA)

Rehabilitation Act

Key Moments in NADCP History

• BJA / CSAT Drug Court Discretionary Grants

• Signed attestation accompanying application

• Will not deny access to, or successful

graduation from, drug court due to a lawful

prescription for MAT

• Exceptions:- Not taking the medication for SUD treatment

- Not examined, diagnosed, and lawfully prescribed by a licensed medical practitioner

- Misusing or diverting the medication

Drug Court Grants

Key Moments in NADCP HistoryBest Practice Standards

• Affirmative obligation to learn the facts

about MAT

• Obtain medical consultation

• No blanket prohibitions for entry or

graduation

• Rational basis analysis (at the least)

• Particularized inquiry

• Reviewable rationale

Key Moments in NADCP HistoryConvicted Inmates

Pesce v. Coppinger, No. 18-11972-DJC (D. Mass. 2018).

Smith v. Aroostook County, No. 1:18-cv-352-NT (D. Maine 2019), aff’d No. 19-1340 (1st Cir. 2019).

DiPierro v. Hurwitz, No. 1:19-cv-10495-WGY (D. Mass.2019) (settlement agreement).

▪ Denials of methadone or suboxone prescriptions

▪ Preliminary injunction motions (substantial likelihood of success on the merits and

serious irreparable harm)

▪ Qualified disability under the ADA (or Rehabilitation Act for BOP)

▪ Blanket prohibition or summarily dismissing MAT requests is unreasonable or

arbitrary and capricious (violates the ADA and possibly the 8th Amendment)

▪ Prime facie showing of medical necessity

▪ Reasonable accommodations are available (e.g., observed administration)

▪ Prohibitions based on outmoded stereotypes and unproven assumptions about the

disease of addiction

Key Moments in NADCP HistoryOther Court Programs

“Under the ADA, a public entity is not required to allow someone to participate in or benefit from its services or programs if the person poses a "direct threat to the health or safety of others." 28 C.F.R. § 3S.139.

. . .Crucially, the ADA requires a public entity to base its assessment of "direct threat” on an individualized evaluation that is grounded in current medical knowledge and the best available objective evidence. Id.”

DOJ Advisory Letter (Oct. 2017)

“. . . the ADA prohibits the _____ Family Court and ____ Surrogate's Court from (l) denying the MAT participant the benefits of their services, programs, or activities; (2) excluding the MAT participant from their services, programs, or activities; or (3) otherwise subjecting the MAT participant to discrimination, by reason of her disability. See 28 C.F.R. § 3S.130.”

Key Moments in NADCP HistoryOther Court Programs

“Under the ADA, a public entity is not required to allow someone to participate in or benefit from its services or programs if the person poses a "direct threat to the health or safety of others." 28 C.F.R. § 3S.139.

. . .Crucially, the ADA requires a public entity to base its assessment of "direct threat” on an individualized evaluation that is grounded in current medical knowledge and the best available objective evidence. Id.”

DOJ Advisory Letter (Oct. 2017)

“. . . the ADA prohibits the _____ Family Court and ____ Surrogate's Court from (l) denying the MAT participant the benefits of their services, programs, or activities; (2) excluding the MAT participant from their services, programs, or activities; or (3) otherwise subjecting the MAT participant to discrimination, by reason of her disability. See 28 C.F.R. § 3S.130.”

Key Moments in NADCP HistoryOther Court Programs

“. . . the ADA prohibits the _____ Family Court and ____ Surrogate's Court from (l) denying the MAT participant the benefits of their services, programs, or activities; (2) excluding the MAT participant from their services, programs, or activities; or (3) otherwise subjecting the MAT participant to discrimination, by reason of her disability. See 28 C.F.R. § 3S.130.”

“Under the ADA, a public entity is not required to allow someone to participate in or benefit from its services or programs if the person poses a "direct threat to the health or safety of others." 28 C.F.R. § 3S.139.

. . .Crucially, the ADA requires a public entity to base its assessment of “direct threat” on an individualized evaluation that is grounded in current medical knowledge and the best available objective evidence. Id.”

DOJ Advisory Letter (Oct. 2017)

Key Moments in NADCP HistoryFactual Basis for ADA Claim

▪ Sample letters and forms: https://lac.org

▪ Prescribing Medical Practitioner:

✓ Qualifications and experience

✓ Personally examined the participant

✓ Diagnosis of moderate to severe opioid use disorder

✓ Prognosis with vs. without MAT (or agonists)

✓ Failed efforts at drug-free counseling or other medications,

or likelihood of failure

✓ Benefits substantially outweigh risks for MAT (or agonists)

✓ MAT is medically necessary (or medically indicated)

✓ Denial or forced withdrawal is against medical advice and

falls below the recognized medical standard of care

✓ Involuntary cessation is likely to significantly increase the

risk of relapse, overdose, and death

Key Moments in NADCP HistoryElements of an ADA Claim▪ Defense Counsel (or participant if pro se):

✓ Motion to modify conditions (writ of mandamus or writ of

prohibition if denied)

✓ Participant has a qualified disability under the ADA (and/or

applicable state law, or Rehabilitation Act if a federal court

or action)

✓ ADA applies to probationers, parolees and inmates

✓ Participant requests reasonable accommodations, which

may include observed administration or similar measures

✓ MAT prohibition not reasonably related to the goals of

supervision (rehabilitation, recidivism, public safety)

✓ Blanket prohibition or tapering requirement violates the

Drug Court Best Practice Standards (if applicable)

✓ Imminent risk of irreparable harm from relapse, ensuing

legal consequences, overdose, and/or death

✓ Affidavit(s) from medical prescriber

Key Moments in NADCP HistoryOther Service Professionals

▪ Qualified immunity at most

▪ Respectful collegiality

▪ Educate first before assuming adversarial posture

▪ Raise issue informally, and then formally, before

there is a case in dispute

▪ Clarify the nature of the ethical conflict

▪ Make commitment known to ethical standards

▪ Take reasonable steps to resolve the conflict

▪ Always be prepared to step back to education

▪ Abiding vs. contributing to substandard care

Poorer CJ OutcomesMinimizing Diversion

• Observed administration

• Levels monitoring

• Random call-backs

• Medication event monitoring system (MEMS)

• Pre-approval, full disclosure and release of

information for new prescriptions

• Prescription drug monitoring program (PDMP)

• Abuse-deterrent formulations

Failure to abide by these conditions

is a proximal (willful) infraction, and

merits a higher-magnitude sanction

Poorer CJ OutcomesCompetent MAT Providers• American Academy of Addiction Psychiatry

www.aaap.org/patient-resources/ find-a-specialist

• American Board of Addiction Medicine www.abam.net/find-a-doctor

• American Society of Addiction Medicine community.asam.org/search

• SAMHSA Behavioral Health Treatment Services Locator findtreatment.samhsa.gov

• SAMHSA Buprenorphine Treatment Physician Locator www.samhsa.gov/medication-assisted-treatment/physician-

program-data/ treatment-physician-locator

Key Moments in NADCP HistorySummary▪ MAT is the generally accepted standard of care for

treating opioid use disorders

▪ Blanket prohibitions violate the rational basis test,

ADA (and other statutes), Drug Court Standards, and

possibly the 8th Amendment or Due Process

▪ Safeguards should be employed to avoid misuse

▪ Challenging prohibitions requires medical and

factual evidence sufficient to support a claim

▪ Other professionals are obliged to follow the

standard of care and may not knowingly contribute

to or ignore practice violations

▪ Ethical commitment to collegiality, education and

encouragement of voluntary practice compliance

▪ The ultimate ethical obligation is to one’s client