On November 13, 2023, the Office for Civil Rights (OCR) at the United States Department of Health and Human Services (HHS) and the United States Attorney’s Office for the District of Massachusetts announced an agreement with a nursing home in Boston, Massachusetts. The investigation was based on information OCR received that the nursing home was violating the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act. As a result, the nursing home agreed to resolve allegations that it denied admission to individuals because they were taking Suboxone or methadone to treat their Opioid Use Disorder (OUD).
The investigation was opened in March 2022 after OCR and the United States Attorney’s Office received information from a nurse at a local area hospital that the nursing home denied admission to individuals because the individuals were taking prescription medication to treat OUD, when they were otherwise eligible for admission. The nursing home’s practice of declining admission to individuals with OUD, without an individualized assessment, screened out individuals with disabilities and denied them the opportunity to participate in or benefit from such services on the basis of their disability.
Under the terms of the agreement, the nursing home will, among other things:
- Revise its admissions policy;
- Provide training to admissions personnel on federal civil rights laws and opioid use disorder;
- Update customer service intake scripts with revised language to include whether the individual with a disability is qualified for the services provided at the nursing home with a reasonable accommodation; and
- Before denying admission based on safety criteria, the nursing home will conduct an individualized assessment, that relies on current medical knowledge or on best available evidence, to determine whether the individual poses a direct threat to the health and safety of others that cannot be reduced by reasonable modifications to its policies, practices, or procedures.
“It is against the law to deny an individual placement in a facility because they are undergoing treatment for an opioid use disorder. This kind of action is not only illegal but leads to further stigma and is contra to efforts to support recovery which is critical,” said OCR Director Melanie Fontes Rainer. “[This] announcement supports the Biden-Harris Administration’s national strategy to prevent, treat, and provide long-term recovery supports for individuals with behavioral health needs, including substance use disorders, as well as the HHS Roadmap for Behavioral Health Integration, which implements the National Strategy by promoting equity in access to affordable, high quality, culturally appropriate care.”
Compliance Perspective
Issue
Under Title III of the ADA, no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. Specifically, discrimination includes the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary. A public accommodation may impose legitimate safety requirements that are necessary for safe operation, but safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. Refusing an individual admission to a facility based solely on the fact that they have a substance use disorder (SUD) or are being treated for OUD could be seen as a violation of Title III of the ADA.
Discussion Points
- Review policies and procedures on discrimination and admission screening. Ensure that facility policies include prohibiting discrimination on the basis of any disability.
- Educate appropriate staff on Title III of the ADA and how denying admission to the facility based upon SUD or OUD could be seen as discrimination. Document that the training occurred and file each signed document in the employee’s individual education file.
- Periodically audit for individuals who were denied admission to the facility to ensure that their denial was not in violation of Title III of the ADA. In addition, ensure that staff are aware of how to report any concerns of discrimination or retaliation.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
