A New Argument from DOJ May Help to Increase Disability Protections for People Who Use Drugs
March 3, 2025
Overview
Substance use disorders are protected disabilities under federal laws like the Americans with Disabilities Act (ADA), but there is an exception for people currently using illegal drugs. In a recent court case in which an arrested individual was denied overdose medication and subsequently died, the Department of Justice provided an official interpretation of ADA provisions arguing that these protections do extend to the incarcerated, regardless of their illegal drug use status.
In recent years, the Department of Justice (DOJ) has emphasized that substance use disorders are protected disabilities under federal laws like the Americans with Disabilities Act (ADA). In particular, DOJ’s guidance and enforcement actions prioritized discrimination related to medications for opioid use disorder (MOUD and OUD): drugs like buprenorphine and methadone, which reduce cravings and mitigate withdrawal symptoms. (DOJ also sometimes refers to opioid overdose reversal medications like naloxone as “MOUD”). Despite scientific consensus that MOUD is the gold standard in OUD treatment, stereotypes and stigma often cause unjustified denials.
Access to MOUD is especially crucial in detention centers and jails, where people with OUD may arrive on short notice and at high risk for dangerous withdrawal. Providing MOUD to incarcerated people greatly improves outcomes after release; one study found MOUD access was associated with a “75 percent decrease in mortality and an 85 percent decrease in overdose deaths in the month following release.”
But there is a significant caveat to the ADA’s reach on this issue: federal disability laws include an exception for people currently using illegal drugs. So, a person with OUD who is now abstinent is likely entitled to ADA protections, but a person with OUD in active use may not be. When plaintiffs claim disability discrimination arising from denied MOUD access, defendants often raise the “illegal drug use” exception.
Crucially, however, there is also an exception to the exception: for “programs and activities providing health services,” a person “shall not be excluded” based on illegal drug use if they are “otherwise entitled to such services.” Thus, a person with OUD currently using illegal drugs is still entitled to disability law protections when it comes to a denial of health services based on their drug use.
There is relatively limited case law interpreting and applying these exceptions, but a recent federal action, Cox v. City of Boston, is testing them. The case concerns ADA claims against the Boston Police Department for the death of Shayne Stilphen. Shayne was arrested and brought to a police station holding cell; while in custody, Shayne ingested drugs and began to overdose. The police discovered Shayne’s condition too late, and Shayne died before receiving care.
Shayne’s mother sued the city, arguing that the failure to provide timely overdose reversal medication violated the ADA. In defense, the city invoked the illegal drug use exception, and argued further that the health services exception does not apply to police officers in a police station, outside of a healthcare context.
Significantly, DOJ recently filed a Statement of Interest in the case to offer its official interpretation of these provisions. DOJ concludes that the “correct interpretation” is that the health services exception applies “regardless of whether the health services are provided by a facility specifically focused on providing health care.” To DOJ, the broad language of the exception and its focus on the category of service—“health services”—“rather than where they are provided or who is providing them,” makes this conclusion “crystal clear.” Provision of MOUD is undisputedly a “health service,” so the ADA entitled Shayne to treatment while in police detention—even though a police station is not a hospital, police officers are not healthcare workers, and Shayne had used illegal drugs.
DOJ’s interpretation provides new authority to limit the illegal drug use exception and to support the right to MOUD for incarcerated people. On its own, that is a significant development, considering how frequently MOUD access is denied in carceral settings and how life-saving its provision can be. But there may be even further implications. If the provision of MOUD amounts to “health services” even outside of healthcare settings and when provided by non-medical professionals, then the “illegal drug use exception” may have to give way for many other forms of evidence-based, life-saving harm reduction interventions too. DOJ’s new statement provides authority to more broadly expand the obligation to provide public health interventions to people currently using illegal drugs.
This article was written by Michael Abrams, J.D., Senior Attorney, Network for Public Health Law Harm Reduction Legal Project.
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