May 13, 2020
OCR Secures Agreement with West Virginia to Protect Persons in Recovery from Opioid Use Disorder from Discrimination on the Basis of Disability
Today, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) announced that it has entered into a voluntary resolution agreement (VRA) with the West Virginia Department of Health and Human Resources, protecting the rights of persons with disabilities, including persons in recovery from Opioid Use Disorder (OUD) to be free from discrimination in state child welfare programs. OCR investigated a complaint filed by an aunt and uncle who sought to adopt their young niece and nephew who were in the custody of West Virginia’s Bureau of Children and Families Programs (BCF). The aunt and uncle allege BCF denied their request for placement of the children based on the uncle’s being in recovery from opioid use disorder and his long-term use of physician-prescribed Suboxone as part of his medication-assisted treatment (MAT) program.
“This civil rights action reflects the Trump Administration’s commitment to protecting the rights of Americans with disabilities and tackling substance use disorders as medical issues that respond to effective treatment,” said HHS Secretary Alex Azar. “Americans who are successfully receiving long-term treatment for opioid use disorder can lead normal lives, which is why HHS has made it such a priority to expand access to medication-assisted treatment, boosting the number of Americans who receive it by more than 40 percent since President Trump took office. We commend West Virginia’s decision to revise its policies to protect the rights of families and children while continuing the state’s aggressive battle against the opioid crisis.”
The complaint alleged that, despite receiving a favorable home study finding, BCF social workers determined the aunt and uncle were not an appropriate placement resource for either child, citing the uncle’s history of taking prescribed Suboxone as part of his MAT program. BCF declined to provide the aunt and uncle the opportunity to serve as a kinship placement option for these children, even though the aunt would have been the primary caregiver, and even though the uncle had not tested positive for illegal use of drugs during the course of his treatment (and eventually ceased using Suboxone altogether).
Following data requests and witness interviews, OCR identified systemic deficiencies regarding West Virginia’s implementation of its disability rights policies, practices, and procedures to ensure the civil rights of individuals in recovery from OUD in West Virginia’s child welfare system. West Virginia agreed to work with OCR to ensure full compliance with its federal civil rights obligations under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act.
In April 2020, both parties agreed to a Voluntary Resolution Agreement (VRA) that requires West Virginia to update its nondiscrimination policies and procedures and other materials to emphasize that individuals with a substance use disorder are entitled to the protections of Section 504 and Title II, create a new disability rights training plan that specifically educates its staff on working with individuals who are in recovery from substance use disorder, and provide assurances of its compliance with Section 504 and Title II. During the term of the VRA, OCR will monitor West Virginia’s compliance with these federal laws and will be available to provide technical assistance.
West Virginia also agreed to update the aunt and uncle’s case file and notify the family Court of the aunt and uncle’s allegations and West Virginia’s agreement with OCR, so that the Court may consider them before it makes any final custody determination with respect to the children.
“The West Virginia Department of Health and Human Resources, Bureau for Children and Families is happy to enter into this agreement regarding the use of medically assisted treatment for substance use disorder and the Americans with Disabilities Act,” said the Secretary of the West Virginia Department of Health and Human Resources, Bill J. Crouch. “Along with behavioral therapy, the use of MAT provides effective treatment for opioid use disorders, enabling individuals struggling with addiction to reclaim their lives.”
“People in recovery from opioid use disorder should never be stigmatized for seeking appropriate medical treatment that can save their lives,” said OCR Director Roger Severino. “OCR commends West Virginia’s willingness to update its policies and procedures to make sure individuals with disabilities do not face unlawful discrimination based on either misinformation or stereotypes in its state’s child welfare system,” Severino concluded.
“Successful treatment for opioid use disorder requires an individualized approach which includes FDA-approved and physician prescribed medication, as well as psychosocial and community recovery supports,” said Assistant Secretary for Mental Health and Substance Use, Elinore McCance-Katz, MD., Ph.D. “The Substance Abuse and Mental Health Services Administration takes seriously its responsibility to do all it can to advance the use of these effective, evidenced-based treatments.”
To read the full agreement text, click here.
To learn more about how federal civil rights laws protect qualified individuals with an Opioid Use Disorder, please visit www.hhs.gov/ocr/opioids.
For more information about discrimination on the basis of disability, visit: www.hhs.gov/civil-rights/for-individuals/disability.
To learn more about protections from discrimination in the child welfare system, visit: www.hhs.gov/civil-rights/for-individuals/special-topics/adoption.
To learn more about non-discrimination on the basis of sex, race, color, national origin, age, and disability; conscience and religious freedom; and health information privacy laws, and to file a complaint with OCR, please visit www.hhs.gov/ocr.
Follow HHS OCR on Twitter @HHSOCR.