by Joanne R. Lax
Dykema Gossett PLLC is an IMA B2B Partner
Following President Trump’s signature on broad federal legislation to combat the opioid crisis in the U.S., the U.S. Department of Health and Human Services (DHHS) announced two initiatives to further reduce opioid-related deaths. On October 25, 2018, DHHS’ Office of Inspector General (OIG) expanded its Medicare Strike Forces to address improper opioid prescriptions, and the DHHS’ Office for Civil Rights (OCR) published Guidance to prevent discrimination against individuals seeking treatment for opioid use disorder.
Jointly with the U.S. Department of Justice, the Federal Bureau of Investigations and the Drug Enforcement Administration, the OIG announced the formation of the Appalachian Regional Prescription Opioid Strike Force (ARPO Strike Force) to identify and prosecute health care fraud and abuse relating to opioid prescription and distribution. While the opioid crisis exists everywhere in the U.S., the Appalachian geographic region has been especially hard hit. Per the joint Press Release, “The mission of the ARPO Strike Force is to identify and investigate health care fraud schemes in the Appalachian region and surrounding areas, and to effectively and efficiently prosecute medical professionals and others involved in the illegal prescription and distribution of opioids.” It is anticipated that the ARPO Strike Force will focus its attention upon physicians and pharmacies engaged in illegal opioid prescription and distribution schemes.
At the same time, OCR launched a campaign to inform the public about legal non-discrimination requirements applicable to people suffering from opioid use disorder. Per the announcement, “The campaign aims to improve access to evidence-based opioid use disorder treatment and recovery services, such as Medication Assisted Treatment, by ensuring that covered entities are aware of their obligations under federal nondiscrimination laws, including laws prohibiting discrimination on the basis of disability or limited English proficiency. In addition, the campaign seeks to educate the public about disability rights protections that may apply to persons in recovery from an opioid addiction.” To this end, OCR released two Guidance documents: “NONDISCRIMINATION AND OPIOID USE DISORDERS FACT SHEET,” and “FACT SHEET: DRUG ADDICTION AND FEDERAL DISABILITY RIGHTS LAWS.”
The first recaps the nondiscrimination obligations of entities subject to the Rehabilitation Act of 1973, the Americans with Disabilities Act, and § 1557 of the Affordable Care Act. The thrust is to ensure that individuals suffering with opioid use disorder are not prevented from receiving addiction recovery services because of language barriers, mobility/accessibility barriers, communication barriers due to sensory impairment, race, gender or other protected classifications.
The second tackles the difficult question of whether opioid use disorder itself is a disability that is protected under the Rehabilitation Act of 1973 or the Americans with Disabilities Act. It addresses the confusing statutory exception to the definition of “disability” for individuals who are illegally using drugs. While the Guidance does not clarify all aspects of that exception, it does unequivocally state that individuals in medication assisted treatment for opioid use disorder are not excluded from the definition of “disability” if their opioid use disorder impacts a major life function.
HHS’ recent activities to combat opioid use disorder and deaths highlight the seriousness of the crisis and the role of the health care community in moving toward solutions. The new federal opioid legislation is itself a multi-faceted approach to the opioid crisis, and will likely continue to be supplemented by targeted initiatives in various federal agencies. Providers may want to review their policies and procedures to assess what steps they can take to reduce inappropriate opioid prescription (while still offering appropriate pain control to patients) and encourage use of evidence-based medication assisted treatment for opioid use disorder.
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