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Opioid-Receptor Treatment is Mandatory Under the ADA and the 8th Amendment

By: Dr. Bharani Padmanabhan – June, 2018

The U.S. FDA long ago approved medicines for the treatment of patients whose brains respond differently to pain medicines that work at the various opioid receptors in the brain.

As is evident, not all brains are the same and so responses to different medicines vary greatly. That is a normal everyday aspect of medical care.
The vast majority of people on earth will never become addicted to any pain medicine no matter how long they take them.

Around 5% of people however have brains that simply continue to demand those medicines even when there is no medical need for them. These people are unable to control their brains and need medical help to do so.

That 5% statistic has stayed remarkably stable over the years that the federal Substance Abuse and Mental Health Administration has been tracking it. The percentage of people who divert or abuse pain medicines prescribed to them by doctors has never gone above 5% over the past 10 years. Meaning 95% of patients prescribed pain medicines never ever have a problem.

There are no addictive substances on this earth, only addictive brains.
And the data is now overwhelming that those whose brains are different in this regard, and chronically seek heroin and other opiates, respond very well to the FDA-approved medicine available just for them, called buprenorphine (Suboxone).

Which brings us to detainees in county jails and convicts in both jails and prisons.

It is already recognized under Federal law that people with drug addiction are people who are disabled under the definitions of the Americans with Disabilities Act, 42 U.S.C. § 12102 and 28 C.F.R. § 35.108, and are covered by the ADA’s protections against discrimination which also provides that health and drug rehabilitation services cannot be denied based on a person having engaged in illegal drug use. 42 U.S.C. § 12210(c).

Sheriff Coppinger and others are on record that a high percentage of both detainees and convicts are drug addicts within the meaning of the ADA. The statute excludes persons who are considered “casual drug users” and protects only those who have had trouble from the drug and numerous relapses, meaning a chronic addiction.

As a matter of law, when jails and prisons issue blanket bans on detainees and convicts retaining access to buprenorphine treatment for their disability while an inmate, without conducting an individual analysis for each detainee or convict, they are in clear violation of the ADA.

Not providing buprenorphine to a drug addict is as much a violation of the ADA as refusing insulin to a diabetic or levodopa to someone with Parkinsonism or an anti-platelet agent to an inmate who has suffered a stroke.
This past week a county jail in Washington State has been sued under the ADA for just such an impermissible blanket ban. Kortlever v. Whatcom County, 2:18-cv-00823, WD Wa.

Blanket bans in jails are issued mostly on the basis of a moral claim (virtue signaling) or budgetary concerns. Neither will withstand scrutiny in Federal court under a recognized ADA discrimination claim.

Sheriff Coppinger would be well advised to demonstrate leadership and ensure both detainees and convicts in his county jail have full individual access under MassHealth to generic buprenorphine, properly prescribed by a doctor and monitored in-house by a nurse.

This would avoid having to defend an expensive class action lawsuit as well as remove the incentive for smuggling and related corrupt acts by his own staff.
Now that buprenorphine is even available as a once-monthly injection, there are no legitimate roadblocks to its use for inmates considered high-risk for daily use.

“Everyone who seeks treatment for opioid use disorder deserves the opportunity to be offered the treatment best suited to the needs of each individual patient, in combination with counseling and psychosocial support, as part of a comprehensive recovery plan,” said FDA Commissioner Scott Gottlieb, M.D.

Again, no policy that is a blanket ban shall survive scrutiny. The time for real leadership is now.

Bharani Padmanabhan MD PhD is a neurologist who specialized in multiple sclerosis in the Boston area till July 2017 when the institutionally corrupt state medical board violated the Sherman act. scleroplex@gmail.com

ValleyPatriot

ValleyPatriot

The Valley Patriot is a free monthly print newspaper serving Northern Massachusetts, and Southern New Hampshire. The print edition is published by the 10th of each month and is distributed to 51 cities and towns.

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