Elizabeth Pendo and Kelly K. Dineen, Substance Use Disorder Discrimination and The CARES Act: Using Disability Law to Inform Part 2 Rulemaking, 52 Ariz. State L. J. 1143 (2021), https://digitalcommons.law.uw.edu/faculty-articles/954
Substance use disorder (SUD) is a chronic health condition—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence. Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions have led to new and increased drug use, and overdose deaths are surging. More than ever, people with SUDs need access to evidence-based treatment and other services without structural barriers and with civil rights protections. To that end, a new provision in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) strengthens penalties for the wrongful disclosure of SUD treatment records as well as addresses discrimination in multiple settings based on the misuse of those records.
People with SUDs reasonably fear negative treatment and discrimination if their condition is exposed. To address this barrier, federal law strictly protects the confidentiality of SUD treatment records. These protections have existed for nearly fifty years; however, the stringent requirements have been blamed for hampered and even deadly treatment decisions by health care providers who do not have access to SUD treatment records.
Section 3221 of the CARES Act, effective March 2021, enacts the first major statutory changes to SUD treatment record confidentiality since 1992 and is aimed at improving information sharing among SUD treatment providers and other health care providers. But increased information sharing also creates concerns about information misuse and discrimination and the possibility of renewed treatment avoidance. To address the tension between the benefits of information sharing and the possible harms of discrimination after disclosure, Section 3221 strengthens the disclosure penalties to align with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It also adds an entirely new nondiscrimination provision, which prohibits discriminatory use by recipients of disclosed SUD treatment information in areas including health care; employment and receipt of worker’s compensation; rental or sale of housing; access to courts; and social services and benefits funded by federal, state, or local governments.
This essay provides the first analysis of the new nondiscrimination protections in Section 3221 of the CARES Act for individuals with SUDs using the framework of existing protections against disability-based discrimination in the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, Section 1557 of the Patient Protection and Affordable Care Act (ACA), and the Fair Housing Act (FHA). We propose that as the new protections of Section 3221 are implemented through regulations, guidance, and enforcement, they should be understood within the context of existing disability nondiscrimination laws as well as the specific purpose of Section 3221 to ensure that discrimination against such people does not continue to serve as a barrier to seeking treatment. We offer three insights to achieve this goal. First, the new protections should be understood to include current illegal substance users and should be construed broadly. Second, the scope of entities covered by the new protections should be interpreted consistently with existing definitions in laws that prohibit disability-based discrimination in employment; public programs, services and activities; health care; and housing. Finally, robust enforcement must be coupled with educational initiatives about the pervasive discrimination faced by people with SUDs and new and existing nondiscrimination requirements that protect them.