Guidance recently issued by the American Society of Addiction Medicine states that patients should have access to the full range of FDA-approved medications. Regulatory agencies including state licensing boards, the ASAM said, should not “discriminate against the type of treatment an individual receives based on unjustified assumptions that certain treatments cause impairment.”
Scott began driving for Uber to make extra money for rehab and even tried decreasing his medication dosage. In the meantime, he said, he faced increasingly uncomfortable questions from his employer, who wanted him to stay on but wondered why he hadn’t gotten his license yet. He felt torn on what to do.
“I’ve had 100% success with my recovery,” he said. “What made it so hard is the science was on my side on this. What happens if I am right and then you put me into long-term treatment? Who knows what happens after that?”
He didn’t know that federal authorities at the time were actively investigating a similar scenario just two states over, in Indiana.
‘A very strong signal’
Though the protections afforded to people with substance use disorder by the Americans with Disabilities Act are more than three decades old, experts say the stigma and discrimination faced by people who use buprenorphine and methadone remains endemic.
Over the years, Friedman and her colleagues at the Legal Action Center have represented many clients who have been forced to make the choice between their legally prescribed medication and their livelihoods or access to services.
“We’ve personally witnessed people struggling with these orders to taper off,” she said. “Suffering and kind of agonizing about whether they should go back to an appropriate dose where they were thriving, or continue to taper against medical advice so that they can comply with some ill-thought-out and discriminatory order.”
Until recently, there had been little enforcement of ADA protections for people who take medication to treat their opioid use disorder. The Justice Department first published its argument that discrimination based on a patient’s use of medication was tantamount to discrimination based on disability in 2018, when it reached a settlement with a skilled nursing facility that denied admission to a patient who used Suboxone.
Since then, the agency has released guidance explaining how the ADA applies to opioid use disorder and expanded its work to various contexts, filing lawsuits and forcing entities into consent decrees.
The push to protect access to these medications is part of the Justice Department’s overall strategy to combat the opioid epidemic. Its cases have focused on people penalized for using the medications or who have been denied access to them — including in the criminal legal system, where few correctional facilities allow prisoners to use them.
“Our rigorous enforcement of the Americans with Disabilities Act should send a clear message that the rights of people with disabilities, including those with opioid use disorder, must and will be protected,” said the DOJ’s Clarke. “When it comes to opioid use disorder, we reject discriminatory and unlawful policies and practices that are rooted in nothing more than stereotypes, myths and misconceptions.”
Other federal agencies including the U.S. Equal Employment Opportunity Commission have also stepped up enforcement. But experts say it’s the DOJ that has sent the strongest signal and established critical precedent where there once was little.
Just last year, it reached its first settlement resolving claims of employment discrimination based on MOUD when it required a Tennessee county to make policy changes and pay damages to a correctional officer who was pushed out of his job because he used buprenorphine. The agency found that the Cumberland County Sheriff’s Office had violated the ADA by failing to make reasonable accommodations to allow him to work and use the medication.
Each time the Justice Department breaks new ground, Friedman said, it becomes easier for front-line attorneys to advocate for their clients in court. It also helps patients like Scott.
Like any good lawyer faced with a problem, Scott began to research. He learned his medication was federally protected, and then about a case remarkably similar to his own.
In March 2022, the Justice Department announced its findings that Indiana’s State Board of Nursing had violated the ADA by requiring that a nurse who was seeking to reinstate her license stop using buprenorphine in order to participate in a program that rehabilitates and monitors nurses with drug or alcohol addiction. The board’s abstinence-only policy violated the law, according to the Justice Department, in part by creating barriers that screened out people who used MOUD.
Indiana’s nursing board denied breaking the law, but agreed to pay damages and make policy revisions to ensure that nurses who use medication can remain on it while participating in a monitoring program.
Scott suddenly felt like he had “something to stand on.” He began to push back against TLAP.
‘Not fit to practice’
By the fall of 2022, Scott’s life had changed. He’d left his job at the law firm because he couldn’t get licensed, but got a new job negotiating contracts at a health care company. His first child, a boy, was born.
Scott had previously asked the Board of Law Examiners for more time as he tried to figure out how to comply with TLAP. He had decided he wanted to stay on buprenorphine, so he asked TLAP for permission to get a second opinion, this time from a Tennessee-based program, hoping a new evaluation would support his use of the medication. Though TLAP granted his request, by then Scott had grown increasingly frustrated with the process and traded a handful of contentious emails back and forth with the organization.
The board allowed him to postpone his final hearing to get the evaluation, but warned that failure to comply with TLAP would be grounds to deny him his license.
Scott paid $6,000 for the three-day evaluation, submitting again to drug tests, cognitive testing and extensive questioning about his criminal record and family history.
The results came a day before the hearing. When he read them, his heart sank.
The physician concluded Scott had used buprenorphine for more than a decade without any “legal, educational or occupational deficiencies or consequences,” and that his criminal history was “representative of living in poverty in a small community,” not of any underlying personality disorder.
Ultimately, however, he determined that Scott didn’t have a “foundation of recovery treatment” and was “not fit to practice law.” The physician diagnosed Scott with mild cannabis use disorder in “early remission,” as well as alcohol use disorder “by history.” Scott would later dispute both in writing to TLAP — he said he didn’t drink alcohol and was able to stop his occasional use of CBD and delta-8, the THC product, without issue.
Scott should follow Palmetto’s recommendation of attending abstinence-based treatment, the physician wrote, and also consider switching his medication to naltrexone.
Scott and his attorney had arguments on his criminal history prepared for his next hearing, but not the new evaluation. When they arrived at his hearing, they saw a representative from TLAP, which had also received a copy of the report. The stakes couldn’t have been higher. If the board denied his application because he hadn’t complied with TLAP, his bar score would expire before he could apply again.
He had one last option: withdraw and reapply as a first-time applicant, restarting the clock. He took it.
As he walked out of the room that day, he fought back tears.
‘I have a lot of work to do’
A year passed. By the fall of 2023, Scott was spending his days working from home beneath his unused law degree, vacillating between hope and frustration. By most standards, he was thriving. He’d been promoted, and his nearly 2-year-old son was enchanted with his new puppy.
But he hadn’t given up on his dream.
Scott reapplied for bar admission. At the end of November, he was called to a hearing that would determine, finally, whether or not he’d get to be a lawyer.
Scott received notice of the hearing on a Friday, just six days before it was scheduled. He contacted a new attorney, Greg Brown, who had years of experience representing professionals, including lawyers and doctors, before licensing boards. Brown spent that night reading through Scott’s file, and on Saturday morning, outraged over what was happening to him, officially took him on as a client.
Brown worked through the weekend, quickly drafting a legal strategy. He filed a response to the board stating that Scott would not comply with the requirement that he stop using his medication and attend abstinence-only treatment.
Four days later, Scott and Brown walked into a hearing room near the Capitol building in Nashville and sat at a white folding table facing four attorneys with the Board of Law Examiners. They expected to go head to head with TLAP and lose, and were prepared, Brown said, to file a federal civil rights claim afterward.
But no one from TLAP was at the hearing. Right away, according to the hearing transcript, the board made clear it didn’t want to discuss Scott’s medication or his noncompliance with TLAP at all. Though Scott had filed dozens of pages of supplemental material since the board first referred him to TLAP in 2021 — including court records, reference letters and detailed explanations of his legal record — the board wanted to focus its questioning on his past conduct. That included his criminal history, but also his communications with TLAP and the board, which had grown increasingly heated as time passed.
Scott’s past and his behavior during the licensure process were troubling, an attorney representing the board said at the hearing. “His conduct demonstrates that there is a lack of accountability for his actions and long history of conduct that gives rise to certain criminal arrests, and then an inability again to control his temper,” he said.
Scott testified on his own behalf, explaining his past criminal charges and apologizing for lashing out at TLAP.
The board highlighted one particular email that Scott sent to Buddy Stockwell, TLAP’s executive director, after he withdrew his application the year before. In it, he stated he was looking forward to working with the Justice Department to fix the character and fitness process in Tennessee. “It may be funny to you guys, but I’ve worked my ass off and I have a family to provide for. This isn’t over yet,” Scott wrote.
The board said it didn’t want to get into anything regarding the DOJ, according to the transcript. But it asked Scott to explain himself.
“I was very emotional,” Scott testified. “It hurt. I worked very hard to get here, and he had made requirements that I could not overcome.”
Brown began pressing the issue. The assessment Scott received before his last hearing, he pointed out to the board, “concluded that Mr. Scott was not fit to practice law because he’s on Suboxone treatment. That’s what it says.”
He asked if he could bring Scott’s doctor in to speak. “I don’t think that that is our focus,” a board member said. “That — the — any fitness issues or the particular treatment that he’s chosen to treat his addictions.”
Brown called Scott’s doctor anyway. For the first time, he testified before the board, saying he had no concerns about Scott’s fitness to practice law and that he had also treated other professional patients, including doctors and lawyers, with buprenorphine.
Other witnesses followed, offering glowing assessments of Scott’s character. After several hours of testimony, the board broke to deliberate. Scott steeled himself for bad news.
When they returned, the board announced Scott would get his license, without any conditions. Scott wouldn’t have to talk to TLAP again. It was over.
“I bet my eyes were big,” Scott recalled. “I was thinking, ‘This is unbelievable.’”
Before the hearing ended, a board member told Scott that the licensure process would have gone a lot easier if he had communicated better. Conflict, she advised, was an inevitable part of practicing law.
Scott nodded and thanked her. “I don’t plan to be back before any board ever again,” he said.
A month later, and nearly three years after he passed the bar exam, Scott stood in a courtroom in front of a judge and the Tennessee state flag with his right hand raised.
As his son watched him swear his oath of admission to the bar, he thought about the price he paid to get there. But he also thought of his grandmother Nellie and how proud she would have been to see it.
“Now, I have a lot of work to do,” he said. “It’s just the beginning.”
