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Literature Review:  Legal Action Center’s Emergency

Hospital ERs May Have to Offer Substance Use Treatment and “Warm Handoff” Referrals

In the midst of a substance use public health crisis, Legal Action Center (LAC), a New York-based nonprofit, has issued a call to arms. Sika Yeboah-Sampong, Ellen Weber, and Sally Friedman write that the evidence is in—hospital emergency departments can save lives if they (1) screen people for substance use disorder, much as they would for other serious medical conditions, like heart disease; (2) offer buprenorphine, a drug similar to methadone that treats opioid use with proven success, as well as naloxone, a drug that prevents overdose deaths, and other appropriate medications; and (3) provide facilitated referrals to longer-term treatment—a warm handoff rather than a list of phone numbers.  A number of hospitals take these steps; the problem is that others do not.

Evidence-Based Treatment for a Disability

The report, titled Emergency:  Hospitals are Violating Federal Law by Denying Required Care for Substance Use Disorders in Emergency Departments, argues that hospitals may violate several laws, including the ADA, if they do not provide this proven treatment. Under the Emergency Medical Treatment and Labor Act (EMTALA), emergency departments do not have to treat chronic conditions, but they do need to screen for, and stabilize, emergency medical conditions. Since substance use disorder presents serious risk of death or severe health consequences, the report concludes that is a condition emergency departments need to screen for and stabilize. Invoking studies, the report argues that stabilization includes providing appropriate medication and facilitated referrals.

Substance use disorder, whether alcohol or drug related, is a recognized medical condition and a disability within the meaning of disability rights laws. While the federal ADA and other disability discrimination laws carve current drug use out of some protection, the report correctly points out that these laws do not allow withholding medical treatment. Thus, LAC argues, hospitals may violate the ADA if, for example, they lack appropriate screening or referral policies, or if they systematically fail to offer effective medications, like buprenorphine.

The Right to Choose Treatment

It can be hard to find sympathy for people who use drugs or alcohol; even doctors have negative attitudes about substance use disorders. Many people feel like these issues are a personal choice, and, of course, they are. People with substance use disorders have said to me, in effect, that we do no favors as advocates if we erase their agency by suggesting they are not responsible or cannot make decisions. As the report explains, however, people with substance use concerns choose to come to the emergency room—even more than they turn to primary care doctors—for help getting better. They should not be denied life saving care they are asking for.

Photo by Theo Goodell,

Contributions of Racial Bias

Bias against drug users seems to lead to some of the failures to provide treatment, but these biases are intertwined with racism. As LAC’s report explains, patients of color have historically been less likely to receive buprenorphine or follow up treatment, although there are hopeful signs this problem may be improving. Black and Latinx people have even been less likely to get effective emergency overdose treatments like naloxone at two New York City hospitals. While the report acknowledges it cannot include a full examination of these questions, these disparities likely stem both from structural racism—the lack of access to health care and insurance, for example—and from more immediate racial bias—medical providers’ explicit or implicit beliefs about Black, Latinx, Indigenous, and other patients of color.

Redressing Systemic Substance Use Treatment Bias

I was glad to read this report. While it does not provide a complete roadmap for a civil rights case in a specific situation, it points to a solid argument that hospitals may be violating patients’ rights if they fail to offer lifesaving care—including screenings, buprenorphine, and “warm handoff” referrals—to patients with substance use disorder.