April 30, 2019

The Whatcom County Jail will provide people in the jail with opioid use disorder (OUD) the medications necessary to treat their addiction, according to the settlement agreement proposed in a class-action civil rights lawsuit filed by the ACLU of Washington. OUD is a chronic condition often accompanied by changes to brain chemistry, and it is a protected disability under the Americans with Disabilities Act (ADA).

The lawsuit was filed in June 2018 on behalf of people in the jail with OUD who were not receiving access to medications.

According to the proposed settlement agreement, the Whatcom County Jail will provide Medication-Assisted Treatment (MAT) services to medically appropriate inmates with OUD. This will include maintaining people on MAT prescription medications they were already using in the community, as well as starting qualifying people on medication in the jail before release. MAT services will include Suboxone, Subutex and Vivitrol as options. The jail has also been working closely with community MAT providers to make sure that people will be able to continue treatment upon release.

By stabilizing physical and psychological cravings for opioids, MAT can help people manage their OUD and achieve better outcomes in recovery. Many people with opioid use disorder need to remain on MAT for years and in some cases, their entire lives to decrease the risk of relapse and overdose.

“When people who are getting Medication-Assisted Treatment for their opioid use disorder are able to stay on the medicine, the entire community is better off,” said Mark Cooke of the ACLU-WA’s Campaign for Smart Justice. “We’re glad that Whatcom County has taken steps to help people in their efforts to overcome opioid addiction. The policy changes at the jail will save lives.”

Federal judges in Massachusetts and Maine have recently ordered jails to provide MAT for specific individuals with OUD entering incarceration, but this is the first time that class-action litigation has resulted in a jail changing its policy to provide MAT to all individuals with a medical need for it.

Filed in U.S. District Court for the Western District of Washington, the lawsuit, Kortlever v. Whatcom County et. al, challenged Whatcom County’s refusal to provide people access to MAT even though it provides other clinically appropriate medications to inmates. Singling out a group of people because of their disability and denying them access to medical services to which they would otherwise be entitled is prohibited under the Americans with Disabilities Act. Whatcom County’s willingness to change its policies means that the court will not have to decide whether the previous policy was unlawful. 

Around the nation, facilities have begun to change their policies to provide MAT, which is widely recognized by the medical community as the standard of care for OUD. The Department of Justice recently reached settlements with healthcare providers for violating the ADA due to policies of not allowing patients to use MAT. One was a skilled nursing facility in Massachusetts; the other, a primary and specialty care clinic in West Virginia. The President’s Commission on Combating Drug Addiction and the Opioid Crisis has also called for the use of MAT in criminal justice settings.

The ACLU of Washington and Whatcom County have asked the Court to approve the settlement agreement and certify the class. A response from the court typically occurs in about 60 days. During this time, counsel for the proposed class must notify members of the class to see if there are any objections. 

In addition to Cooke, ACLU-WA attorneys Lisa Nowlin and John Midgley and cooperating attorneys Bart Freedman, Christina Elles, Todd Nunn, and Paul Bruene from law firm K&L Gates represented the named plaintiffs, Gabriel Kortlever and Sy Eubanks.

For more information and case documents visit: https://www.aclu-wa.org/cases/kortlever-et-al-v-whatcom-county

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