by Arlan Fuller
In Pesce v. Coppinger, Civ. A. No. 18-cv-11972-DJC (D. Mass. Nov. 26, 2018), the United States District Court for the District of Massachusetts ordered that, under the Americans with Disabilities Act (“ADA”) and the Eighth Amendment, a Massachusetts jail was required to provide an inmate, Geoffrey Pesce, prescribed methadone treatment during his incarceration. This decision will have a significant impact on the provision of medical treatment for opioid use disorder in prisons. While other jurisdictions have provided methadone treatment to incarcerated populations, Massachusetts generally has not. Further, the case is the first time a federal judge in Massachusetts has ordered that treatment must be provided.
I. The Question of Opioid Treatment in Prison
In the midst of the nation’s opioid epidemic, there is a debate as to whether to allow medical treatment for opioid use disorder in jails and prisons. Medical treatment is usually methadone, buprenorphine or another prescribed drug that reacts with the same receptors in the brain as drugs like heroin or oxycodone but does not produce a “high” if taken as directed. Studies show that about half of prisoners entering the jail system meet the criteria of substance use disorder and of that group, nearly half have a diagnosed opioid use disorder. Most jails and prisons, however, prohibit even prescribed use of methadone and buprenorphine on the grounds that the drugs present safety and security concerns.
Without treatment, however, relapses may occur, often resulting in disability or premature death. In the case of opioid use disorder, a very present danger exists in the immediate post-release period when treatment has been interrupted during incarceration. A 2007 New England Journal of Medicine study found incarcerated patients to be 129 times more likely than the general population to die of an overdose in their first two weeks following their release. But, even though the data identifies a need to consider methadone or buprenorphine treatment in prison, institutions, particularly in Massachusetts, have been slow to adopt policies allowing for such treatment. Although the Commonwealth has recently announced pilot programs for medical treatment in both jails and prisons, based on legislation passed last year, those programs have yet to begin.
II. The Pesce Decision
Given the significant numbers of prisoners with opioid use disorders, it is no surprise that courts would eventually be faced with questions regarding the availability of treatments. In July 2018, Pesce was charged with driving with a revoked or suspended license in violation of the terms of his probation. Pesce had struggled with opioid use disorder for several years. He was in active recovery since 2016 and receiving methadone treatment. It was agreed that any sentence resulting from the charges would be served in the Essex County House of Corrections. However, that facility did not provide methadone treatment to inmates. To obtain medically necessary treatment, and avoid the risk of overdose and death upon his release, Pesce requested that he be allowed to continue methadone treatment while in jail. When Pesce did not receive a response, he sought an injunction ordering that his treatment continue while he was incarcerated.
Pesce argued that the jail’s policy of denying access to methadone treatment violated his rights under the ADA. The ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Pesce asserted that the refusal to administer methadone deprived him of the benefit of health care programs, and that such conduct constituted discrimination on the basis of his disability.
Pesce also argued that the jail’s policy against methadone treatment constituted cruel and unusual punishment in violation of the Eighth Amendment. The jail’s policy did not permit the treatment, regardless of his doctor’s and other medical professionals’ opinions regarding the treatment of patients who, like Pesce, struggle with recovery without methadone treatment.
Pesce demonstrated that he would suffer irreparable harm. Before starting methadone, Pesce had overdosed three times in less than 24 hours. His doctor described him as at “high risk of overdose and death upon his release” without continued methadone treatment. Statistics provided to the court also showed the dangers in not treating incarcerated individuals with opioid use disorder, including the 2007 New England Journal of Medicine study that found that nearly 50 percent of all deaths among those released from jail or prison were opioid related, with most occurring within a month of release.
The court determined that the medical needs of Pesce outweighed any harms and security concerns of the jail. The court recognized that the prison has a legitimate concern for the safety and security of its inmates. However, in Pesce’s case, methadone would be administered in the presence of prison officials and, because it is in a liquid form, would be extremely difficult to smuggle into the prison. Therefore, the court deemed the medical benefits to Pesce were greater than the risk posed to the prison. Lastly, the Court held that the public interest would be better served by ensuring that Pesce received proper medical care while in prison.
III. The Impact of the Decision
This decision will have significant and far-reaching impact. It is the first time a federal judge in Massachusetts has ruled in favor of providing methadone access in prison. Prisons in Massachusetts will need to provide access to methadone and buprenorphine treatment or likely face similar legal actions. Adding to the debate, the U.S. Court of Appeals for the First Circuit recently affirmed a preliminary injunction ordering a jail in Maine to provide buprenorphine to treat an opioid use disorder. Smith v. Aroostook Cnty., 922 F.3d 41 (1st Cir. 2019). In Smith, as in Pesce, the court found the plaintiff would likely prevail on a claim that withholding treatment violates the ADA and Eighth Amendment. With these decisions, Massachusetts will now face even more pressure to successfully implement the upcoming pilot programs providing opioid maintenance therapy. Similar programs have been successful, such as in New York City, which in 2018 treated 900 prisoners daily with methadone and nearly 4,000 prisoners over the entire year. In fact, 74% of all prisoners with an opioid use disorder were maintained on methadone or buprenorphine during their incarceration.
More broadly, Massachusetts (and elsewhere) will need to determine whether treatment for opioid use disorder for those incarcerated should be considered a discretionary therapy that can be denied, resulting in forced withdrawal and inevitable relapse upon release, or a vital and necessary health service that is protected under by law. In the last issue of the Boston Bar Journal, former Massachusetts Attorney General Martha Coakley and Rachel Hutchinson stated that “as the opioid epidemic grows, the way we view addiction is changing.” The Federal Court’s decision confirms this trend, showing that the corrections system offers an opportunity to engage individuals who might not have strong connections to the health system. Indeed, instead of posing a threat to those struggling with substance use disorder, the corrections system could prove to be a critical point of intervention to address an individual’s health needs. Pesce may be the first case to address medical treatment of opioid use disorders in Massachusetts, but it is unlikely to be the last.
Arlan Fuller, MA, JD, is the executive director of the François-Xavier Bagnoud (FXB) Center for Health and Human Rights at Harvard University and a research associate at the Harvard School of Public Health. His central areas of focus are in human rights law, international development, and US government and legislative strategy. Mr. Fuller received his BA in economics from the College of the Holy Cross. He holds a master’s degree in peace and conflict studies from the University of Ulster, Northern Ireland, and a JD from Boston College Law School.
Massachusetts High Court Rules Judges Can Require Sobriety as Part of Probation in Commonwealth v. EldredPosted: November 6, 2018
by Martha Coakley and Rachel Hutchinson
On July 16, 2018, the Massachusetts Supreme Judicial Court unanimously ruled in Commonwealth v. Eldred, 480 Mass. 90 (2018) that judges can require individuals with substance use disorders to remain drug-free as a condition of probation. Although the Court stressed that judges should consider the challenges of addiction, the Court nevertheless found that judges must also “have the authority to detain a defendant” who has violated probation by using drugs. Id. at 99. It appears that the SJC is the first state supreme court to reach and decide this issue.
I. The Addiction Debate
Remaining drug-free is an almost universal requirement of probation. Many courts, including specialty courts such as drug courts that take a public health approach to substance abuse, require offenders to stay clean, and respond to relapses with sanctions ranging from warnings to jail time. But as the opioid crisis has swept the nation, many have begun to question the central role that courts play in battles with substance abuse.
Eldred cut to the heart of this growing debate. The defendant, Julie Eldred, argued that requiring her to remain drug-free as a condition of probation violated her constitutional rights. According to Eldred, addiction is a chronic brain disease that interferes with one’s ability to abstain from drugs. Eldred argued that punishing addicts like herself for a relapse punishes them for something over which they have no control and negates willfulness. The prosecution disagreed, arguing that addiction is a condition that ranges in intensity and is responsive to penalties and rewards. According to the prosecution, sanctions like jail time are an important tool that judges can use to encourage recovery and promote public safety.
Many of the Eldred amici weighed in on the science of addiction, focusing on the degree of control addicted individuals have over their drug use. For instance, the Massachusetts Medical Society argued that relapse was a symptom of a disease that must be treated, not punished. Other amici, however, pointed out that the scientific community has not yet reached consensus about whether addiction leaves someone powerless over their drug use. The National Association of Drug Court Professionals noted that supervision and drug testing combined with graduated sanctions helps keep individuals in recovery, and cautioned the SJC against allowing “any particular theory of addiction to influence its decision.”
II. The Eldred Decision
Eldred arose out of the 10-day incarceration of Julie Eldred after she failed a court-ordered drug test. Eldred, who had suffered from substance use disorder since age 15, had originally been convicted of larceny for stealing jewelry to support her addiction. Eldred’s probation required her to enroll in outpatient treatment, submit to random drug screenings, and remain drug-free. Although Eldred originally complied with her probation, enrolling in a program and starting on a course of Suboxone, she relapsed shortly thereafter and tested positive for fentanyl, a powerful opioid. Because no inpatient drug treatment facilities had open spots, the judge overseeing Eldred’s detention hearing ordered her held in custody until one became available 10 days later. Eldred, 480 Mass. at 93.
At the full hearing on her probation violation, Eldred argued that this 10-day detention was unlawful because her substance use disorder “rendered her incapable of remaining drug free.” Id. at 92. The judge disagreed, finding that Eldred had violated her probation, but nevertheless granted Eldred’s motion to report the question regarding the lawfulness of the drug-free condition to the SJC. The SJC found that the question was improperly reported, but agreed to consider it nonetheless because it presented “issues of significant magnitude.” Id. at 94.
Although the parties and amici focused their arguments on the addiction debate, the SJC declined to weigh in on the science. Instead, the Eldred decision focused on a judge’s role in setting probation conditions. Based on longstanding precedent, the SJC decided that judges may continue to require individuals to remain drug-free while on probation, and may detain individuals who violate that condition until their probation hearing.
The SJC framed the reported question in three parts. First, when someone who is addicted to drugs commits a crime, may a judge require her to remain drug-free as a condition of probation? Second, if an individual violates the drug-free condition, can she be subject to probation revocation proceedings? Third, may she be held in custody while awaiting admission to an inpatient treatment facility? Id. at 94.
The SJC answered all three questions in the affirmative. While the Court noted that judges who deal with those who suffer from substance use disorder should act with “flexibility, sensitivity, and compassion,” the Court ruled that judges “must have the authority to detain a defendant facing a probation violation based on illicit drug use.” Id. at 95, 99. The Court disagreed with Eldred that the judge’s decision to detain her constituted a punishment for her relapse. Rather, the Court likened it to a bail decision, since no final determination on whether Eldred had violated her probation had been made. The Court noted that the judge simply sought to detain Eldred until an inpatient facility became available. It also held that “although the appellate record before the court was inadequate to determine whether SUD affects the brain in such a way that certain individuals cannot control their drug use,” the trial court did not abuse its discretion in concluding that there was a wilful violation of the defendant’s probation. Id. at 104.
Finally, although the SJC agreed with Eldred that substance use disorder itself cannot be criminalized, it pointed out that “relapse is dangerous,” both for addicted individuals and the community in which they live. Id. at 99. The Court noted that judges, who are on the front lines of the opioid epidemic, “face unresolved and constantly changing societal issues with little notice and, in many situations, without the benefit of precedential guidance.” Id. The Court characterized these decisions as “especially unpalatable” when an offender is addicted to drugs. Id. While the Court, pointing to its own Standards on Substance Abuse, acknowledged that relapse is an accepted part of recovery, the Court stressed that relapse was dangerous nonetheless, and ruled that judges must continue to have the authority to detain defendants after a relapse that violates their probationary terms.
III. Eldred’s Implications
Although Eldred maintained the status quo for judges dealing with addicted offenders, it is unlikely to be the final word on the subject. As the opioid epidemic grows, the way we view addition is changing. Even the Attorney General’s Office acknowledged in its briefing that “exclusively punitive responses to addiction … do not make us safer.” While the criminal justice system may be on the front lines of the crisis for now, that role may change as other jurisdictions, legislatures, agencies, and disciplines grapple with the same questions faced in Eldred.
Martha Coakley, the first female Attorney General of Massachusetts, served from 2007-2015. Her prior experience includes District Attorney of Middlesex County; Special Attorney, Boston Organized Crime Strike Force; and Resident Fellow, Harvard Institute of Politics, John F. Kennedy School of Government. Martha has been a national leader in consumer protection, and civil rights, among other areas. As an active member and then President of the Women’s Bar Association, Martha supported and participated in the §12S petition panel for young women needing counsel in Court. NAAG recognized her outstanding accomplishments in 2014 when she received the Kelley-Wyman Award, given annual to the AG who has done the most to achieve NAAG objectives, Martha graduated from Williams College and the Boston University School of Law. She is a Partner in Foley Hoag’s Administrative Department where she focuses on government and internal investigations, litigation, data privacy and security, and healthcare.
Rachel Hutchinson is an associate in the firm’s Administrative Law and Litigation departments, where she represents individual and corporate clients in a wide range of regulatory matters and civil disputes. Her practice focuses on regulatory compliance, government investigations, and white collar crime. Rachel also maintains a pro bono practice focused on civil rights and LGBT issues.
Siting Opioid Treatment Programs: Legal Tools for Addressing Zoning Restrictions and other Municipal ImpedimentsPosted: July 13, 2016
The opioid epidemic has reached historic proportions in the Commonwealth and beyond, as we are reminded by near daily news stories detailing its devastating consequences. Massachusetts leaders have taken strong steps to curb the epidemic, including legislation signed by Governor Charlie Baker in March. Similar legislative efforts, including additional funding for treatment, are advancing in Congress, and the Department of Health and Human Services (“HHS”) announced in March an initiative to increase access to medication-assisted treatment (“MAT”) which employs medication, counseling and education.
While the Commonwealth has prioritized the need for additional treatment, municipal restrictions often hamper efforts by nonprofit and other providers to site substance-abuse treatment programs. Although public opinion supports expanded treatment in the abstract, when a particular counseling or treatment program is proposed, opposition often arises from neighbors (whether commercial or residential). In response, municipal officials sometimes advance pretextual bases to deny a building permit or certificate of occupancy.
Attorneys can play an important role in advocating for these programs by marshaling protections offered by state and federal law to overcome unlawful zoning restrictions and discriminatory NIMBY (“not in my backyard”) opposition. This article outlines two statutory sources of protection for providers seeking to address the epidemic. In addition, it discusses case law supporting remedies for substance abuse and other social-service programs that have been impeded by neighborhood opposition grounded in stereotypes about, or hostility toward, those suffering from addiction or other disabilities.
- The Dover Amendment, M.G.L. c. 40A, §3, ¶ 2.
While a municipality may generally impose zoning restrictions to regulate where different types of uses – residential, commercial, medical, etc. – may be sited, when an educational nonprofit seeks to site a predominantly educational program, M.G.L. c. 40A, §3, ¶ 2, also known as the “Dover Amendment,” expressly prohibits a municipality’s zoning ordinances or bylaws from “regulat[ing] or restrict[ing] the use of land or structures” for that purpose. This means that a qualifying use must be permitted as of right in any zoning district. This law “represents a specific exception to the general power of municipalities to adopt and enforce zoning regulations and by-laws.” Regis College v. Town of Weston, 462 Mass. 280, 289 (2012).
The Massachusetts Zoning Act, which includes the Dover Amendment, authorizes courts to enjoin violations of the Dover Amendment. See M.G.L. c. 40A, §7. When representing a substance-abuse facility in response to a municipality’s invocation of inapplicable zoning restrictions, the Dover Amendment is an important legal tool. Sometimes town officials are not familiar with the provision and a demand letter can resolve the dispute. In other cases, it is necessary to obtain injunctive relief. Qualifying nonprofit organizations have successfully negotiated settlements which include both permission to site their program at the chosen location and substantial attorney-fee awards.
What uses qualify as predominantly educational?
If a program’s educational purpose is subordinate to other purposes, it does not qualify for Dover protection. “The Dover Amendment protects only those uses . . . that have as their bona fide goal something that can reasonably be described as educationally significant”; such an “educationally significant goal must be the ‘primary or dominant’ purpose for which the land or structures will be used.” Regis College, 462 Mass. at 285.
However, courts “have refused to limit Dover Amendment protection to traditional or conventional educational regimes.” Id. In fact, recognizing that the term “education” is a “broad and comprehensive term,” courts have determined that education is the primary or dominant purpose for which land or structures will be used in programs including substance-abuse treatment centers, group homes, programs serving formerly institutionalized adults with mental disabilities, facilities for the care and education of emotionally disturbed children, and organizations helping the homeless. Id.; Campbell v. City Council of Lynn, 32 Mass. App. Ct. 152, 154 (1992); Fitchburg Housing Auth. v. Zoning Board of Appeals of Fitchburg, 380 Mass. 869, 874 (1980). Courts have specifically held that “[r]ehabilitation surely falls within the meaning of education.” Gardner-Athol Area Mental Health Assoc., Inc. v. Zoning Board of Appeals of Gardner, 401 Mass. 12, 15 (1987). However, “purely residential and purely recreational projects” do not qualify as “educational.” Regis College, 462 Mass. at 287.
Courts have consistently found that the Dover Amendment protects substance-abuse treatment programs with a primarily educational purpose, including both non-medication and medication-based treatment programs. Congregation of the Sisters of St. Joseph of Boston v. Town of Framingham exemplifies a non-medication based Dover-qualifying program. Recognizing that Massachusetts courts have interpreted education broadly to include activities “outside the realm of a traditional curriculum,” the court held that a nonprofit educational program for families, including those recovering from addiction, was a protected educational use. 1994 WL 16193868, at *2 (Mass. Land Ct. 1994).
Recently, in Spectrum Health Sys., Inc. v. City of Lawrence, No. 2015-288-C (Essex Super. Ct.), the court granted injunctive relief to a substance-abuse counseling and education center. In a March 9, 2015 Order, the court held that the plaintiff was protected by the Dover Amendment, noting that “Lawrence is one of a handful of communities within the Commonwealth that is significantly adversely impacted by issues of the economy, crime and substance abuse (now, especially opiate distribution and use/overdosing),” and determined that “by statute, Spectrum has a right to now operate.” The court entered a further order on April 6, 2015, requiring the defendant to “now issue to the plaintiff . . . an occupancy permit/certificate for the use and occupancy of” the commercial property at issue.
Courts also have held that programs that include medication (the focus of the recent HHS initiative) qualify for Dover Amendment protection. See, e.g., Fitchburg Housing Auth., 380 Mass. 869, 873 (1980) (“[t]he fact that many of the residents of the facility . . . will be taking prescription drugs does not negate its educational purpose or make its dominant purpose medical.”). Likewise, the court in Spectrum Health Sys., Inc. v. Town of Weymouth, Civ. A. No. 06-12133-RWZ, 2006 WL 3487030 (D. Mass. Dec. 4, 2006) granted injunctive relief to a provider seeking to operate a MAT program. The court determined that the program was “likely to prevail on the merits” on its claim that the municipality acted in violation of the Dover Amendment by refusing to issue building permits. The court ordered the municipality “to immediately allow Plaintiff . . . to operate the subject program.” See Order of December 7, 2006.
A similar ruling was made where a nonprofit corporation sought to site a MAT program in a commercial (and not medical) district. In Spectrum Health Sys., Inc. v. City of Haverhill, Civ. A. No. 2014-130-B (Essex Super. Ct.), by order dated January 31, 2014, the court endorsed an agreement whereby the municipality would issue the certificate of occupancy and the provider agreed to certain terms and conditions regarding the operation of the program. The order stated that the agreement was reached “after a full hearing by the Court, in which the Court advised that there was a likelihood of success on the merits of Plaintiff’s case and that the City of Haverhill potentially could face a sizable judgment of damages should the Plaintiffs prevail.”
The issue of whether a purpose is predominantly educational is often contested and may implicate disputed issues of fact. For example, in Regis College, the plaintiff proposed to construct a development at the college for older adults, which would require an application and interview process for admission. Regis College, 462 Mass. at 282. Residents would have academic advisors and “be required to enroll in a minimum of two courses per semester,” and could potentially “pursue degrees and certificates awarded to the plaintiff’s current student body.” Id. at 282-83. While the Land Court entered summary judgment for the defendant determining that the use did not meet the educational requirement, the Supreme Judicial Court vacated the decision, holding that there existed a dispute of fact regarding whether the program “will primarily operate in furtherance of educational purposes.” Id. at 281. The SJC noted that the “primary and genuine purpose” requirement ensures that “a party invoking Dover Amendment protection does so without engrafting an educational component onto a project in order to obtain favorable treatment under the statute.” Id. at 290. In other words, it is not sufficient to rely upon a stray educational purpose which is a minor element of an otherwise non-exempt project.
Municipalities May Subject Dover-Protected Programs to Certain Restrictions
While municipalities cannot interfere with the siting of substance-abuse programs protected by the Dover Amendment, “such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.” M.G.L. c. 40A, §3, ¶ 2. However, municipalities may not restrict qualifying Dover uses beyond these regulations. See e.g., Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 33-34 (1979) (“provisions of the Lenox by-law go well beyond the scope of bulk, dimensional, and parking regulations permitted to be imposed on educational uses by G.L. c. 40A, s. 3, and place the board in a position to act, as it did in this case, impermissibly to impede the reasonable use of the (institution’s) land for its educational purposes”) (quotations omitted).
2. The Federal Fair Housing Act
In addition to the Dover Amendment, the federal Fair Housing Act (“FHA”) is often invoked in disputes regarding a municipality’s opposition to the siting of a substance-abuse treatment program. The FHA establishes that it is unlawful to discriminate “in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. §3604(f)(1)(A). Further, the FHA provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by” the Act. 42 U.S.C. §3617. This statute protects both for-profit and nonprofit providers of services to disabled individuals, and also provides for recovery of attorneys’ fees where a violation is established.
Under the FHA, a plaintiff can assert three distinct causes of action: “intentional discrimination (or disparate treatment), disparate impact, or failure to make a reasonable accommodation.” South Middlesex Opportunity Council, Inc. v. Town of Framingham, 752 F. Supp. 2d 85, 95 (D. Mass. 2010); Easter Seal Soc’y of New Jersey, Inc. v. Township of North Bergen, 798 F. Supp. 228, 234 (D.N.J. 1992) (township’s misclassification of the use, among other evidence, strongly suggested discrimination). Discriminatory intent “may be established against [a] public entity by demonstrating” discriminatory treatment, for example, by applying “different rules to the disabled than are applied to others.” Arc of New Jersey, Inc. v. New Jersey, 950 F. Supp. 637 (1996) (D.N.J. 1996).
Further, any interference or delay in responding to an application for a local permit may constitute a separate violation of the FHA. Specifically, Section 3604(f)(3)(A) states that “discrimination includes … a refusal to permit … reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.” Case law highlights that municipalities may not impose artificial obstacles to the siting of a facility providing services to the disabled, including the imposition of delay. By way of example, in South Middlesex, 752 F. Supp. 2d at 89, nonprofit educational corporations operating residential substance abuse treatment programs sued when, in response to a proposed relocation within the Town, the plaintiffs “encountered resistance from some of the residents and local officials” over a period of years. The court determined that discrimination under the FHA “includes delays in issuing permits that are caused in part by discriminatory intent, even if the permits are ultimately granted,” and stated that “[t]his case involves not only evidence in the record indicating delays, but also communications by the Defendants linking such delays to the nature of the projects and their residents.” Id. at 97-98. Accordingly, the court denied the defendants’ motion for summary judgment, finding that “there is sufficient evidence in the record to raise a dispute as to whether discriminatory action was taken.” Id. at 98.
Most recently, the Second Circuit reached a similar result in Mhany Mgmt, Inc. v. County of Nassau, No. 14-1634, 14-1729, 2016 WL 1128424 (2d Cir. Mar. 23, 2016). A non-profit housing developer and several residents alleged that the governmental defendants had re-zoned parcels of county-owned land to prevent the construction of low- and middle-income housing as part of a long-standing discriminatory policy to exclude racial minorities. The court determined that the defendants’ decision to re-zone was made with discriminatory intent and “was a knowing response to the vocal and racially influenced opposition among [defendants’] citizenry.” Id. at *19. The court held that “the district court was entitled to conclude . . . that something was amiss here, and that [defendants’] abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race-based animus.” Id. at *24. Importantly, there was no requirement to establish that the governmental officials were themselves motivated by racial discrimination where they acted in “acquiescence” to the discriminatory objections from residents. The same principle applies in the context of Fair Housing Act liability for discrimination on the basis of disability or handicap.
Reasonable Accommodation Requirement
The FHA also establishes that it is a “discriminatory housing practice” to refuse to make
reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.
42 U.S.C. §3604(f)(3)(B). When a municipality refuses to make a reasonable accommodation in the implementation of its zoning “rules,” “policies,” or “practices,” the municipality violates the FHA. Oxford House v. Town of Babylon, 819 F. Supp. 1179, 1185 (E.D.N.Y. 1993).
It is settled law that a required reasonable accommodation may take the form of an exception to a zoning ordinance. As the First Circuit noted in Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 270 n. 22 (1st Cir. 1993), “compliance with the zoning ordinances should be ‘waived’” as a reasonable accommodation. Similarly, the court held in Oxford House, 819 F. Supp. at 1186, that the failure to provide a reasonable accommodation is per se “discriminatory conduct” under the FHA, and stated:
Because one of the purposes of the reasonable accommodations provision is to address individual needs and respond to individual circumstances, courts have held that municipalities must change, waive, or make exceptions in their zoning rules to afford people with disabilities the same access to housing as those who are without disabilities.
An accommodation is “reasonable,” and hence required under the FHA, if it
does not cause any undue hardship or fiscal or administrative burdens on the municipality, or does not undermine the basic purpose that the zoning ordinance seeks to achieve.
Id.; see also Oxford House v. Township of Cherry Hill, 799 F. Supp. 450, 462 n. 25 (D.N.J. 1992) (“‘Reasonable accommodation’ means changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual”).
By invoking the robust protections afforded by the Dover Amendment, Fair
Housing Act and other civil-rights statutes, attorneys can assist those on the front lines of substance-abuse treatment and prevention. While municipalities are empowered to impose reasonable regulations addressing the uses specified in the Dover Amendment, the proposed siting of a qualifying use cannot be derailed or delayed no matter how vociferous the opposition from neighboring residents or businesses. This set of legal protections constitutes a critical tool in promoting the availability of services for those suffering from the scourge of addiction.
 An Act relative to substance use, treatment, education and prevention, Chapter 52 of the Acts of 2016 (March 14, 2016).
 While the Dover Amendment does not include an attorneys’ fee provision, applicable civil rights statutes do. As a result, for example, the City of Pittsfield paid $100,000 in attorneys’ fees to a nonprofit corporation after initially refusing to permit a substance-abuse treatment program to operate. See “Taxpayers to pay for $100K clinic settlement,” Berkshire Eagle, August 14, 2012.
Paul Holtzman, a partner at Krokidas & Bluestein LLP, focuses on employment, civil rights and litigation matters, including discrimination, harassment, retaliation and whistleblower claims. He also serves as a mediator and arbitrator.
Jill Brenner Meixel, a partner in Krokidas & Bluestein LLP’s litigation group, represents for-profit and non-profit entities and individuals in commercial, employment, real estate and general litigation matters.
Attorneys Holtzman and Meixel have represented social service providers including substance abuse programs in challenging municipal obstacles to siting.
A Fairer Approach in Addressing the Opioid Epidemic: Recent Changes to the Law Regarding Involuntary Commitments for Alcohol and Substance Use Disorders under M.G.L. c. 123, § 35Posted: July 13, 2016
The opioid epidemic, in Massachusetts and nationwide, is a public health crisis demanding the attention and resources of all facets of government. One tool that has seen substantially increased usage is M.G.L. c. 123, § 35 (“Section 35”), which permits involuntary commitment of persons with alcohol or substance use disorder for treatment of up to 90 days if a court finds that they present a likelihood of doing serious harm to themselves or others. A petition under this section often accompanies an arraignment on criminal charges related to substance use, although not every individual subject to a Section 35 petition also faces criminal charges. The increase in usage has also spurred increased attention to the standards and processes that should apply to proceedings under Section 35. The involuntary commitment of women without any criminal charges to a correctional facility (MCI-Framingham) for treatment has been the focus of the most criticism and concern, including in articles in this Journal.
In response to the scrutiny, the Legislature and courts alike have recently updated and clarified the law. First, in July 2015, the Trial Court promulgated Uniform Trial Court Rules (“Uniform § 35 Rules”) to govern Section 35 commitment proceedings, which Rules went into effect February 1, 2016. Second, this past November, the Supreme Judicial Court issued its decision in In the Matter of G.P., “concerning the operation of § 35 as well as the … uniform § 35 rules.” 473 Mass. 112, 113 (2015). Third, in January 2016, the Legislature passed House Bill 3956, signed into law as Chapter 8 of the Acts of 2016 and effective April 24, 2016, which specifically amended Section 35 to bar sending women without criminal involvement to state prison for treatment. Finally, House Bill 4056 (“Opioid Bill”), passed and signed into law in March 2016, made one additional small change, extending the warrants for arrest under Section 35 for up to 5 business days. Once these changes are fully implemented, many of the previous concerns relating to Section 35—including the inherent limitations of the court system as a mechanism to access treatment services; the increasing number of individuals, in particular women, who are civilly committed to state prisons for treatment; and need for greater uniformity in commitment hearings—should be allayed. This article addresses the primary changes and clarifications made as a result of this recent court and legislative action.
First, as the title of this article suggests, the definitions in Section 35 were updated. In order to reflect the current, clinical understanding of the underlying disorder, the terms “alcoholic,” “substance abuser,” and “addict” were replaced with “a person with an alcohol disorder, substance use disorder, or both.”
Second, and most celebrated, under amended Section 35, women without criminal convictions may no longer be sent to MCI-Framingham for treatment when no beds at other facilities are available. To implement this reform, a total of forty-three new beds have been designated for women at Taunton State Hospital and Lemuel Shattuck Hospital to cover the estimated additional need. Under a new provision, however, a judge may evaluate the need to commit an individual to a secure facility “as the only appropriate setting for treatment” (often based on risk of violence)—men to MCI-Bridgewater and women to an as yet to be designated facility approved by the Department of Mental Health or the Department of Public Health.
Third, to standardize and expedite hearings, the new Uniform § 35 Rules clarify several procedural points. When a petition is first filed, the court must make an initial assessment to determine: 1) whether a proper party under the statute has made the filing and there exists a reasonable basis to believe the standard can be met; and 2) whether the respondent, i.e., the individual subject to the petition, is present and, if not, whether that particular court is the best venue to hear the petition.
Notwithstanding that individuals are increasingly looking to “section” themselves to access treatment when other treatment resources are unavailable or inadequate, under Section 35, an individual may not file a petition on his own behalf. Nevertheless, if the court determines that there is a strong basis for a petition, the court may ask a police officer or court official (often a probation officer) to step in as the statutorily qualified petitioner. Once the court finds both a reasonable basis for the petition and a proper petitioner, the petition may not be withdrawn or dismissed without leave of the court. This restriction against voluntary termination recognizes the public health and safety concerns underlying Section 35 proceedings and may help address the problem that occurs when family members or other petitioners develop cold feet as a result of pushback they may receive from a reticent respondent.
Under the second inquiry, if the respondent is present in court, the hearing must go forward without delay in that court (and bail should be set if the respondent is also arraigned on criminal charges). There are no venue restrictions for Section 35 petitions based on residency or otherwise, and adult hearings may proceed in juvenile court and vice versa. This frees petitioners to go to the court nearest to where they are able to locate the respondent, the court where criminal charges are pending, or the court nearest to where the petitioner may live or work (particularly where the petitioner is a treating physician or police officer).
When the respondent is not present at the time the petition is filed, the court may evaluate whether it is the most appropriate court to maintain the petition, and may issue a summons or, more frequently, a warrant for the respondent’s apprehension and return to that court during court hours only. The new Opioid Bill extended the time that the warrant may be returned from three to five business days. When a respondent is located far enough away from the originating court such that travel there during court hours is not practicable, officers may instead take the respondent to the nearest court, which can seek to have the petition transferred to that court. The Uniform § 35 Rules also clarify that the petitioner need not be present for the hearing to go forward (or she may appear remotely). This is helpful where a petition must be transferred to another court but the petitioner is unable to timely travel to the new court, as well as in those cases where the petitioner may be an on-duty treating physician who cannot leave the hospital.
Finally, in light of the respondent’s liberty interests at stake, in In the Matter of G.P., the Supreme Judicial Court clarified the standards for involuntary, civil commitment under the statute. The two primary rulings in the case establish that the appropriate standard of proof is clear and convincing evidence and that substantially reliable hearsay is admissible. This holding make Section 35 hearings analogous to probation violation hearings—a familiar standard for those in the criminal justice system.
The Court also addressed the type of evidence necessary to sustain a finding of clear and convincing evidence of likelihood of serious harm directly resulting from alcohol and/or substance use. Such risk can be established by demonstrating a substantial risk of physical self-harm, harm to others, or by showing that the respondent’s judgment is impaired to such a degree that there is a very substantial risk of physical impairment or injury. Each of the three methods also requires a showing of imminence of harm, which for purposes of Section 35 means not that the risk of harm must be immediate, but rather that it must materialize in the reasonably short term—meaning days or weeks rather than months. The Court elaborated on the types of evidence which would credibly support such an imminent risk: specific threats, proximate in time or numerous in nature, with the seriousness of the threats or past harm carefully weighed. Where a risk of harm to others is alleged, it must be of a substantial level of force and intensity to be categorized as “violent behavior” or “serious physical harm” under the statute. A simple pushing of another out of the way, for example, is not sufficient.
Under the third method (impaired judgment), the Court explained that the type of harm that may suffice was akin to an inability of the respondent to treat an injury or medical condition (e.g., failure to take prescribed medication or obtain regular dialysis) or a risk due to extreme weather conditions, and an inability of the respondent’s “community” to adequately address the risk. The ability of the respondent’s community to provide protection would likely be lower where an individual is homeless or living only with elderly parents or small children. A risk of overdosing may be sufficient under this prong, but only where “strong and specific evidence [is] presented that the risk of overdosing is indeed imminent and the degree of probability she will do so is high.” In the Matter of G.P., 473 Mass. at 129 n.23. A recent nonfatal overdose would likely satisfy this prong.
Both In the Matter of G.P. and the Uniform § 35 Rules address and protect a respondent’s right to present independent medical evidence and to appeal any commitment, allowing for both motions to reconsider and expedited review on appeal.
These recent changes bring consistency, transparency, and increased fairness to Section 35 proceedings. And with the additional dedicated Section 35 treatment beds allocated for women, increased fairness also means access to meaningful treatment and rehabilitation resources.
Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She previously practiced business litigation, clerked for the Ninth Circuit Court of Appeals, and graduated Order of the Coif from UCLA School of Law. This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.
At the foundation of my campaign for Attorney General were the values I learned from the colleagues, mentors, and organizations I worked with throughout my legal career – a belief in the power and the possibility of the law, and of a lawyer’s work. When I was elected, I pledged to be the people’s lawyer. Today, my office stands ready to live up to that pledge and to fight for and protect all Massachusetts residents.
The issue front and center for me and my team right now is the opioid and heroin epidemic. It’s an unprecedented public health crisis unlike anything we’ve seen before.
Addiction is a disease that does not discriminate. It affects people from all walks of life.
Four out of five heroin users report having started with prescription drugs. Whether it’s the son of a high school football coach who injured his knee or the brother who broke his wrist while serving in the Navy, I’ve heard hundreds of stories from people struggling with this disease.
In a recent report, the Department of Public Health estimated that more than a thousand people in Massachusetts died from opiate-related overdoses in 2014 alone. This represents a 33 percent increase in overdose deaths in the Commonwealth since 2012.
My office is aggressively pursuing a multi-pronged approach to address this epidemic. We’re looking at all the practices that got us here – from pharmaceutical marketing, to overprescribing, to pharmacy dispensing, to insurance coverage.
We’re investigating sudden increases in the price of Narcan, a life-saving drug that stops overdoses, and recently worked with the Massachusetts Legislature to set up a Narcan bulk purchasing fund, so first responders can more affordably buy the drug.
We’re working to remove barriers to treatment and help ensure access to high quality care for opioid addiction. In April, we sued a drug treatment center we believe was seeking to profit off this epidemic by unlawfully charging MassHealth patients in cash for medication-assisted treatment. In May, we indicted a Hyannis doctor who we allege was illegally prescribing opioids to patients with known addictions. And we are currently in the middle of investigating several other medical practices for similar unlawful and fraudulent activity.
At the same time, we need real, meaningful reforms in the criminal justice system to address the fact that the vast majority of people appearing in our criminal courts and in our correctional facilities present with addiction and mental health challenges. Here a few of the reforms that I support.
It’s time to eliminate mandatory minimums for certain drug crimes. What some people need is a treatment bed, not a jail.
According to the Centers for Disease Control, 80 percent of inmates in correctional facilities have substance abuse issues. Here in Massachusetts, the numbers appear to be just as high. The Suffolk County Sheriff reports that 85 percent of the inmates in his custody are committed for issues stemming from substance abuse.
Incarceration alone is not solving this epidemic, and it is very costly. We spend approximately $47,000 a year to house each inmate in our Department of Corrections.
My office is committed to engaging in conversations with stakeholders and the Legislature and will play an active role in the Massachusetts Sentencing Commission that was reestablished last year to evaluate sentencing structures.
I also support a thorough review of how Massachusetts currently spends its correctional dollars, with an eye toward keeping at-risk young people in school, investing in reentry programs and creating opportunities for job training.
We need to shift the lens by increasing our focus on prevention, intervention and treatment, reducing barriers for those coming out of correctional facilities, and updating our statutes to avoid disproportionate punishment. And we need to work together to address the disease of addiction.
As the people’s lawyer, there is no challenge too big or too complicated to take on. It is my duty to serve and protect the people of Massachusetts and I will do so by tackling this epidemic using all of the resources made available to me. I ask you to join me in this fight.
Maura Healey is the first new attorney general of Massachusetts in eight years. A former prosecutor in the Office of the Attorney General, Attorney General Healey served as Chief of the Civil Rights Division and directed the Public Protection & Advocacy Bureau and the Business & Labor Bureau. She is well known for her work in leading the nation’s first successful challenge to the Defense of Marriage Act (DOMA).