Alcohol Use Disorder is a Disability According to the US DOJ: Mental Health Parity is Joined by ADA Enforcement?
It is a health policy wonk update
The Frontier Psychiatrists is a health-themed newsletter/podcast/absurdist media empire by Owen Scott Muir, M.D. Today, a health policy update!
The Americans with Disabilities Act created a better world. It created a world with curb cuts, ramps, and accessible websites for the visually impaired. It creates a world where the already disabled in some way can access the structures built for everyone—and it’s an insurance policy for everyone against disaster. Thanks to the ADA, even before you are in a wheelchair, you know the standards of our country mean that if you break your leg, you will still be able to go places and do things.
The most basic understanding of the ADA is as follows:
The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against people with disabilities in everyday activities. The ADA prohibits discrimination on the basis of disability just as other civil rights laws prohibit discrimination on the basis of race, color, sex, national origin, age, and religion. The ADA guarantees that people with disabilities have the same opportunities as everyone else to enjoy employment opportunities, purchase goods and services, and participate in state and local government programs.
America is a strange country, and one of its peculiarities is that making sure a better world happens is both a government function and, at the same time, also outsourced to private lawyers and the legal system. Anyone can sue anyone else for enforcement of the ADA. This has been quite the cottage industry. We are all deputized to bring claims under ADA, assuming we have standing. I wrote earlier this year about my prediction that ADA will be brought to bear in the fight for accessible mental health care.
In my hit article about the 9-0 decided Perez v. Sturgis decision, I noted the following:
Previously, families had no recourse to collect on damages for a violation of the law that occurred before their legal complaint. The current (IDEA) law exists to force payment going forward. The graveman of this case is that the IDEA statute doesn't say anything about other laws, only about its enforcement. And since it doesn't touch on those other laws, it doesn't prohibit them from being enforced. And “any other laws” means families can sue for damages.
Justice Gorsuch goes on to argue:
—Justice G-Dog.
…when it comes to claims for damages as a result of services that should have been rendered under the ADA.
And today, the DOJ provides more ammunition for my contention that Mental Health Disabilities—and the reasonable accommodations needed for people with those disabilities—are covered under ADA. They resolved their first discrimination action based on Alcohol Use Disorder:
This is the Justice Department’s first ADA settlement resolving a claim of employment discrimination based on alcohol use disorder.
“Close to 30 million Americans in our country have had an alcohol use disorder and many are entitled to protections under the Americans with Disabilities Act. Employees with alcohol use disorder, or other disabilities, should not have to pay for employer-required health assessments to document information about their disabilities,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “The Justice Department remains committed to ensuring that people with alcohol use disorder and other disabilities have equal opportunities in the workplace.”
So if alcohol use disorder is a disability…and it is an ADA violation to discriminate, it follows that reasonable accommodations are also due to those with alcohol use disorder…and it might follow other psychiatric disabilities.
What, one might ask, is a reasonable accommodation? The Department of Labor has our back:
Physical changes
Installing a ramp or modifying a rest room
Modifying the layout of a workspace
Accessible and assistive technologies
Ensuring computer software is accessible
Providing screen reader software
Using videophones to facilitate communications with colleagues who are deaf
Accessible communications
Providing sign language interpreters or closed captioning at meetings and events
Making materials available in Braille or large print
Policy enhancements
Modifying a policy to allow a service animal in a business setting
Adjusting work schedules so employees with chronic medical conditions can go to medical appointments and complete their work at alternate times or locations
So, one might argue that requiring health benefits like coverage for a medical condition requiring prior authorization and other additional steps for individuals with impairments in their ability to take those steps…is a policy problem for which one could request reasonable accommodations. No one puts the wheelchair access ramp at the top of the stairs and calls it accessible!
How about requiring people who have depression with pathological indecision1 and hopelessness to sustain themselves through failed trial after a failed trial of medication before getting access through their employer-provided benefits to definitive treatment like SAINT neuromodulation (79% remission of treatment-resistant depression that is available now, including in my office at Fermata).
The DOL already has extensive guidance on reasonable accommodations for mental health conditions.
This can go as far as:
Other Policies - Beverages and/or food permitted at workstations, if necessary, to mitigate the side effects of medications, on-site job coaches.
Having on-site job coaches seems much more expensive than ensuring health plans don’t already have illegal “fail first” policies around mental health treatments (we call those NQTLs in the policy wonk game).
More to the point, I would argue even your doctor has the right to reasonable accommodations when interacting with government-contracted third-party payers if they have a disability like ADHD.
The DOJ has put its dime down—discrimination based on AUD is covered under the ADA. The Supreme Court has made it clear that in domains where laws like ERISA are silent—damages from waiting for care delayed due to inaccessibility—remedies can be pursued under ADA.
GAME ON, people. GAME ON. An accessible game where we all can be sure that we will have access to the things we need if we develop a disability.
Bistas K, Tabet JP. Aboulomania, a Mental Disorder Characterized by Pathological Indecisiveness. Cureus. 2023 Jul 9;15(7):e41592. doi: 10.7759/cureus.41592. PMID: 37559848; PMCID: PMC10407977.
They forget to tell people if you mention a disability in an interview, there will be "some other reason" why you don't get the job...AA is a solid organization with success for those with alcoholism. In the end, people have to really want to quit or change their lives or nothing happens. Thank-you.