Legal Challenges for Substance Abuse Treatment During Disasters

Natural disasters and disasters originating from humans present immediate and long-term challenges to the health of affected communities. During the past decade, which included the attacks of September 11, 2001, and Hurricane Katrina in 2005, the U.S. preparedness infrastructure has been augmented and improved. Much of this work has focused on addressing disasters' physical impacts, including communities' needs for shelters and medical care for bodily injuries. Although vital, this progress often overlooks significant mental and behavioral health concerns that may arise during and after disasters. Recent studies have demonstrated the need to consider mental and behavioral health care in emergency planning efforts (1,2).

Certain groups with mental and behavioral health conditions may be especially vulnerable during and shortly after disasters. Individuals in treatment for substance abuse are one such vulnerable group. Substance abuse treatment may include detoxification (medically supervised withdrawal), treatment, and relapse prevention. Persons receiving treatment require access to licensed health care professionals and providers with prescribing authority. In 2007, 23% of patients receiving substance abuse treatment in the United States were given medication for treatment of opioid addiction (3). Several types of behavioral therapies are also used to treat substance abuse, including individual and group counseling and cognitive-behavioral therapy. Most patients receive treatment in outpatient settings, including in opioid treatment programs (OTPs) (3). Other patients utilize residential treatment programs.

Treatment for substance abuse has received relatively little attention within the preparedness community (4). Yet researchers have found that substance abuse treatment programs and their patients experienced major disruptions after the 9/11 attacks and Hurricane Katrina. For example, Hurricane Katrina caused the immediate closure of all substance abuse treatment services in New Orleans (5). New York City OTPs reported considerable difficulties verifying doses and medication take-home privileges for individuals who could not access their regular programs after the 9/11 attacks (6). Because persons addicted to drugs may be subject to the protections of the Americans With Disabilities Act, accommodating them during emergencies has additional importance (7).

Substance abuse treatment during disasters

Disasters present distinct challenges for individuals in substance abuse treatment and their providers, raising various legal issues. In its All-Hazards Response Planning for State Substance Abuse Service Systems, the Substance Abuse and Mental Health Services Administration (SAMHSA) identified several populations as being especially vulnerable during and after disasters: individuals who rely on methadone and cannot access their program, substance abuse treatment patients who require intensive services, individuals in recovery who worry that they may relapse as a result of the disaster, and persons receiving inpatient substance abuse treatment who cannot easily access other services (8). Recent disasters have highlighted difficulties faced by these groups.

Shortly after Hurricane Katrina, some shelters were hesitant to serve displaced persons who had been receiving substance abuse treatment, making it difficult for these individuals to maintain uninterrupted care (4). In other instances, shelters were ill equipped to address substance abuse treatment, and “pressing needs for specialized services for drug dependence” were reported (2). Finally, some individuals experienced disruptions in their methadone maintenance therapy, which caused withdrawal symptoms, such as diarrhea. Because shelter staff lacked substance abuse treatment expertise, they interpreted this as a possible disease outbreak and sought to quarantine these persons (4). Individuals also have reported that even if they successfully accessed substance abuse treatment services, they had unmet needs for postdisaster mental health services (6). A study of New York City substance abuse treatment programs affected by the 9/11 attacks concluded that “all drug abuse patients must be considered at risk for mental health problems even if they did not show mental health symptoms before [the disaster]” (6). After Hurricane Katrina, substance abuse treatment staff in Texas noted that they lacked specialized training to interpret displaced individuals' escalating stress, bereavement, and exacerbated mental health conditions (4).

Given the need to provide substance abuse treatment and mental health services, a variety of licensed health care professionals, including counselors, physicians, nurses, and psychologists, are required to meet surge capacity during and after disasters (9). Shortly after a disaster, these licensed professionals may be asked to provide services in states where they are not licensed to practice. The federal and state governments have passed a variety of laws to allow out-of-state practitioners to provide care temporarily during emergency responses. For example, all 50 states have passed the Emergency Management Assistance Compact (EMAC), which allows licensed health care professionals to practice temporarily in a state facing a disaster. However, EMAC's provisions are limited to professionals who work for state or local governments. Numerous states have adopted additional emergency laws to facilitate licensure portability among private sector health care professionals and among volunteer health care providers (9). Many of these emergency laws limit civil liability among health care professionals who provide assistance during and shortly after disasters.

Although emergency laws help affected states meet surge capacity, they may raise challenges for a key group of professionals with expertise in substance abuse treatment, namely substance abuse counselors. This can be attributed to significant variation in how states license or otherwise regulate substance abuse counselors (10). States may define the nonemergency scope of practice for all substance abuse counselors or may have several categories of certified or licensed substance abuse counselors, with different permitted scopes of practice. For example, some states allow certain unlicensed substance abuse professionals (for example, alcohol and drug counselor technicians or interns) to provide drug treatment services (such as screening and assessment) only if they practice under the supervision of a licensed substance abuse counselor (11–13). If a substance abuse professional resides in a state that allows him or her to practice only under the supervision of a licensed counselor and the substance abuse professional would like to provide care during a disaster in another state, must he or she first establish a supervisory relationship with a licensed substance abuse counselor in the affected state? A related situation arises when a substance abuse professional from a state with less stringent supervisory requirements deploys to a state that requires stricter supervision. Is the substance abuse professional now required to practice under supervision in the affected state, even if not subject to supervision in his or her home state? In general, emergency laws do not contain specific provisions regarding licensure waiver or reciprocity for substance abuse counselors, leaving the emergency status of these health care professionals unclear.

These legal questions raise important concerns regarding the potential liability of substance abuse counselors who provide care during emergency responses. Because emergency laws require health professionals to act within their scope of practice—as established by their state-specific licensure or credentialing—substance abuse counselors must know how this scope will be defined and executed during an emergency response in another state. Otherwise, substance abuse counselors risk violating an emergency law's terms when they deploy to an affected state, which could jeopardize any limitation of liability for their response work.

Challenges for opioid treatment programs

Because they are subject to strict federal and state regulations, OTPs may face a variety of legal challenges during disasters. In nonemergency situations, federal regulations establish procedures for admitting individuals into OTPs (14). In addition, federal regulations require licensed health care professionals or their supervised agents to prescribe or dispense an OTP's opioid agonist treatments (such as methadone and buprenorphine) (14). Doses vary among patients and may change over time. Although OTPs generally provide medication to patients on a daily basis, to be ingested under supervision, federal rules grant OTPs discretion to give certain patients take-home medications. For example, during an individual's first 90 days of treatment, an OTP may provide a take-home dose once per week (14). After one year, patients may receive a two-week supply of medication (14). Unless explicitly waived or altered, state and federal OTP regulations remain in place during disasters.

Shortly after the 9/11 attacks, OTPs in New York City experienced significant difficulties meeting regulatory requirements. Many patients could not access their usual OTP, forcing them to seek treatment at other OTPs as “guest” patients. OTPs reported problems verifying guest patients' methadone doses and making determinations of eligibility for take-home doses (6). Similar problems were reported by OTP programs in Texas, which received guest patients who were displaced from New Orleans after Hurricane Katrina. Guest patients at Texas OTPs often had no identification and could not prove they had been receiving treatment. Because of this, some OTPs did not provide methadone until individuals demonstrated withdrawal signs (4).

On learning of these regulatory compliance challenges, SAMHSA issued guidance for OTPs receiving individuals displaced by Hurricane Katrina. SAMHSA's guidance contained procedures for verifying individuals' identification, establishing proof of treatment, and ascertaining dosage information. The guidance explained that when these procedures could not be followed, “good medical judgment” should be used. The guidance emphasized the need to comply with federal regulations, particularly regarding provision of take-home doses to patients and documentation of treatment (15). This guidance was specific to Hurricane Katrina and did not constitute general emergency guidance from SAMHSA for OTPs.

Other legal concerns may arise for advanced practice nurses (APNs) and physician's assistants (PAs) working at OTPs during and after disasters. Emergency laws may allow APNs or PAs to provide care in an affected state through licensure reciprocity or waiver provisions. These laws, however, do not expressly address the supervisory or collaborative agreements that allow these health care providers to practice. For example, laws do not necessarily explain whether an existing collaborative agreement remains valid when an APN leaves the state during a disaster or if the APN must establish a new agreement with a physician licensed in the state to which he or she has been deployed.

Strategies for the future

Although a patchwork of federal and state laws may facilitate program referrals and substance abuse treatment during and shortly after disasters, numerous legal challenges remain. Emergency laws are ambiguous about the status of critical professionals, including substance abuse counselors, APNs, and PAs, who participate in emergency responses outside of their home states. State governments can act now, in advance of a disaster, to update or clarify emergency laws regarding supervisory requirements for substance abuse counselors, APNs, and PAs. This would allow these licensed health care providers to benefit from emergency legal provisions that limit liability by ensuring that they understand and act within their scopes of practice.

In addition, states should consider how existing, nonemergency laws may facilitate OTPs' provision of care during disasters. For example, federal regulations allow individuals to be placed in “interim treatment” when they cannot be placed in a comprehensive OTP in “a reasonable geographic area” within two weeks. Interim treatment remains regulated, but it provides some flexibility for OTPs that may be overwhelmed during a disaster and unable to comply with requirements to establish a treatment plan and provide counseling services to new patients (14). It is also important to bear in mind that delivery of substance abuse treatment may change during disasters, through the development of a crisis standard of care for mental and behavioral health services (16).

Finally, electronic repositories, such as SAMHSA's Digital Access to Medication system (17), which is in a pilot stage, could be fully developed to house individuals' substance abuse treatment information (including verification of treatment status and dosing information). Such information would help health care providers comply with relevant regulations and facilitate substance abuse treatment during disasters, particularly for displaced persons.

By recognizing the legal challenges—and potential solutions—for substance abuse treatment during and after disasters, policy makers, emergency planners, health care professionals, and other stakeholders can develop strategies to ensure that vulnerable individuals continue to receive needed care, even in exigent circumstances.