Pennsylvania cannot discriminate against prospective foster parents receiving medical treatment for substance use disorder, under an agreement announced today by the U.S. Department of Health and Human Services’ Office for Civil Rights.
Substance use disorder is considered a disability covered by the federal Americans with Disabilities Act. The law protecting people with disabilities also applies to their rights to participate in federally funded programs, which include foster care and adoption.
The agreement stems from a complaint that the Northumberland County child welfare agency discouraged a woman from applying to become a foster parent based on her use of prescribed methadone to treat substance use disorder, according to the voluntary resolution agreement.
A federal government spokesperson said the complaint also alleges the local child welfare agency denied the parent in question without conducting a thorough assessment of the woman’s ability to successfully parent foster children.
“State, county, and local child welfare organizations must ensure that they have policies and practices in place that do not limit opportunities for people with disabilities to fully participate in their programs, including individuals in recovery from a substance use disorder,” Melanie Fontes Rainer, director of HHS’s Office for Civil Rights, said in a press release.
Federal law protects people taking certain prescribed medications approved by the Food and Drug Administration to treat substance use disorder, including buprenorphine, methadone and naltrexone. People who are actively using illegal drugs are not covered under the ADA protections.
The agreement announced today does not prohibit county child welfare officials from ruling out prospective foster parents eligible for these protections if there are concerns for childrens’ safety. But local authorities vowed to step up their diligence.
“Pennsylvania is committed to offering services and supports available to our residents in an accessible manner that is free of discrimination,” Val Arkoosh, secretary of the state’s Department of Human Services, said in the press release. “As the state agency overseeing our county-operated child welfare agencies, we must be sure we have clear policies and expectations to ensure our partners act in line with these values.”
Neither the state agency or the Northumberland Children and Youth Services Department responded to requests for additional comment.
“child welfare organizations must ensure that they have policies and practices in place that do not limit opportunities for people with disabilities to fully participate in their programs, including individuals in recovery from a substance use disorder.”— Melanie Fontes Rainer, director, HHS Office for Civil Rights
Pennsylvania has a county-run child welfare system, with the state Department of Human Services licensing and overseeing 67 county agencies.
From late 2019 to 2022, federal investigators reviewed Pennsylvania’s child welfare and nondiscrimination policies and procedures, training materials and civil rights monitoring data, interviewed witnesses and analyzed case records. While investigating the complaint, federal officials found “systemic concerns” with the state agency’s policies and practices to prevent discrimination against people with disabilities.
The investigation also found that neither counties nor the state had sufficient policies and procedures in place to protect the rights of people with disabilities in child welfare activities, a federal spokesperson said, though additional specific violations were not found.
In addition to prohibiting the state and county agencies from discriminating against individuals with federally protected disabilities, Pennsylvania now must develop new anti-discrimination policies that emphasize protections for people with substance use disorder. The policies will apply to public and private foster care and adoption agencies that receive federal funding.
Under the new agreement, the state must develop a system for active or prospective foster parents with disabilities to file grievances when they think their rights have been violated, and track and review requests for reasonable accommodations. It must also provide annual training to employees on these and other civil rights protections.
“Foster parents are critical to an effective child welfare system and promoting opportunities for qualified individuals to participate in federally funded programs serves an important public interest,” today’s press release states. The steps laid out in the agreement will prevent Pennsylvania from “imposing eligibility requirements that screen out individuals with disabilities because of treatment for substance use disorder.”
The agreement further clarifies that birth parents or caregivers with protected disabilities are guaranteed equal opportunities to preserve and reunify their families, and that safety requirements must be based on “actual risk” and not “mere speculation, generalizations, or stereotypes about individuals with disabilities.”
Northumberland County will be required to reach out to the woman who lodged the discrimination complaint to see if she is still interested in applying to be a foster parent. The government did not release her identity.
The Office for Civil Rights investigates complaints regarding discrimination in child welfare services based on race, national origin and disabilities, and has found that birth parents, children and prospective foster parents can all “encounter a wide range of discriminatory barriers” in the system. In 2020, the federal office entered into a similar agreement with West Virginia, after an aunt and uncle were denied the chance to adopt their nephew and niece due to one caregiver taking Suboxone to treat opioid use disorder.
“Americans who are successfully receiving long-term treatment for opioid use disorder can lead normal lives,” stated Alex Azar, former Health and Human Services secretary.
The federal agency will monitor Pennsylvania’s compliance with federal disability laws and the parameters of the agreement for two years, and will offer technical assistance.