JURIST Guest Columnist Lauren A. Rousseau of Western Michigan University Thomas M. Cooley Law School discusses the comprehensive legislation passed by Congress to address the opioid epidemic...
Earlier this month, Congress sent a sweeping legislative package aimed at curbing the opioid epidemic to President Trump’s desk for signature, and the President has said he intends to sign it. Despite the increasing rancor that has poisoned so much our political discourse, the Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act (the SUPPORT Act) sped through Congress, winning approval by a vote of 393 to 8 in the House on Sept 28, and 98 to 1 in the Senate on October 3. Unlike most of the hot-button issues facing Congress today, the opioid epidemic is a truly bipartisan issue. Democrats and Republicans agree that government action is required to stem the tide of overdose deaths that reached more than 72,000 in 2017. More than two-thirds of those overdose deaths were due to opioids, including prescription pain pills, heroin, and fentanyl.
The bill was sent to the President’s desk approximately one year after he declared the opioid epidemic a Public Health Emergency. It includes 72 separate proposals sponsored by legislators in both houses of Congress, many of whom are up for re-election next month. Polls indicate that voters view the opioid crisis as a serious problem and believe the federal government should be doing more to combat it.
The SUPPORT Act is extremely broad. It “creates, expands and reauthorizes programs and policies across almost every federal agency.” Among other things, it reauthorizes funding for the 21st Century CURES Act, which provided $500 million per year to states to combat the opioid crisis. It also provides support in the following areas:
Access to Treatment. It is estimated that over 20 million Americans are currently struggling with substance use disorder. Not surprisingly, communities are having trouble finding enough treatment beds and trained addiction professionals to serve the need. Moreover, addiction has historically been treated less favorably by private insurers and Medicaid/ Medicare programs than other chronic diseases. Although such disfavored treatment is unlawful, there are reported cases of insurance companies refusing to cover costs of necessary care. These issues contribute to the fact that only one in ten people who need addiction treatment actually receives it.
- Increased access to inpatient rehab facilities: Under current law, treatment centers with more than 16 beds are not permitted to bill Medicaid for residential services, a situation which severely limits the number of beds available to low-income individuals. The SUPPORT Act repeals the 16-bed Medicaid rule for five years, opening these facilities up to patients needing addiction treatment and permitting stays of up to 30 days. It also expands the availability of Medicare dollars to treat opioid use disorder.
- Ensuring adequate treatment services. The SUPPORT Act requires federal review of addiction treatment facilities to assess adequacy of treatment and funding needs. It also requires federal agencies to provide information to Congress regarding insurers who are noncompliant with coverage requirements for addiction treatment.
- Expansion of Addiction Treatment Workforce: The SUPPORT Act provides a student loan repayment program for addiction treatment professionals working in areas hardest hit by drug overdoses, and where there is a shortage of treatment professionals.
- Hospital Emergency Rooms: Too often, when an addicted person overdoses and ends up in a hospital emergency room, he is stabilized and released with nothing more than a list of phone numbers for treatment programs. And too often, the person fails to follow up with the listed providers, goes back to using, and overdoses again. The SUPPORT Act seeks to address this by offering grant money for the development of protocols that will provide a bridge from the emergency room to addiction treatment.
Access to Opioid Addiction Medications
- Opioid-substitution medications such as buprenorphine (Suboxone) and methadone are considered essential tools for the treatment of opioid use disorder, but these medications are often stigmatized among treatment professionals and the recovery community as “trading one addiction for another.” This stigma exists despite multiple studies that show better results, in terms of treatment retention, relapse avoidance, and mortality, than most abstinence-based programs. Federal law requires physicians, physician assistants, and nurse practitioners to undergo special training in order to prescribe buprenorphine, and limits the number of patients each prescriber can have. The SUPPORT Act seeks to increase access to buprenorphine by allowing more types of health care practitioners to prescribe it, and by providing grant money to encourage newly graduated physicians to obtain the training.
- Naloxone, commonly known by its brand name “Narcan”, is a drug used to reverse opioid overdoses. It is safe to use, non-addictive, and can be easily administered. In an overdose situation, seconds can mean the difference between life and death, so first responders such as police officers are increasingly being equipped with the drug. The SUPPORT Act expands a program that encourages first responders to carry and use naloxone.
Sober Housing and Recovery Support Services
- “Recovery homes” provide housing for people in early recovery where they can gain strength in their sobriety. Unfortunately, such homes are subject to few regulations in most states, and this can create situations ripe for abuse. Further, the cost of recovery housing is generally not covered by private or public insurance, which can limit access.
- The SUPPORT Act requires the Department of Health and Human Services to issue best practices for operating recovery housing, and to assist those recovering from opioid addiction with housing costs. The Act also offers support for a variety of recovery support services, as well as grants for programs to help recovering people transition to independent living.
- Comprehensive Opioid Recovery Centers: The SUPPORT Act provides grant funding for the creation of centers that will provide a full range of treatment and recovery services, including medication-assisted treatment, recovery housing, job training, counseling, and peer recovery support services. The Act further supports the expansion of telemedicine to reach rural and other areas where addiction treatment resources are limited.
Enforcement and Prevention
- Cutting Off the Flow of Fentanyl: The opioid epidemic has progressed through three waves, each driven by a different type of opioid. The first wave was driven by prescription pain pills like Vicodin and OxyContin, which caused the majority of opioid overdose deaths from 1999 to 2010. The second wave began in 2011, as physicians began to decrease opioid prescribing and opioid addicts migrated to heroin, leading to a surge in heroin overdose deaths from 2011 to 2015. In 2013, the third wave began as synthetic opioids like fentanyl flooded the market. Fentanyl is much stronger than heroin – only a few grains can cause overdose in those without opioid tolerance. In 2013, there were approximately 3000 deaths due to fentanyl; that number skyrocketed to nearly 30,000 in 2017.
- Much of the fentanyl entering the United States is coming from China through the postal service. The SUPPORT Act imposes new requirements on federal agencies, including the Post Office, to help stop the influx of fentanyl at the border, and provides agencies with new tools to improve detection and testing at the border.
- Reducing Opioid Prescribing. The SUPPORT Act provides increased penalties for drug manufacturers and distributors related to the overprescribing of opioids. It also provides grants for education and training of health care professionals on proper pain management, the dangers of opioid misuse, and early warning signs of opioid use disorder. Further, the Act provides support for research and development of new, non-opioid pain relievers.
- Youth Programs: Prevention is an important part of curbing overdose deaths. The SUPPORT Act requires the Department of Health and Human Services to disseminate best practices for youth prevention, and provides grant money for drug education programs for youth and young adults, including funding for collegiate recovery programs. It also provides support for children at risk of entering foster care, or in foster care, as a result of a parent’s addiction.
The breadth of the SUPPORT Act is encouraging, as it demonstrates the federal government’s awareness of the many factors contributing to the overdose crisis. On the other hand, some argue that it spreads too little money across too many policies and programs; a more targeted approach providing increased funding for fewer high-priority items might be more successful.
Most of the funding included in the new legislation consists of grant authorizations, not guaranteed dollars. Congress will need to appropriate money to fund the grant authorizations through spending bills. So far this year, Congress has appropriated approximately $8.5 billion for opioid-related programs, but there is no guarantee of funding for future years. Experts say that turning the tide on the epidemic will require much more money than this, and some have suggested that even $100 billion over five years – which is comparable to the amount the United States spends on HIV/AIDS – may not be sufficient.
In addition to the lack of appropriated funds, much of the new funding authorized by the SUPPORT Act is for pilot programs, which means that it is of limited duration. This can create a disincentive for eligible organizations to invest time, energy, and resources to develop programs when they don’t know if there will be money to continue the programs in the long term.
Finally, some critics are disappointed that a popular provision in the House bill didn’t make the cut in the final compromise package – a provision for the responsible sharing of a patient’s addiction treatment information. More than 40 years ago, regulations were enacted that provided for heightened protection of a patient’s addiction treatment information, in recognition of the stigma associated with the disease and the need to protect patients from the possible negative consequences of disclosure. Unfortunately, these restrictive regulations can result in a patient’s physician not being fully informed about his patient’s addiction treatment history, which can undermine the effective coordination of patient care.
Despite its limitations, there is no doubt that the SUPPORT Act is a significant legislative achievement. While we should celebrate this breakthrough legislation, we must realize that it will not, by itself, carry us out of our current addiction crisis. Our work in conquering America’s opioid epidemic is far from done.
Lauren A. Rousseau is a professor of law at Western Michigan University Thomas M. Cooley Law School. She is President of the Northwest Wayne County Chapter of Families Against Narcotics, and has spoken and written extensively on the subject of addiction and the opioid epidemic. In 2016, she was honored as one of Michigan Lawyers Weekly’s 2016 Women in the Law in recognition of the work she has done in the area of addiction treatment, education, and advocacy.
Suggested citation: Lauren A. Rousseau, Will Congress’s Omnibus Opioids Bill Turn the Tide on America’s Drug Epidemic?, JURIST – Academic Commentary, October 13, 2018, http://jurist.org/forum/2018/10/lauren-rousseau-opioids-bill-drug-epidemic.php
This article was prepared for publication by Ben Cohen, a JURIST Section Editor. Please direct any questions or comments to him at email@example.com
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