Over the last several years, there has been increased attention to establishing adequate withdrawal and treatment protocols for persons with substance use disorders in jails and prisons. Advocates are trying to increase the availability of medication for opioid use disorder (MOUD) within correctional facilities by bringing litigation and through the legislative process. This blog expands upon previous posts, a review of state legislative efforts and a discussion of factors that might influence legislative outcomes. This blog evaluates the state legislation that has already passed to provide MOUD in corrections, and reviews provisions that state legislatures should consider including in future legislative proposals.

MOUD coverage in both jails and prisons. Of the legislation passed in the 2017-2018 and 2019-2020 state legislative sessions, four bills require MOUD in both jails and prisons, three bills require MOUD only in jails, and one bill requires MOUD only in prisons. Legislation should ideally cover both prisons and jails. If legislation covers jails but not prisons, people who transfer to state prisons without MOUD may be forced into withdrawal from their medication, thereby increasing their overdose risk upon release. If legislation covers state prisons but not jails, their MOUD programs will fail to reach the broader population of people with substance use disorder who cycle through jails.

Providing all three forms of MOUD. Of the passed legislation in the 2017-2018 and 2019-2020 state legislative sessions, four bills provide for all three forms of MOUD, two bills provide for methadone and buprenorphine, and five bills do not specify the form of MOUD. The appropriate form of MOUD to use is a decision that should be made by the individual in association with their clinician. Thus, it is important that MOUD programs provide all three forms of MOUD. Notably, many facilities currently only provide access to naltrexone, but research has shown that this medication has the lowest success rate for initiation of the three forms of MOUD.

“No-deny” provisions. Only one of the bills examined in the 2017-2018 and 2019-2020 state legislative sessions includes a “no-deny” provision, while ten bills do not. A “no-deny” provision means that a correctional facility cannot take away MOUD from a participant in response to a disciplinary event or positive drug screen. This provision is important to insure that individuals with opioid use disorder receive treatment. There is no evidence that drug screens that result in punishment improve health outcomes for people receiving MOUD.

Appropriate screening of individuals for substance use disorder upon (or shortly after) intake. Only five bills examined in the in the 2017-2018 and 2019-2020 state legislative sessions specify for screening requirements, while six bills do not. Upon entrance to a correctional facility, individuals should be assessed promptly for substance use disorder. Withdrawal symptoms are at a minimum uncomfortable, and can be life-threatening. Further, incarcerated individuals may suffer from multiple conditions. Screening is especially important during the COVID-19 pandemic because the symptoms of COVID-19 infection can be similar to opioid withdrawal symptoms. Thus, correctional staff might not identify COVID-19 symptoms in individuals and may mistakenly assume the individual is experiencing withdrawal.

Collecting outcome data. Only three bills examined in the 2017-2018 and 2019-2020 state legislative sessions specify data collection requirements, while eight bills do not. Collecting outcome data, especially local data, can help evaluate MOUD programs, as well as build a case for continued investments in corrections-based MOUD programs. Any states that pass legislation, including pilot legislation, should continue to collect outcome data to determine the types of programs that are most effective to help individuals with opioid use disorder enter treatment, reduce overdoses, and lead to long-term improved outcomes for people who have been incarcerated.

Passing legislation to provide MOUD in corrections is an effective way to create state-wide change, with evidence-based specifications, such as “no-deny” provisions. However, fewer than half of the proposed bills include these or similar specifications. Some states may undertake a rule making process to provide these specifications, and similar provisions may also be included in jail or prison protocols. State policymakers should consider the model legislation developed by the Legislative Analysis and Public Policy Association in collaboration with the O’Neill Institute when introducing legislation in the future.

This table outlines the legislative parameters in states that have passed legislation on MOUD, and compares them against proposed model legislation. Massachusetts, Oklahoma, and Wisconsin have implemented pilot programs.

Madelyn O’Kelley-Bangsberg is a harm reductionist and a second-year law student, pursuing a Health Law and Policy concentration at Northeastern University School of Law.