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11.10.20

Medication-Based Treatment for Substance Use Disorder in Correctional Facilities: Factors Influencing the Enactment of Legislation

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This expert column was written by Madelyn O’Kelley-Bangsberg.

Across the country, correctional institutions are implementing medication for opioid use disorder (MOUD) programs in jails and prisons to save lives and money. However, barriers to further expansion of MOUD programs persist, including stigma and immediate costs. In 2018, only 1% of jails and prisons in the United States offered medication to people with opioid use disorder. Thus, in 99% of correctional facilities, incarcerated people with opioid use disorder undergo withdrawal, which has sometimes resulted in death. This blog expands upon a previous post which addressed the critical need for providing MOUD in correctional facilities, and reviewed state legislation passed and introduced in 2020. This post addresses the factors that might influence whether legislation passes, including whether a state has a unified correctional system; whether funding is appropriated; and whether treating substance use disorder among incarcerated populations is a priority for the state executive.  

A unified correctional system is one in which a state has jurisdiction over all correctional facilities within its borders, making it easier to coordinate MOUD resources. Six states have unified correctional systems — Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont. Of these, Vermont and Delaware passed comprehensive MOUD legislation and Rhode Island and Connecticut fund MOUD programs.

States without unified correctional systems may face greater hurdles to passing MOUD legislation. For example, in New York, legislation to provide MOUD in every state and county correctional facility was introduced, but funding was ultimately not included in the governor’s budget. Some county officials raised concerns about increased costs to local budgets if the legislation were to pass without a state appropriation. A compromise was sought to allow a limited exemption for counties that did not have adequate resources to provide MOUD, but the legislation ultimately failed.

Lack of funding for counties and municipalities remains a significant barrier to passage of legislation. In two states, Washington and Colorado, state legislators initially introduced bills requiring local jails to provide MOUD. But because these requirements were not funded by the state, the requirement was ultimately removed. The original text of the bill in Washington recognized that there are multiple funding sources for counties to draw from, and encouraged jurisdictions to “look towards alternative funding streams to help bridge gaps in resources, while specifically working with local county and city governments to best coordinate already established funding sources for incarcerated individuals.” However, at public hearings on the legislation, the bill was opposed as an “unfunded mandate” for Washington counties. The bill was amended and later passed, requiring only that county jails provide MOUD “subject to funds appropriated by the legislature, or approval of a section 1115 demonstration waiver from the federal centers for Medicare and Medicaid services.” A similar progression occurred in Colorado, in which a bill, as introduced, required county, state, and private correctional facilities to provide incarcerated individuals with MOUD. However, without funding, the bill was amended and later passed to “strongly [encourage]” correctional facilities to provide MOUD. As amended, these bills lack strong legal language, and are not likely to lead to the comprehensive implementation of MOUD programs across these states.

Without MOUD programs, counties may leave themselves open to litigation based on the American with Disabilities Act. The Americans with Disabilities Act protects people with substance use disorders from discrimination, and lawsuits have established that withholding medication from people with substance use disorder in correctional facilities is discrimination. According to Mark Cooke with the ACLU of Washington, “A jail would never be able to take someone’s insulin away. Counties cannot discriminate against people with substance use disorder because there is not funding.” Would county officials describe a requirement to provide insulin in jails as an unfunded mandate? Failing to provide MOUD in correctional settings leaves states like Washington and Colorado open to additional litigation.

Funding isn’t the only barrier to this legislation. Ohio Governor DeWine vetoed a bill requiring MOUD in correctional facilities, stating, “Provisions within this item would disrupt and interfere with evidence-based community programs, funding for specialized dockets, and forensic evaluation services that are long-standing and critical for the health and well-being of Ohioans engaged in the criminal justice system. Therefore, this veto is in the public interest.” This statement is not clear and may simply reflect the policy preference of a governor who does not believe the state should fund MOUD programs in correctional facilities. 

Passing legislation to provide MOUD in corrections is an effective way to prevent costly litigation and to create state-wide change. For example, advocates from the ACLU were working on potential litigation in New Hampshire when the governor signed a bill into law, preempting the litigation.

Each of the above factors that might influence the passage of MOUD legislation—whether a correctional system is unified, whether funding is appropriated for counties and municipalities, and whether treating substance use disorder among incarcerated populations is a priority of the governor—could be resolved with sufficient funding. This might require creative solutions. For example, New Hampshire funded its legislation with proceeds from settlements and judgments against opioid manufacturers and distributors. States may wish to follow New Hampshire’s lead and look for creative funding solutions to support this necessary legislation. States can also apply for federal funding sources such as from the Bureau of Justice Assistance. Securing funding for legislation to create MOUD programs in corrections will save lives in your jurisdiction. Additional resources are linked below for those interested in learning more.

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.

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Thematic Areas: Addiction & Public Policy

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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