By Rachel Crumpler
During his 20 years in the field of substance use disorders, Eric Morse has seen countless patients forced off their medication-assisted treatment (MAT) — a treatment that’s often working — while incarcerated.
Morse is an addiction psychiatrist in Raleigh and president of Morse Clinics, which provides medications for opioid use disorder to approximately 1,800 patients at eight locations across the state. He said it’s about a weekly occurrence to have a patient get detained and face the dilemma of whether or not they will be able to continue MAT in jail.
Generally, the answer has been no. But the odds of continuation should be increasing now that the U.S. Department of Justice has gotten involved.
People getting MAT receive one of three U.S. Food and Drug Administration-approved medications — methadone, buprenorphine or naltrexone — along with counseling to treat opioid use disorder. This treatment option suppresses withdrawal symptoms, reducing drug cravings. MAT is considered best practice for treating opioid use disorder and has been proven clinically effective.
However, the use of MAT in jails across the state is inconsistent at best, North Carolina Health News has previously reported. The more common protocol is detoxification and withdrawal.
In North Carolina, at least 19 of the state’s more than 100 jails have some kind of program providing one or more medications for opioid use disorder, according to the state’s Opioid and Substance Use Action Plan Data Dashboard.
New guidance from the U.S. Department of Justice released in April, paves the way for MAT in jails to be accessible to, at least, individuals receiving the treatment in the community prior to incarceration. The DOJ guidance explains how the Americans with Disabilities Act (ADA), a federal law that covers all activities of state and local governments regardless of federal funding, protects people with opioid use disorder who are in treatment or recovery from discrimination in a number of settings, including correctional facilities.
Like saying ‘I just don’t have insulin’
“Our goal here is to ensure that people with opioid use disorders who are in treatment or who have completed treatment are not facing unnecessary and discriminatory barriers to recovery,” said Katherine Armstrong, an assistant U.S. attorney for the Western District of North Carolina, during an August webinar on providing MAT in jails.
Morse and others have been advocating for this MAT access and continuity of care for years. It’s a major shift that puts legal pressure on jails, which have been slow to adopt MAT, to provide medications to continue incarcerated people’s treatment. If they don’t, they could be open to liability and lawsuits.
“Eventually, you don’t have an excuse,” said Shuchin Shukla, a family physician focused on substance use at Mountain Area Health Education Center in Asheville who prescribes buprenorphine.
“Like you can’t say, ‘I don’t have a MAT program.’ That’s like saying, ‘I just don’t have insulin.’ You got to get insulin. This person is under your care. That is what a jail does,” he said. “It’s just like providing them with food and water. If you are a jailer and you had someone in your custody, even if they did a terrible crime, you’re liable to give them food, water and medicine.
“This is a medicine — treatment for substance use disorder.”
DOJ guidance applies to local jails
Shelly Weizman, project director of the Addiction and Public Policy Initiative at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center, said the recent guidance makes it “crystal clear” that opioid use disorder is considered a disability under the ADA.
According to the guidance, it is a violation of the ADA if a jail does not allow incoming inmates to continue taking medication for opioid use disorder prescribed before their detention or has a blanket policy prohibiting MAT altogether.
Additionally, a blanket policy mandating people be on one specific form of medication, rather than allowing for individualized medical care, is also a violation of the ADA, said Cassie Crawford, an assistant U.S. attorney for the Middle District of North Carolina, during the August webinar.
The DOJ guidance does carve out an exclusion to ADA protections for “individuals engaged in the current illegal use of drugs.” But Crawford cautioned against jails automatically refusing MAT if someone tests positive for an illegal drug as people are still entitled to medical care under the three-decades-old federal law.
“You couldn’t prohibit someone from receiving insulin because they tested positive for marijuana at intake in a correctional facility,” Crawford said during the webinar. “You similarly can’t deprive someone of legally prescribed medication for opioid use disorder just because a drug test result shows illegal use of a different drug.”
The DOJ has the authority to investigate potential ADA violations if an individual files a complaint. The Department of Justice can also initiate its own compliance review to look into an issue if it receives information of a potential violation. Based on the findings, the DOJ does have enforcement authority.
“Our first priority is trying to work out a settlement or agreement,” Armstrong said, noting that’s usually what happens. “If that fails, and the department finds a violation, we do have enforcement authority to go to court to seek the appropriate relief.”
Information about filing an ADA complaint with the Department of Justice is available here.
The DOJ guidance comes on the heels of several lawsuits across the country, including in Maine, Massachusetts, Washington and New York, where settlements favored plaintiffs continuing their medication for opioid use disorder while incarcerated.
Implementation remains low
Historically, MAT has been inaccessible to incarcerated individuals, even as federal statistics show nearly two-thirds of people in U.S. jails and prisons have a substance use disorder.
The past five years have brought increased concern around overdose rates and who’s most at risk. Weizman said that’s got more correctional facilities taking an interest in MAT.
Studies show that providing medications for opioid use disorder in criminal justice settings decreases opioid use, criminal activity once released and the spread of infectious disease. Studies have also found that overdose death rates following incarceration are lower when inmates have received medications for their addiction. In North Carolina, a study found that formerly incarcerated people are 40 times more likely than the average person to die of an opioid overdose within two weeks of release from jail or prison.
Recognizing these benefits, the National Commission on Correctional Health Care issued a position statement recommending that jails and prisons take action to provide access to and continuity of medications for opioid use disorder in order to save lives and fight the opioid epidemic.
The National Sheriffs’ Association is in agreement. The organization released a statement supporting implementation of MAT programs in jails, saying “jails are on the front lines of this epidemic, and they are also in a unique position to initiate treatment in a controlled, safe environment.” The North Carolina Sheriffs’ Association has not issued a statement on this topic, but Executive Vice President and General Counsel Eddie Caldwell said that’s not unusual because the group does not issue positions on various issues.
“If it’s required by law or by federal regulation, then the sheriffs and their daily administrators and the local medical provider that’s administering their local medical plan that they’re all required to have, I’m sure they’re going to follow the law so there’s really not any kind of statement that would be appropriate or necessary,” he said.
The intersection between substance use disorders and incarceration has been well documented. Even with that, and with the mounting evidence about the effectiveness of MAT, implementation in jails remains slow, and at the discretion of each county sheriff.
“You wouldn’t stop somebody on hypertension medicine so why would you stop somebody that’s taking medication for substance use disorder?” asked Elijah Bazemore, who retired as a major from the Durham County Sheriff’s office last December after more than 30 years and helping launch the MAT program in 2019. “It’s still an illness. They would need continued treatment.”
New momentum for MAT in jails
Weizman expects the DOJ guidance will accelerate the pace of MAT implementation in detention centers.
Morse is already starting to see signs of it. After the guidance was released, he had about five counties reverse their medical decisions regarding MAT and reach out to partner with Morse Clinics. Forging such partnerships is the easiest way to bring MAT into a jail.
Morse worked with the jails in Durham and Chatham counties before the DOJ guidance but Alamance, Randolph, Franklin, Vance and Nash counties have also now opened up to MAT in order to be compliant with the ADA, he said.
Willingness to implement MAT in jails is a mixed bag across the state, Bazemore said.
“You’ve got some agencies that are going to embrace it,” he said. “Some are going to tell you they need more information and can be swayed to go forward.
“Then you’ve got some that are just simply not going to be supportive.”
Money from the state helps too. State lawmakers allocated $2 million in last year’s state budget to help local jails start or expand their MAT programs. Originally, the grant program specified the funds could be used to provide only one of the three FDA-approved medications for opioid use disorder — naltrexone — but the language has since been revised in this year’s budget to include access to all three.
After retiring from work at the Durham County Detention Center, Bazemore became a consultant specializing in jail-based opioid use disorder treatment with Vital Strategies, a public health organization working with governments to advance local policies and practices. He says it’s his goal to eradicate the stigma that’s attached to substance use disorder to get more jails on board with providing MAT. His job makes him available to provide free support to detention facilities in North Carolina wanting to implement a MAT program.
If there’s the desire, Bazemore said a jail could have the logistics worked out within six months to comply with the DOJ guidance.
“The more jails that do it, the more it’s going to shine a spotlight on the fact that the other jails are depriving people of this medicine,” said Evan Ashkin, director of the North Carolina Formerly Incarcerated Transition Program and a MAT provider. “I think we’re going to cross a tipping point at some level where there’s going to be quite a few jails doing it and the ones that aren’t are going to really stand out and be vulnerable to criticism, to lawsuits.”
Decreasing the burden of overdose
Ben Powell, a physician assistant at SouthLight, a nonprofit opioid treatment program providing daily dosing of methadone and buprenorphine in the Triangle, said many of their clients are in and out of jail on a regular basis. He said it’s highly destabilizing for patients to be forced off their medication during incarceration.
“I can tell you it’s rare that someone comes back on the day that they’re released,” Powell said. As a result, he said, there’s “almost always a return to use.”
Powell said maintaining stabilized treatment during incarceration is a pivotal shift that will decrease relapses.
“We’re going to decrease the burden on the criminal justice system because it’s going to decrease recidivism,” Powell said. “We’re going to decrease the burden on the healthcare system because we’re going to have fewer overdoses. We’re going to increase continuity of care to decrease relapses, increase patient satisfaction and keep people from dying.”
The knowledge that MAT will be continued in jail could also lead more people to seek treatment, Ashkin said. In the past, he said fear of painful withdrawal if a patient ends up in jail has deterred them from being willing to even start MAT.
“The fact that they can stay on their meds even if they wind up in the Orange County Detention Center is enormously positive because they stay on treatment,” he said. ‘They’re not frightened of this withdrawal.”
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