June 05, 2018

ABA Addresses Opioid Crisis

By Katherine Mikkelson

ABA leaders and staff met in May to address one of the deadliest epidemics of our times: opioid addiction. The numbers are stark and startling. One hundred and fifteen people die each day from opioid overdoses according to the Center for Disease Control. Nationwide, the epidemic is now claiming more lives than homicides and automobile deaths combined. The CDC estimates that the total economic burden of opioid misuse is $78.5 billion a year including criminal justice involvement, addiction treatment, lost productivity and healthcare.

Sponsored by the ABA Senior Lawyers Division, the purpose of the ABA Opioid Summit was to bring experts and ABA leaders together to examine the scope of the problem and develop recommendations to address this major societal crisis.

The summit began with a series of presentations from experts who outlined the history and scope of the problem. Dr. Mary Carter, Associate Professor and Director of Gerontology Programs at Towson University in Maryland, kicked off the summit, noting that 2.5 to 5 million people have an opioid disorder, and 80 percent of these began while using a prescription drug. Opioids misuse began because pharmaceutical companies and doctors initially considered them a safe way to manage pain; both parties were under the impression that only one percent of patients could become addicted. Carter outlined that 1998 was considered the start of the epidemic, and the peak of prescribing was reached in 2012. After that time, opioid prescriptions decreased significantly, but at the same time illegal sources increased, including heroin, which is a much cheaper drug. Currently, fentanyl (a synthetic opioid) outpaces heroin use, and fentanyl deaths now outpace heroin and prescription opioids.

Link Christin, Executive Director of the Legal Professionals Program at Caron Treatment Center in Pennsylvania next spoke about treatment issues. Christin relayed the tragic story of how opioids personally touched his life when his ex-wife’s 17 year-old daughter died from a heroin overdose. Christin spoke about medication assisted treatment (MAT), where patients are often treated with Naltrexone, a drug that blocks the euphoric and sedative effects of opioids, thereby reducing cravings. MAT is not without its critics. For example, if those who are treated with Naltrexone relapse and use the previous dosage of opioids, they could suffer life-threatening consequences including respiratory arrest. Christin discussed the various obstacles for patients seeking treatment including lack of or poor insurance, philosophical (i.e. one shouldn’t exchange one opioid for another), costs of treatment, the shame factor, and the speed and scope of the crisis. Christin also advocated for the widespread use of naloxone/Narcan, an opioid antagonist. Narcan blocks the effects of opioids and can stop people from overdosing. It very quickly restores normal respiration to someone whose breathing has slowed or stopped. Narcan is available over the counter and is easy to administer with little or no side effects, but it is not without its issues. Opponents claim it can be misused, and that it prevents people from getting treatment for their addiction because they rely too heavily on Narcan. In April of this year, U.S. Surgeon General Jerome Adams issued an advisory urging Americans to routinely carry Narcan.

David Hoffman, a partner with Sidley Austin, LLP spoke about the Legal Service Corporation’s Opioid Task Force that was created by a bipartisan Congressional caucus in April. Hoffman, who co-chairs the group, discussed how the Task Force is charged with studying and reporting on challenges and potential solutions for civil legal aid as a result of the epidemic. The legal issues related to opioid addiction include guardianship and elder law issues, domestic violence, child abuse, housing, health care, and employment/disability issues. Hoffman noted that LSC offices are overloaded with opioid related cases, and that some offices do not have attorneys who are experienced enough in these areas. The goal of the task force is to produce a report by April 2019 that provides best practices and recommendations. One idea that experts have proposed is a medical/ legal partnership where lawyers are embedded in health care facilities. While intriguing in theory, critics have questioned whether such partnerships would really be effective, and where they would need to be physically located to provide the most benefits for the maximum number of people. The Task Force will examine this and others issues closely.

Summit attendees broke into three workshop groups to discuss the issues and develop recommendations to address the problem.

The Law and Policy Group
Most notable to public lawyers, this group examined the role of federal regulation in controlling drug distribution and sales, including intra-state distribution, pill-mills, and inter and intra-state electronic monitoring. This group also looked at the role of federal and state laws and litigation efforts in curbing the epidemic, including model state laws related to prosecution and access to naloxone, criminal prosecution of traffickers/drug users, class action suits against the pharmaceutical industry, and the status of the Ensuring Ensuring Patient Access and Effective Drug Enforcement Act (2016).

With respect to this Act, the group noted that the National Association of Attorneys General (NAAG) recently sent a letter to Congress, urging that the act be repealed. NAAG’s position is that the Act limits the DEA’s ability to issue an immediate suspension order against a drug manufacturer or distributor whose unlawful conduct poses an immediate danger to public health or safety. This letter was signed by 44 state and territory attorneys general.

In terms of federal efforts, the group touched on the Department of Justice’s Prescription Interdiction & Litigation (PIL) Task Force that was created in February of this year. The PIL Task Force aims for a multi-pronged approach including criminal and civil remedies against manufacturers, pharmacies, drug testing facilities and individual doctors.

In addition, this group discussed the feasibility of class action and multidistrict litigation akin to the tobacco litigation that states brought against tobacco manufacturers. At least one class action lawsuit has been filed in Mississippi by two southern Alabama hospitals against 20 pharmaceutical companies, alleging that drug makers aggressively pushed their opioid products and falsely claimed that the drugs were not addictive. In addition, multidistrict litigation is being pursued in federal court in Cleveland where hundreds of municipalities, counties and Native American tribes are being brought together in one lawsuit.

Last, the group discussed the role of information and education in combating the crisis, including physician understanding and compliance with guidelines for best-practice prescribing and discontinuation, the effects of declaring states of emergency in mobilizing resources, and approaches to disseminating information.

Family and Policy Issues Group
This group examined the impact of the opioid crisis on the family (including child welfare and parental rights, neglect and abuse, family disruption and child/teen exposure to illicit drug use), the impact of the crisis on social and legal services (including foster care, family court, access to rehabilitation and services, and the rural/ urban divide in delivering services), ways to strengthen families in the midst of the crisis (including providing supports for kinship care, grandparents raising grandchildren, multigenerational drug misuse, and risks to family members sheltering those with drug misuse disorders) and the hidden epidemic of older adult opioid addiction (including unintentional misuse of opioids, lack of targeted age-specific treatment programs, the problem of chronic pain, and availability of alternative treatments).

Treatment, Advocacy, and Education Group
This group discussed advocacy and public education (including guaranteed access to treatment and recovery programs, widespread education efforts regarding opioid treatment, widely available treatment options, guaranteed access to treatment for incarcerated individuals with dependence, treatment for co-dependency, and access to overdose reversal drugs), improving treatment and rehabilitation (including expedited review of new treatments, medications, and protocols; review of best practices in chronic pain management; review of existing programs and therapeutic treatments; identification of non-pharmaceutical treatments and supports; emergency interventions; and improved methods of program evaluation and effectiveness monitoring) and better management of chronic pain (including alternative strategies for managing chronic pain, adherence to protocols for best-practice prescribing, and discontinuation).

A report on the ABA Opioid Summit is expected by the Annual Meeting in Chicago in August. It will be used to create policy recommendations that the ABA House of Delegates will consider, possibly as early as the Midyear Meeting in Las Vegas in February.