The opioid epidemic in the United States has reached new highs in recent years. In 2014, deaths resulting from an opioid overdose, including prescription painkillers and heroin, accounted for over 28,500 deaths in the United States, which amounts to a 14-percent increase from the prior year.1 In 2012, almost 22,000 babies were born experiencing opioid withdrawals, which equates to one newborn every 24 minutes.2 The cost of treating those affected newborns was estimated at $1.5 billion annually.3 Michael Botticelli, the director of the White House Office of National Drug Control Policy, emphasized the Administration’s commitment to curbing the epidemic, stating, "Expanding access to medication-assisted treatment for opioid-use disorders has been a top priority for this administration. Research clearly shows that this approach, when combined with behavioral therapies, is more effective at sustaining recovery and preventing overdose."4
However, with disagreements between the White House and Congress on appropriation levels to fund fighting the epidemic, a number of states have stepped in and taken legislative action to combat opioid abuse in unique ways. This article will analyze various executive and legislative measures issued on the state level to garner better data on opioid-related deaths, provide immunity to healthcare providers and other caregivers who administer an opioid antagonist to prevent an opioid overdose death, and discuss potential state judicial action to address the epidemic.
States Struggle to Accumulate Data on Opioid Deaths
In order to appropriately analyze this opioid epidemic, policymakers must know how far the epidemic reaches. According to a 2014 United States Centers for Disease Control and Prevention (CDC) report, some states lagged far behind the rest of the nation in specifically reporting what type of drug caused an overdose death. According to the CDC report, while 81 percent of death certificates nationwide listed the drug or drugs that caused an overdose death, Alabama was the least precise state in reporting the specific drug that caused an overdose death, with only 48 percent of death certificates in Alabama listing the drug or drugs causing the death.5 Six other states reported specific drugs causing overdose deaths less than 70 percent of the time.6
One state, South Carolina, took steps to address this issue. In 2013, only 58 percent of death certificates in South Carolina had the fatal drug in an overdose death listed, and some thought that the state could do better.7 South Carolina Governor Nikki Haley signed Executive Order 2014-22, which created the Governor’s Prescription Drug Abuse Prevention Council.8 The Executive Order further directed the newly formed Council to identify the extent of the opioid epidemic in South Carolina by integrating all drug data, including complete overdose death records.9 As part of its State Plan to Prevent and Treat Prescription Drug Abuse, the Council sent a letter to all coroners in South Carolina directing them to reopen every death certificate in 2014 that credited the death to a drug overdose and add any fatal drug or drugs found in the corresponding toxicology report to the death certificate.10According to the same CDC report, 95 percent of death certificates that listed a drug overdose as the cause of death in South Carolina in 2014 had the fatal drug or drugs listed on the certificate. This improved data collection and reporting allows administrators and policymakers in South Carolina to better understand what types of drugs are killing its residents.
State Legislatures Choose Lifesaving Measures Over Zero Tolerance
While South Carolina has made policy changes to know how widespread the opioid epidemic is within its borders, the vast majority of states already have what are known as “good Samaritan” laws in place to protect individuals who intervene to provide treatment to those at risk for overdose death. During its 2016 legislative session, Missouri became the 47th jurisdiction in the United States to pass its first good Samaritan act, legislation that allows those who are at risk of an opioid overdose access to naloxone,11 a drug that, while containing varying amounts of opiates, acts as an opioid antagonist and counteracts an overdose already in progress. Missouri’s House Bill 1568, which went into effect on August 28, 2016, is similar to the Good Samaritan Drug Overdose Act, which is model legislation that authorizes a pharmacist to dispense naloxone pursuant to a written protocol furnished by a physician, with or without a prescription, for a person believed to be at risk of an opioid overdose.12 Additionally, House Bill 1568 created immunity from criminal prosecution, disciplinary actions from a professional licensing board, and civil liability for a person -- whether a healthcare professional, family member, or other layperson -- who, in good faith, administers naloxone to another individual whom he or she believes is experiencing an opioid overdose.13 Furthermore, the new legislation authorizes a person or organization that is already authorized by a standing order from a healthcare professional to dispense an opioid antagonist to also store such drugs without having to be licensed as a pharmacy.14
However, not all state versions of the Good Samaritan Drug Overdose Act give healthcare providers and state agencies the same amount of authority. For example, Missouri’s new naloxone access laws are considered “self-executing,” meaning that, as long as a pharmacist has a physician willing to oversee the written disbursement protocol, the legislation does not require rulemaking by the Missouri Board of Pharmacy in order to implement the practice of furnishing opioid antagonists. In comparison, the Illinois General Assembly in 2015 passed House Bill 1, which also allows a pharmacist to dispense naloxone without a prescription for a person believed to be experiencing an opioid overdose.15 However, the Illinois legislation directed the Illinois Department of Human Services to create a required training program for pharmacists relating to dispensing opioid antagonists, along with standardized procedures for dispensing naloxone.16 Since both the training program and standardized procedures were not finalized until recently, the practice of the new Illinois legislation only went into effect in April 2016.17
During the 2015 legislative session, the Nevada Legislature passed its version of the Good Samaritan Drug Overdose Act as Senate Bill 459. Similar to the Illinois law, Nevada’s naloxone access law authorize the State Board of Pharmacy to develop standardized procedures for the dispensing of opioid antagonists, as well as require a pharmacist to complete a training program on the use of opioid antagonists.18 In addition to providing criminal immunity to those who dispense or administer an opioid antagonist, the Nevada law authorizes the state’s Department of Health and Human Services to collect information relating to the number and type of opioid antagonists dispensed, in order to assess the risk factors involved in certain types of antagonists.19
While Missouri, Illinois, and Nevada provide for both immunity and an exception from pharmacy licensure if a standing order for a prescription exists in their respective statutory schemes, not all states have gone so far. Out of the 47 jurisdictions that have naloxone access laws, only 34 provide criminal immunity to those who prescribe or dispense naloxone to a layperson, and 41 states authorize dispensing of opioid antagonists without pharmacy licensure based on a standing order from a healthcare professional.20
Pennsylvania Grapples with Involuntary Treatment
While Pennsylvania is one of the vast majority of states that has naloxone access laws, the state’s General Assembly debated whether the state needed to go further in combating opioid abuse in the Keystone State. In November 2015, House Bill 1692 was referred to the Committee on Human Services. The legislation would authorize involuntary commitment and treatment for a person suffering from alcohol or drug abuse, upon petitioning a court of competent jurisdiction.21 The court would then hold a hearing within seven days of filing, to determine if the person subject to the potential involuntary commitment is an alcohol or drug abuser, is an imminent danger to himself or herself or the public, and would benefit from the treatment.22 Similarly, in an interim hearing of the Pennsylvania House Joint Policy Committee August 31, 2016, Lackawanna County’s President Judge, Michael Barrasse, advocated for involuntary commitment of and medical treatment for any person brought into a hospital emergency room after receiving naloxone.23
While the constitutional and policy implications of state activity, such as the proposal in Pennsylvania, are outside the scope of this article, it is clear that the debate surrounding how to address the opioid epidemic on a state level is far from over. Increased awareness and data collection has helped states assess how serious the opioid epidemic is here in the United States. Although state legislatures have acted to stem the tide of opioid overdose deaths, the ongoing debate on how best to approach the current crisis continues in statehouses across the country, even while increased funding has been proposed at the federal level.24 As new executive and legislative policies continue to be rolled out, it will be up to the judiciary to determine how far the government can constitutionally act in changing someone’s personal decisions relating to drug use.
Mr. Morton would like to thank Brenda Erdoes and Laurel Armbrust for their assistance in editing this article.
1 Rudd, Rose A., et al., Increases in Drug and Opioid Overdoes Deaths -- United States, 2000-2014. Centers for Disease Control and Prevention. January 1, 2016, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6450a3.htm. (This is the most recent data available from the CDC).
4 See Kounang, Nadia, “Obama Announces New Moves to Fight Opioid and Heroin Abuse Epidemic.” CNN, June 2, 2016, available at http://www.cnn.com/2016/03/29/health/obama-war-on-drug-abuse/.
10 Governor’s Prescription Drug Abuse Prevention Council. State Plan to Prevent and Treat Prescription Drug Abuse. South Carolina, December 2014. Among other considerations, the State Plan also recommended that registration under and utilization of South Carolina’s Prescription Drug Monitoring Program by physicians be made mandatory under state law. See also Vestal, Christine. “Getting Better Data on Which Drugs are Killing People.” Stateline, August 19, 2016, available at http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/08/19/getting-better-data-on-which-drugs-are-killing-people.
11 Prescription Drug Abuse Policy System. “Naloxone Overdose Prevention Laws. August 2016, available at http://legacy.lawatlas.org/files/upload/20160809_Naloxone_Report.pdf. Arizona, Montana, Nebraska, and Wyoming do not have any laws relating to naloxone access.
17 See Department of Financial & Professional Regulation, State of Illinois. “New Training Allows Pharmacists to Dispense Heroin Overdose Antidote.” April 4, 2016, available at http://www3.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=19&RecNum=13549.
21 H.B. 1692, Pennsylvania (as introduced), Nov. 12, 2015, available at http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2015&sessInd=0&billBody=H&billTyp=B&billNbr=1692&pn=2518.
23 Singleton, David. “Legislative Panel Hears Testimony on Opioid Crisis.” The Citizens Voice. Sept. 1, 2016, available at http://citizensvoice.com/news/legislative-panel-hears-testimony-on-opioid-crisis-1.2085538.
24 Office of the Press Secretary. “FACT SHEET: President Obama Proposes $1.1 Billion in New Funding to Address the Prescription Opioid Abuse and Heroin Use Epidemic. The White House. February 2, 2016, available at https://www.whitehouse.gov/the-press-office/2016/02/02/president-obama-proposes-11-billion-new-funding-address-prescription.