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Legal Developments Increase Access to Drug Overdose Prevention and Treatment

posted on Tue, Sep 30 2014 1:12 pm by Corey Davis

The Drug Enforcement Administration (DEA) recently announced a long-awaited regulatory change that would permit people to return unwanted prescription drugs to pharmacies. Under current law, such drugs can be returned only to law enforcement entities, which is why “Drug Take Back” events were run by law enforcement, and why secure return containers were only found in police stations. While the new rule does not address several important issues — such as who will pay for the returned drugs to be destroyed, and whether pharmacies will have any liability if returned drugs are stolen — it’s an important step forward in drug abuse and overdose prevention.

The DEA’s regulatory change is the latest in a number of important legal and quasi-legal developments in federal and state overdose prevention efforts.

In July, the Office of National Drug Control Policy (ONDCP) released the 2014 National Drug Control Strategy, which is part report and part policy blueprint. Due in large part to the leadership of Acting Director (and Director nominee) Michael Botticelli, who describes himself as a person in long-term recovery, the Strategy continues the Administration’s slow shift away from a law enforcement emphasis and towards a public health and prevention approach to drug-related harm. The Strategy emphasizes such evidence-based efforts as increased access to treatment, criminal justice reform, and access to naloxone for opioid overdose reversal. While (as critics are quick to note) most of the approximately $25 billion spent directly on drug-related efforts continues to go to criminal justice activities, the shift in emphasis is notable and, due to the bully pulpit of the ONDCP, will likely shift policy beyond that directly reflected in funding decisions.

At the state level, there have been a number of changes to increase access to naloxone and related emergency overdose care. Perhaps most interesting of these is California, where the Governor recently signed a bill that permits pharmacists to dispense naloxone according to procedures approved by the Board of Pharmacy and Medical Board without the customer having first been prescribed the drug. This law, which is similar to arrangements underway in Rhode Island and authorized in Oklahoma, is a promising strategy to increase access to naloxone.  Meanwhile, Delaware has become the 26th state to pass a law increasing naloxone access, and in mid-September the Pennsylvania House passed a joint naloxone/Good Samaritan bill in mid-September, with the bill expected to be passed by the Senate soon.

As of January 1, 2014, the health insurance plans offered to most newly insured (and many currently insured) people must provide “essential health benefits” — as required by the Affordable Care Act (ACA). Among these essential benefits is coverage for mental health and substance use disorder (SUD) services. The ACA also improves access to substance use disorder services by extending a federal law that requires that SUD benefits be provided at parity with medical and surgical benefits to most people who will gain insurance under the ACA. All plans offered through exchanges and all benchmark and benchmark-equivalent Medicaid plans will be required to comply with this law, known as the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA).

Finally, as more and more states expand Medicaid, access to evidence-based substance use disorder (SUD) treatment will increase. The Mental Health Parity and Addiction Equity Act (MHPAEA) requires that SUD benefits be provided at parity with medical and surgical benefits to people under Medicaid plans operated by managed care organizations.

To learn more about legal and policy options in overdose prevention, visit the Drug Overdose Prevention and Harm Reduction section on the Network for Public Health Law’s website, and view a recording of the recent webinar, Legal and Policy Tools in Drug Overdose Prevention.

The Network continues to follow legal changes to increase access to overdose prevention and treatment, and is always happy to answer questions and provide assistance.

This information was developed by Corey Davis, Deputy Director, the Network for Public Health Law – Southeastern Region at National Health Law Program.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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