This post is part of a symposium from speakers and participants of Northeastern University School of Law’s annual health law conference, Diseases of Despair: The Role of Policy and Law, organized by the Center for Health Policy and Law.
All the posts in the series are available here.
The epidemic associated with Opioid Use Disorder (OUD) has birthed a proliferation of reports, many with notable provenance. They include the Surgeon General’s Report (2016), the President’s Commission on Combating Drug Addiction and the Opioid Crisis (2017), and the National Governors Association Recommendations for Federal Action to End the Nation’s Opioid Crisis (2018). We can add innumerable regional and state reports to that list.
Placed next to each other, their recommendations are broadly similar. While they may differ somewhat to the extent that they emphasize criminalization versus medicalization, overall, they tend to coalesce around harm reduction (such as broad naloxone availability and syringe exchanges), upstream opioid reduction strategies (such as prescription limits and prescription drug monitoring programs), and increased public health surveillance based on improved data collection and analysis.
Most reports endorse healthcare and public health initiatives such as broader availability of all three types of FDA-approved medication-assisted treatment (MAT) in multiple treatment settings, including jails, as well as the provision of wrap-around services, and tackling social determinants of health.
However, these proposals often are more diffuse, the strategies unclear, and the funding (if any) of dubious sustainability.
In part this is a function of federalism. Absent a national health system, the levers of central government are quite limited, with states responsible for exercising their police powers to protect the welfare, safety, and health of the public. Even at the state level, decentralization can be an issue when smaller political entities such as counties have considerable autonomy over public health interventions. And while the federal government can exercise its influence on health policy using its power of the purse, it has, until recently, been hesitant about spending the necessary funds to address the addictions crisis. Having turned that corner, Congress is now beset by private rent-seekers looking to get in on the action.
It may also be because policymakers are simply more comfortable with incremental moves over fundamental change. Symbolic gestures such as the appointment of commissions or czars are far easier than the development, financing, and implementation of complex policy solutions to a wicked problem. Those who question the value of incremental reforms often run into the “perfection is the enemy of the good” argument. However, for addiction crises, “good” increasingly looks like it won’t be good enough.
Incremental problem-solving dies on the tips of many swords. The first, and sharpest, is the problem of misidentification.
The opioid epidemic is not a unique, free-standing problem. Rather, it is part of an addiction problem that stretches back over a century. As David Herzberg has explained, each “crisis” tends to recycle “supply-side and criminal-justice approaches” rather than “an expanded public health response.” For example, placing limitations on opioid prescribing has little impact on broader addictions associated with benzodiazepines or even alcohol.
There is a secondary effect here; narrow, incremental “crisis-of-the-day” solutions usually embrace exceptionalism, pathology-specific ideas, rather than systems-wide reforms. However, a massive problem with our healthcare and safety net systems is their fragmentation and the lack of coordination that follows. Exceptional solutions frequently increase fragmentation. For example, there may be value in revisiting the IMD exclusion for those with OUD, but how will that impact budget-neutral Medicaid expenditures on other addictions or on patient cohorts that would be better served through community-based interventions?
The second problem with incremental solutions is that often they are a poor match for problems that are evolving. The opioid crisis is morphing on two fronts. The first is geographical. In the end, the greatest toll of the opioid epidemic likely will fall disproportionately on “Tobacco Nation,” upper Midwestern and Southern states that exhibit poverty, inadequate health care, and marginalized populations; the progenitors of diseases of despair. Indeed, recent literature based on emergency department data on overdoses, published by the Centers for Disease Control and Prevention (CDC), demonstrates a considerable worsening of the substance abuse crisis, including a sharp spike in the Midwest. However, across the country, pockets of the epidemic can arise, often with little warning (or little attention paid to the social and economic determinants of health).
The pathology of the crisis also is morphing. Over-promotion, overprescribing, and diversion of prescription opioids were significant contributors to OUD. Yet, increasingly, the substance abuse crisis goes beyond opioids, with the United States Drug Enforcement Administration (DEA) recently reporting a significant spike in the availability and use of cocaine, and methamphetamine traffic from Mexico on the rise nationwide. Meanwhile, the OUD crisis now revolves around the abuse of non-prescription opioids by non-medical users, typified by Chinese-produced, U.S. Post Office-delivered fentanyl. The victim cohorts also are in flux. “The first is the prescription-drug epidemic—highly visible to the public, and more likely to occur among older adults in rural, white communities who misuse prescription painkillers. The second, more recently emerging epidemic, is among younger adults who are victims of illegally produced opioids such as fentanyl. Urban communities of color have recently witnessed a surge in deaths resulting from these illegally produced opioids.”
Sadly, the optimal solution for the current opioid crisis might be to look beyond it. The real “solution” is to attack the social and structural determinants of health upon which addictions attach like parasites and build resilient social and healthcare structures prepared to effectively resist the next epidemic.
Nicolas Terry is the Hall Render Professor of Law & Executive Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law. Along with Professors Aila Hoss and Ross Silverman he is serving on a research team funded by the Indiana University Addictions Grand Challenge and responsible for the report Legal and Policy Best Practices in Response to the Substance Abuse Crisis.
This symposium is published in partnership with:
