May 23, 2022
From Shadowproof
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When a 51-year-old man entered New York’s Jefferson County Jail in December 2021, he brought his medication with him. R.G., as he is referred to in court documents, knew that without his medicine, he would quickly enter into an excruciating withdrawal. 

His doctor had prescribed him Suboxone, which is a medication for treating opioid use disorder that is approved by the Food and Drug Administration (FDA). But R.G. said jail staff refused to let him take it.

Instead, corrections staff, including a nurse practitioner, told R.G. that any suffering he would go through was his fault.

“You start getting the skin crawling and the shakes and sweaties, and then comes the defecating on yourself, [you] can’t make it to the bathroom to sit on the toilet and go. You just go wherever you’re at. And it was horrible,” R.G. said in a phone call, adding that at one point during his withdrawal, he began to hallucinate. He said he wasn’t let out of his cell all night, despite the mess. 

“Feces [were] all over the place. It smelled in there, and the only reason they let me out was because some [corrections officer] said she couldn’t stand the smell of it,” he said.

After speaking with R.G. and other detainees who were forced into withdrawal in the jail, the New York Civil Liberties Union (NYCLU) filed a class-action suit against Jefferson County and the jail. (ShadowProof has agreed to refer to those named in NYCLU’s legal actions by their initials to protect their identities.)

The lawsuit alleged the jail had imposed a blanket ban on medication for opioid use disorder and that its policy of denying non-pregnant detainees access to their medication violated protections against cruel and unusual punishment under the U.S. Constitution’s Eighth Amendment, the Fourteenth Amendment, and the American with Disabilities Act, as well as New York State Human Rights law.

“There is no good reason for Defendants not to have granted M.C.’s request to continue medically necessary treatment for his disability,” NYCLU wrote in the March lawsuit, referring to one of the plaintiffs representing the class. 

Yet the experience of those incarcerated in Jefferson County was far from unique to that jail.

Doctors and scientists have long known that medications for opioid use disorders (MOUD) are effective and safe treatments for opioid use disorders. Three drugs — buprenorphine, methadone, and naltrexone — are approved by the FDA for the chronic disease yet are treated as dangerous contraband in most jails and prisons. Suboxone is a combination of buprenorphine and naloxone, the latter of which is used for reversing opioid overdoses.

New York City’s Rikers Island began an opioid treatment program in 1987. The National Commission on Correctional Health Care and the National Sheriffs Association both support implementing medication-assisted treatment in incarceration settings. 

Yet while people with opioid use disorders disproportionately come into contact with the criminal justice system, they’re often forced into withdrawal at the beginning of their incarceration. Of the approximately 5,000 correctional institutions across the United States, just 632 offer any form of medication for opioid use disorder, according to the Jail & Prison Opioid Project, an organization that tracks data and provides information about MOUD. 

This lack of access to medication endangers incarcerated people. 

A 2018 study found that in the first two weeks after release from incarceration, those previously detained were 40 times more likely to die of an opioid overdose than people in the general population. Yet studies have also shown that offering people MOUD reduces the risk of overdose after release.

“It is torture, literally torture to go through withdrawal,” said Dr. Jody Rich, who helped set up Rhode Island’s groundbreaking program to screen people for use disorder upon entry into the state’s incarceration system. A study of the program’s efficacy found a 61 percent decrease in post-incarceration deaths. 

People with opioid use disorder say the non-medication treatment options pushed by corrections institutions often don’t work.

“I have had experiences with non-medication treatment programs, but any success with those programs was extremely short-lived—I could not escape negative thoughts and intense opioid cravings,” R.G. wrote in testimony submitted to the court. 

“Receiving a therapeutic dosage of Suboxone has been effective at managing my addiction. It takes away those intense opioid cravings, regulates me, and helps me think positively. Suboxone makes me feel alive.”

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Nearly 500,000 people died from opioids in 20 years between 1999 and 2019, according to the Centers for Disease Control and Prevention. Even set against the backdrop of constantly increasing death tolls, the first year of the pandemic resulted in a staggering jump in opioid deaths. More than 107,600 people died from drug overdoses in 2021

Despite the well-established science about MOUD and consistently rising opioid deaths, lawyers and medical professionals told Shadowproof that the stigma and fear of the unknown still reign supreme over science. 

Legislation has begun chipping away at that stigma. A 2021 study from the O’Neill Institute at Georgetown Law found that 15 bills related to MOUD access in incarceration settings came into effect in “recent years.”

When corrections departments implement MOUD programs, they’re forced to confront that stigma. 

“Suboxone specifically had been kind of public enemy number one, from a correction standpoint, because that’s what staff were trained to seek out and, and control and address from illicit drugs sort of perspective,” Ryan Thornell, the Deputy Commissioner of Maine Department of Corrections, said.

As the state’s [prison] system began planning to implement its MOUD pilot, they surveyed staff about their perceptions of addiction and medications to treat it. The agency then used that information to debunk common misconceptions, such as the belief that MOUD replaces one addiction with another.  

“Access to the appropriate medications for the disease or illness really starts to address the underlying behavior issues we see in correctional facilities,” Thornell said. “Our assault rates have gone down, our disciplines have gone down, our trafficking and diversion issues have gone down, because again, we’re providing the necessary medical treatment to the population, in addressing what was probably the primary underlying issue contributing to the negative behaviors in the facility.”

Litigation has also made inroads. In recent years, the American Civil Liberties Union (ACLU), along with state partners, have levied lawsuits against jails across the country. Since 2018, the ACLU has brought cases against jails in Massachusetts, Maine, and Washington to ensure that clients could continue receiving medication while in prison. 

“It’s been in the last three to four years where you’ve seen some judicial movement that’s been positive,” Tammie Gregg, the Deputy Director of the ACLU’s National Prison Project, said.

After the ACLU of Maine sued the state’s Department of Corrections and, in another suit, a county along the Canadian border, Governor Janet Mills signed an executive order to bolster the state’s response to the opioid epidemic. The executive order included directives for the state’s corrections infrastructure. 

Between July and December 2019, the Department of Corrections (DOC) opened a pilot program that provided medication-assisted treatment to 72 people. In the last year, the program expanded to offer medication in all facilities, Thornell said. Unlike many programs in the country, the Maine DOC also initiates treatment for people who were not already prescribed MOUD.

But efforts to force change through legal threat or the possibility of lawsuit have been stymied by courts. Judges may say that the litigation is premature because a person hasn’t entered the facility. 

“We’ve run into so many cases where they’ve said it’s moot until you have a problem,” Gregg said.

At the beginning of April, however, the federal Department of Justice issued forceful guidance clarifying its interpretation of the Americans with Disabilities Act (ADA).

The guidance clearly states that preventing an incarcerated person from continuing MOUD prescribed before they were jailed would constitute a violation of the ADA.

“DOJ has been entering into really important settlement agreements with a number of healthcare entities that have been discriminating against people receiving medication for opioid use disorder. They’ve all been important. But this guidance brings it all together in one place and sends a new and very powerful signal,” Sally Friedman, the senior vice president of legal advocacy at the Legal Action Center said.

Gregg agreed that the DOJ guidance could shift the way that judges approach their litigation. 

“I think judges might see this guidance from DOJ as giving them a little bit more authority to act.”

Susan Nyamora, the president of the South Florida Wellness Network, called the guidance “amazing” and said it would help reinforce her organization’s efforts to treat substance use disorders as chronic illnesses.  

Nyamora’s community recovery organization has worked to ensure that people can continue receiving MOUD treatment after they are arrested and enter incarceration facilities, and also receive care upon release. She said that Florida’s Broward County Jail has heavily relied upon methadone and often placed people on 6-month taper plans.

“I don’t think that we do that for other chronic health conditions. We don’t tell a diabetic they can only be on medication for six months,” Nyamora said, adding that she hoped the potential threat of a lawsuit will lead the county to offer more robust services to detainees.

*

Like in Broward County, many jails across the country may offer MOUD but limit the scope of treatment available. Some facilities rely heavily on one form of medication, even though individuals may not respond to that form of MOUD. 

The Pennsylvania Department of Corrections only offers medication to detainees who have been prescribed MOUD for at least 60 days prior to their entrance into the incarceration system. 

“The purpose of the procedure and the qualification of two months is that we have a maintenance program,” Pennsylvania Department of Corrections Press Secretary Maria Bivens wrote in an email. “If an individual is coming in from the community and they are not on MAT maintenance in the community, they do not qualify for our maintenance program,” 

Some incarceration systems will revoke access to medication as a behavioral punishment. Other times, medication is administered in a manner that undercuts its efficacy, as well as FDA recommendations. 

“If you’re giving a sublingual medication, you have to give it time to absorb,” Adrienne Abner, the MOUD/MAT Project Staff Attorney at the Pennsylvania Institutional Law Project, said. 

“What we found is that the person has been given the sublingual strip to put under their tongue, and then told immediately to drink water. Well, that’s basically no treatment because they end up swallowing the medication, instead of the medication being absorbed.”

In a lawsuit that predated the class-action case, the NYCLU received a preliminary injunction against Jefferson County mandating that the county provide methadone to a 36-year-old man detained in the jail. The facility provided transportation for treatment but held him in solitary confinement for five months, in what the NYCLU has alleged is retaliation.

“He was counting out how many steps across his cell was. So it’s like, six and a half steps or something,” his partner said. “He was just pacing back and forth in his cell for a couple of hours a day to get exercise because he wasn’t allowed out to exercise or anything like that.”

Lawyers representing Jefferson County did not respond when contacted by email for this piece. Two staff members from the sheriff’s department also did not return requests for comment.

This array of potential problems administering MOUD has led some medical experts and lawyers to stress that establishing treatment programs in corrections facilities should not be seen as a replacement for combating mass incarceration. 

“We certainly would never argue that people are best off getting their [substance use disorder] care or any health care in a carceral setting, as opposed to in the community,” Friedman said.

But advocates stressed that further changes to federal restrictions could facilitate improved care for people receiving MOUD. 

The Social Security Act currently prohibits the use of Medicaid funds to pay for services offered to incarcerated people. Doctors have argued that removing payment barriers would improve the care offered in incarceration facilities. 

Eliminating the so-called inmate exemption would be a “game-changer,” Kevin Fiscella, who serves as the National Commission on Correctional Health Care’s liaison to the American Society of Addiction Medicine, said. 

Allowing Medicaid funding to cover the costs of healthcare in prisons and jails would ease the financial burden of setting up new programs. Doing so could also improve medical standards,” Fiscella said. 

“Right now, if you don’t get federal dollars, you’re not you’re not subject to mandatory accreditation for the health care services.”

Though the Federal Medicaid Reentry Act would partially address this funding gap by allowing states to restart Medicaid coverage 30 days prior to an individual’s release, the legislation has stalled in Washington.

Last month, New York began the approval process to ask the federal government to permit the use of Medicaid dollars for carceral health services. If the request clears the state registry, then the state can submit the request to the Centers for Medicare and Medicaid Services, Tracie Gardner, the Legal Action Center’s Senior Vice President of Policy Advocacy, said.

The funding request seeks to address the critical transition period during which incarcerated people leave a corrections institution and are susceptible to overdosing. 

“Right now, under Medicaid law, [opioid treatment programs] can’t even work” with people who are incarcerated but will be imminently released, Garder said. But creating a link between treatment at a corrections center and in the community would alter the care landscape.

“In my mind, at least, Correctional Health and Community Health aren’t linked until the transitional period is literally like you’re scheduled to leave and the OTP that’s waiting for you has already started processing you before you’ve left the corrections center.”

Daniel Moritz-Rabson

Daniel Moritz-Rabson

Daniel Moritz-Rabson is a researcher and reporter based in Brooklyn. His work has been published by The Appeal, Gothamist/WNYC, Filter, Eater and others.




Source: Shadowproof.com