MEDICATIONS FOR OPIOID USE DISORDER IN US JAILS AND PRISONS: STATUS UPDATE

1.  INTRODUCTION

One proven, targeted approach to preventing overdose deaths is to ensure MOUD is available to people with opioid use disorder (OUD) who are incarcerated in US jails and prisons. Just a few years ago, only a small percentage of jails were providing MOUD to the general population with OUD.3 Today, about 30% of jails provide buprenorphine  and  about  20% of jails provide methadone, two of the three FDA-approved MOUDs.4

While there has been some progress, additional efforts are urgently needed. The majority of jails and prisons still do not provide access to MOUD. Even in facilities where buprenorphine and methadone are provided, these medications are often only available to a subset of individuals with OUD. Given that MOUD is the standard of care for opioid use disorder,5 the goal must be full access to MOUD for every person with opioid use disorder when clinically indicated. People with OUD must be assured access  to these medications regardless of the setting,  whether jail, prison, or in the community. Increasing access to these medications requires a coordinated and sustained advocacy effort using both legal and policy tools.

2.    THE IMPERATIVE OF MOUD IN CARCERAL SETTINGS

There are three FDA-approved MOUDs: two agonist medications—the full agonist methadone and the partial agonist buprenorphine—and the antagonist medication naltrexone.6 Agonist medications— methadone and buprenorphine—have the strongest evidence supporting their use.7 Because the three MOUDs are not interchangeable, people with substance use disorder require individualized care and an informed choice of treatments based on their medical needs.

Providing MOUD in jails and prisons is a critical public health response to the risk of overdose and other drug-related death, a risk that many justice-involved individuals face during incarceration and upon re­ entry. Incarcerated individuals face disproportionate rates of OUD,8 and individuals leaving incarceration are up to 129 times more likely than the general population to die of an overdose  in the weeks following reentry.9   At the same time however, they also risk overdose and other substance related deaths while incarcerated. The Bureau of Justice Statistics reported that jail deaths involving drug or alcohol intoxication quadrupled between 2000 and 2019.10 About 40% of deaths in jails occur within the first seven days.11 The median time served for deaths in custody related to drug or alcohol intoxication is one day.12

PROVIDING MOUD IN JAILS AND PRISONS IS A CRITICAL PUBLIC HEALTH RESPONSE TO THE RISK OF OVERDOSE AND OTHER DRUG-RELATED DEATH, A RISK THAT MANY JUSTICE INVOLVED INDIVIDUALS FACE DURING INCARCERATION AND UPON RE-ENTRY. 

3.    JCOIN SURVEY AND ACCESS TO MOUD IN JAILS

A JCOIN survey of U.S. jails released in 2023 found that about 30% of the nation’s 3,535 jails provide buprenorphine and about 20% provide methadone.15 The study found that a majority of these jails make methadone and buprenorphine available to individuals already receiving MOUD prior to entry.16 Fewer of these jails, however, initiate MOUD treatment for incarcerated individuals with an opioid use disorder.17 While continuing MOUD treatment in jails is important, all facilities should both continue and initiate MOUD treatment for all individuals with an opioid use disorder upon entry into a jail when clinically indicated and desired by the individual.

Initiation with naltrexone is more common than initiation with methadone or buprenorphine. Nearly a quarter of jails surveyed provide naltrexone. Of jails that provide naltrexone, over half provided it to people who were receiving naltrexone when booked.

To comply with constitutional protections and other federal laws, every jail and prison should make all three forms of MOUD available to people who are incarcerated and have  an opioid use  disorder.

Treatment should be available as clinically indicated, and with the individual’s consent for the entirety of their time incarcerated. Importantly, individuals should be connected to community care upon re­ entry. However, it is not sufficient to just provide MOUD in carceral settings, policymakers also must focus on increasing access to community based treatment. No one should have to be incarcerated to receive evidence-based treatment for their OUD.

The O’Neill Institute and the Legislative Analysis and Public Policy Association developed a model state law that requires MOUD in jails and state prisons.22 In 2021, the O’Neill Institute published  a 50 state snapshot,23 with an update24 in 2023, highlighting state-level progress toward MOUD in jails and prisons.

Recent litigation has acted as a catalyst for change as courts are requiring jails to provide plaintiffs with MOUD, noting that failure to do so likely violates the Americans with Disabilities Act (ADA) and, in some cases, the Eighth Amendment of the Constitution.25 Litigation has also led to multiple settlements that have expanded access to MOUD.26 In 2022, the U.S. Department of Justice’s (DOJ) Civil Rights Division issued guidance outlining ADA protections for people with opioid use disorder and people prescribed MOUD. The guidance clarified that a jail’s blanket policy prohibiting the use of MOUD violates the ADA.27 Furthermore, the DOJ has taken enforcement action against facilities that have failed to provide MOUD, resulting in multiple settlements.28 This includes requiring facilities to initiate new MOUD treatment. A recent settlement reached in Alleghany County, Pennsylvania, for example, required the defendant jail to initiate treatment with an option of any FDA-approved MOUD “if a qualified medical provider determines that such treatment is medically appropriate based on the individual’s condition.”29

The JCOIN survey included questions on  why  jails might not provide MOUD. Reasons cited include a lack of “adequate, licensed staff” and policy prohibitions  on the use of MOUD. The JCOIN  survey  also  found that jails not offering MOUD cite expense as a  common inhibitor to offering such care. This survey highlights a need for increased resources, including Medicaid coverage and workforce expansion, to optimize MOUD services. Expanded Medicaid  coverage requires federal and state action, including submission and approval of state waiver requests.18

Several state legislatures have also taken steps toward universal access to MOUD in their jail and prison systems. For example, Colorado passed legislation requiring public and private jail facilities to provide incarcerated individuals with OUD access to, and a choice among, the three FDA-approved medications for opioid use disorder.20 New York State passed legislation in March 2022 requiring state prisons and local jails to provide MOUD to individuals diagnosed with OUD, regardless of whether they have been receiving MOUD in the community.21

5.    INCREASING ACCESS TO MOUD IN JAILS AND PRISONS THROUGH LEGISLATION, LITIGATION, AND LEADERSHIP

The increase in jails offering MOUD is attributable to a combination of state and federal initiatives, along with strategic litigation based on violations of federal law and constitutional protections. While the JCOIN survey focuses on access to MOUD in jails, additional action is necessary to expand access in state and federal prisons. In a positive move, the Federal Bureau of Prisons is in the process of providing MOUD in all 122 of its facilities.19

6.    RECENT GOVERNMENT ACTION TO EXPAND ACCESS VIA FINANCIAL OPPORTUNITIES AND RULEMAKING

The federal government has taken steps that will result in reduced barriers and enhanced financial opportunities to increase access to MOUD in carceral settings. In April 2023, the U.S. Department of Health and Human Services announced the new Medicaid Reentry Section 1115 Demonstration Opportunity.

While federal law generally bans the use of federal Medicaid dollars to pay for services for incarcerated individuals, this new opportunity allows coverage for 90 days prior to reentry.30 As of February 2024, fifteen states had submitted Section 1115 reentry waivers seeking Medicaid coverage for services for incarcerated individuals.31 California, Washington state, and Montana have all received 1115 waiver approvals. These states will begin the process to use federal Medicaid dollars for individuals 90 days prior to their reentry. The Bureau of Justice Assistance also administers grants to fund programs aimed at expanding jail-based MOUD treatment.32

The Substance Abuse and Mental Health Services Administration (SAMHSA) released a new rule, “Medications for the Treatment of Opioid Use Disorder,” updating the regulatory framework for methadone. This rule includes a provision clarifying that jails and prisons registered with the Drug Enforcement Administration as a hospital/clinic may treat incarcerated patients with methadone, as long as the patient is also being treated for a condition other than OUD.33 This allows jails and prisons that do not have an Opioid Treatment Program (OTP), or do not have a contract with an existing OTP, to provide methadone treatment for certain incarcerated people with OUD.

Together, bold action from the state and federal government, litigators, and policy advocates will result in changes on the ground. This concentrated effort may be replicable to tackle addiction as well as other public health challenges.

ENDNOTES

1         FB Ahmad et al., Provisional Drug Overdose Death Counts, N_atioNal C_{eNter for} H_ealtH S_tatiStiCS (2023), https://www.cdc.gov/nchs/nvss/vsrr/ drug-overdose-data.htm.

2         Racial Disparities Persist in Many U.S. Jails, P_ew r_eSearCH C_eNter (May 16, 2023), https://www.pewtrusts.org/en/research-and-analysis/ issue-briefs/2023/05/racial-disparities-persist-in-many-us-jails#:~:text=Further%2C%20Pew’s%20analysis%20found%20a,to%20be%20 overrepresented%20in%20jail.

3         Opioid Use Disorder Treatment in Jails and Prisons, P_ew r_eSearCH C_eNter (Apr. 23, 2020), https://www.pewtrusts.org/en/research-and­ analysis/issue-briefs/2020/04/opioid-use-disorder-treatment-in-jails-and-prisons.

4         JCOIN’s National Survey of Substance Use Services in Jails: Describing U.S. Jails and Their Screening, Treatment, Recovery, and Re-entry Practices, JCOIN (Aug. 9, 2023), https://www.jcoinctc.org/wp-content/uploads/JCOIN-2022-Jail-Survey-MAT-Results_08.09.2023v2.pdf.

5         Medications for Opioid Use Disorder Save Lives, N_atioNal a_{CademieS of} S_CieNCe, e_NgiNeeriNg, _aNd m_ediCiNe (2019), https://nap.nationalacademies. org/read/25310/chapter/1.

6         See id. (Notes the difference between agonist and antagonist medication. An agonist medication stimulates the opioid receptors in the brain to relieve withdrawal symptoms and to manage opioid cravings, while an antagonist medication blocks opioid receptors without activating them).

7         Jake R. Morgan et al., Overdose Following Initiation of Naltrexone and Buprenorphine Medication Treatment for Opioid Use Disorder in a United States Commercially Insured Cohort, d_{rug aNd} a_lCoHol d_ePeNdeNCe (July 2019).

8         Christopher J. Mumola & Jennifer C. Karberg, Drug Use and Dependence, State and Federal Prisoners, 2004, B_{ureau of} J_uStiCe S_tatiStiCS (Oct. 2006), https://bjs.ojp.gov/content/pub/pdf/dudsfp04.pdf.

9         Ingrid A. Binswanger et al., Release from Prison—A High Risk of Death for Former Inmates, 356(2) N e_Ngl J m_ed 157 (Jan. 2007), https://www. ncbi.nlm.nih.gov/pmc/articles/PMC2836121/.

10       E. Ann Carson, Mortality in Local Jails, 2000–2019 – Statistical Tables, B_{ureau of} J_uStiCe S_tatiStiCS, https://bjs.ojp.gov/content/pub/pdf/ mlj0019st.pdf.

11       Id.

12       Id.

13       John Marsden et al., Does Exposure to Opioid Substitution Treatment in Prison Reduce the Risk of Death After Release? A National Prospective Observational Study in England, 112 a_ddiCtioN 1408 (Feb. 4, 2017), https://onlinelibrary.wiley.com/doi/10.1111/add.13779.

14       Traci C. Green et al., Postincarceration Fatal Overdoses After Implementing Medications for Addiction Treatment in a Statewide Correctional System, 75(4) J_ama P_SyCHiatry 405 (2018), https://jamanetwork.com/journals/jamapsychiatry/fullarticle/2671411.