by Valarie Blake, Associate Professor of Law, West Virginia University College of Law
President Trump’s speech on the opioid epidemic last week was seen by many as an unproductive harkening back to the war on drugs. Trump focused on illicit street drugs, decrying criminals who deal those drugs and arguing that his border wall will stem the flow of heroin from Mexico. He stressed personal responsibility on the part of drugs users and threatened criminal liability, also promising a national campaign to discourage opioid abuse akin to President’s Reagan’s “Just Say No” campaign in the 1980s. Meanwhile, his declaration of a national public health emergency came without any commitment of federal funding.
Trump has good reason to frame the opioid epidemic as a black-market issue. His voters are the population hardest hit by the opioid epidemic who desperately need action, and these same voters embraced an agenda that would have the president address this crisis as we have addressed other illegal drugs.
Unfortunately, the cures needed for the opioid epidemic are different and are not so easily reconciled with Trump’s promises to roll back regulation and shrink government. Prescription painkillers are a legal market and the opioid epidemic is a story of under-regulation and under-enforcement of federal and state law. Federal agencies decide how many opioids to make, pharmaceutical companies make them, drug wholesalers distribute them to state-licensed healthcare providers who prescribe them, and patients use public or private insurance to pay for these legal pills at pharmacies. Every step in the stream of commerce of opioids is lawful and above ground (with the exception of those pills that get diverted and sold, or the heroin that many have turned to as a cheaper and more readily available alternative to prescription drugs). Deregulation is dangerous.
Take, for instance, the recent Washington Post and 60 Minutes investigation into the Ensuring Patient Access and Effective Drug Enforcement Act. This Act makes it nearly impossible for the DEA to freeze shipments of dangerously high quantities of opioids or to halt drug companies’ operations when they fail to comply with law, according to DEA Chief Administrative Law Judge John J. Mulrooney in a draft article. This effort to curb DEA power by drug lobbyists came after the DEA had fined drug wholesalers hundreds of millions of dollars for failing to report drug orders of “unusual size, orders deviating substantially from a normal pattern, and orders of unusual frequency.”
Without stringent enforcement by the DEA, we had cases like West Virginia, where more than 780 million hydrocodone and oxycodone pills poured into the state over a six-year period, amounting to 433 pills per citizen and driving overdose deaths of 1,728 people. Three drug wholesalers supplied these medications to state clinics and pharmacies, ignoring rules set by the state’s Board of Pharmacy that required they report suspicious amounts to the Board who, in turn, never enforced the rules. While those events happened prior to the Trump administration, they are exemplary of ways in which under-regulation and under-enforcement of the laws led to the opioid crisis and why further efforts to deregulate could prove a tremendous roadblock in achieving any progress in the future.
Under the Trump administration, efforts to repeal and replace the Affordable Care Act (ACA) or to stymie its efficacy would have immediate and irreversible harms for opioid users. Drug users have historically faced discrimination in accessing substance abuse treatment, which is integral to stop the growing rates of addiction and overdose. The ACA is the first law to mandate that insurers cover mental health and substance use disorder services through its essential health benefits provision. (Prior to the ACA, a law called the Mental Health Parity and Addictions Equity Act only mandated that insurers who choose to provide such services cover them in ways that are equivalent to how they cover other services.) An ACA repeal is an open invitation to insurers to stop providing access to these sometimes costly therapies, leaving those suffering from addictions with no opportunity for recovery.
A repeal of the Medicaid expansion would have similar effects, as a portion of opioid abusers are covered by Medicaid. The antidiscrimination protections in the ACA that prohibit health-status discrimination are also critical for opioid users. Private and public insurers have been doing tremendous work to create algorithms that can identify individuals who are at risk of abusing opioids so as to provide early interventions that avoid addiction. As I have argued elsewhere, this is an extremely promising and productive effort by insurers so long as protections are in place to prohibit insurers from using this information to then discriminate against substance abusers. An ACA repeal or replacement might allow health status discrimination to be reintroduced into insurance markets and insurers would have blueprints to identify which patients are at risk of costly addiction services and to remove them from health plans or increase their premiums.
While an ACA repeal and replacement seems to be on hold, efforts to strip away enforcement of the ACA through executive orders are also proving harmful to the opioid crisis. Trump’s October 12 Executive Order allowed certain innovation to occur in the insurance market which many believe will lead consumers to be able to drop ACA-compliant health coverage in favor of less robust plans. This might lead healthier people to drop out of more restrictive markets, driving up the cost of plans that cover more robust services like addiction treatment. Trump has also promised to end cost-sharing subsidies to insurers, which is expected to drive up premiums (and ultimately drive up the cost the federal government has to pay to subsidize those premiums). The effect may be costly, less easily accessible health insurance and instability in the markets.
While Trump may have promised deregulation, he owes his voters salvage from the wreckage of this horrible crisis. Experts in the opioid epidemic should emphasize how deregulation is harmful and ineffective in the context of opioids and why opioids require different remedies from illegal drug markets.