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lhe U€veloping Righl to Modication-Assistod Treatment for Opioid Use Disorder in Jails and Prisons I New York Law Joumal
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The Developing Right to Medication-AssisteTreatment for Opioid Use Disorder in Jailsand PrisonsBy Mark Goldcll | oe(ember 14, 2018 at 02:30 PM
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2t2t2019 The D€v€loping Right to Medication-Assisted Treatrnent for Opioid Use Disorder in Jails and Prisons I New York Law Journal
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Recent significant legal developments may convince.iails and prisons throughout the
nation to meaningfully address the opioid and fentanyl epidemic that pervades
correctional centers and society in general. A preliminary injunction was granted by a
federal district courtjudge in Massachusetts requirinB a countyjail to administer
methadone to a person entering the institution with opioid use disorder (OUD).
Across the nation, a federal district court judge in Oregon approved a multi-million
dollar senlement of a wrongful death claim brought by the family of a woman who
died in custody without being administered medication or any other treatment for
opioid withdrawal.
Medication Assisted Treatment for OUD
5
OUD is an epidemic that claims the lives of 115 Americans, on average, each day. See
Centers for Disease Control and Prevention, Qpioid Overdose: UnderstandinS.llhe
EEitlcmiq0ttpr/wwwJd&govldruSoverdole/epitlcois). ln 201 7, more than
70,000 Americans died from overdoses. The statistics reporting the number of
people who have died from overdoses on Long lsland and throughout the state of
New York are grim. The incidence of deaths from opioid overdose are higher in New
York than the nationwide rate. see Natignal lnstltute on Drug Abuse: New York
Apioituu4oilyl htlpszvvlwdruF!$e,Seudrsgs-abuse/o pioit rlonioiGsu,!nmariq :by:stalelneEyofkoplald:sxmmrry) (February 201 8). Two of the
highest rates in the state are found in Nassau and Suffolk Counties. See New York
State Department of Health, QpioidSnnxelBepllt(hltps/yvvvw,neaxh,ny,sovl$alistirslopioiludrtalplrfltrys.-epioidimualGpo4l,lzpt n(october 2017).
Medication Assisted Treatment (MAT) is the gold standard of care for treatment ofindividuals suffering from OUD. "MAT involves the use of FDA-approved
pharmaceutical medications, including methadone, buprenorphine and naltrexone,
in combination with counselin& behavioral therapy, and other interventions for the
treatment ofsubstance use disorders;' Pesce v. Coppinger,2OlS WL 6171881, at *2,
case No. 1 8-cv-1 '1972-DJC (D. Mass. Nov. 26, 2018). Among other things, these
medications suppress withdrawal, reduce cravings for the opioid, and with some
medications, prevent users from experiencing a high from opioid use. The
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Although some jails and prisons have piloted programs for the administration of
MAT to men and women prisoners suffering from OUD, these programs are few and
far between. The state of Rhode lsland has developed the most comprehensive
state-wide protocols for administering MAT in the correctional context. See NPR,
Rhode lsland Prisgns Push to Get lnmates the Best Treatment for OplOid
Addlction (hlBps:/lw.EpLllglse$iotrslhsellh:shots/201 8/ ! 'l /'l 9166834Oq14/r,h od e-isla n d-pdsO0s:pltsh:lgCet-in m ates-tlr e-
best-treatment-for-opioitLalrlucior) (Nov. 19, 2018). New York City and
connecticut have also implemented MAT programs in their jails.
The risk of overdose death for prisoners being released into the community from
prisons and jails increases exponentially. This phenomenon is a function of the
decreased tolerance to opioids arisinB from abstinence while incarcerated. For
example, "the opioid-related death rate in Massachusetts is 120 times higher for
people released from jails and prisons as compared to the rest of the adult
population." Pesce v. Coppinger, at+2.
The vast majority of correctional institutions and government agencies managing
iails and prisons refuse to provide MAT to their populations who need it. With limited
exceptions, the states of Maine, Massachusetts, and Washington were in the
mainstream of states that failed to provide MAT to incarcerated people sufferinB
from OUD. That status quo is changing.
Recent LawsuiG and Rulings
Pesce v. Coppinger. on Nov. 26, 2018, U.S. District Court Judge Denise J. Casper of
the District of Massachusetts granted a preliminary injunction requiring the Essex
County House of Corrections to administer methadone to plaintiff Geoffrey Pesce.
The case was brought on behalf of Mr. Pesce by Goodwin Procter and the American
Civil Libenies Union Foundation of Massachusetts. Mr. Pesce brought claims under
the Eighth Amendment and Title ll of the Americans with Disabilities Act (ADA). Mr.
Pesce argued that he was likely to succeed on the merits of both claims, because (1)
the denial of MAT would constitute deliberate indifference to his serious medical
needs in violation of the constitutional proscription against cruel and unusual
punishment, and (2) he is a person with a disability and the denial ofthe benefits ofMAT would be discriminatory.
At the time of commencement of the action, Mr. Pesce was about to be sentenced toperiods of incarceration arising from a violation of probation and a conviction for
operating with a suspended license. ld. at *3. Mr. Pesce had long struggled with
OUD. but was successfully recovering since late 2016 with the assistance of a daily
dosage of methadone. ld. at *2. Medical evidence established that without the
continued administration of methadone, Mr. Pesce's tolerance would be significantly
reduced and he would be at great risk for relapse. ld.
2ru2019 Th6 Doveloping Right to Medication-Assistgd Treatment for Opioid Us€ Oisorder in Jails and Prisons I New Yor* Law Joumal
administration of MAT effectively conditions a use/s brain away from opioid use and
allows people afflicted with oUD to lead or resume healthy and prodrrctive lives. see
Declaration of Dr. Ruth A. Potee, Document No. 17, submitted in Pesce v. Coppinger.
OUD and Correctional lnstitutions
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2l2DO19 The Developing Right to Medication-Assisted Treatment for Opioid Use Disorder in Jails and Prisons I New York Law Joumal
The lawsuit sought an injunction requiring the Essex House of Correclions to provide
methadone to Mr. Pesce during his incarceration. Claims were brought under the
ADA as well as the Eighth Amendment. The district court determined that there was
a substantial likelihood of success on both claims.
Under Title ll of the ADA, a plaintiff must demonstrate that he:
(1) is a qualified individual with a disability; (2) was either excluded from
participation in or denied the benefits of some public entiqy's services, programs,
or activities or was otherwise discriminated against; and (3) that such exclusion,
denial of benefits, or discrimination was by reason of the plaintiffs disability.
ld. at *6 (internal quotations omitted).
Further, the district court determined that the denial of MAT to Mr. Pesce would
constitute deliberate indifference to his demonstrated medical needs, and therefore
Mr. Pesce was likely to succeed on his Ei8hth Amendment claim. ld. at *8. ln
evaluating the claim, the district court applied both an objective and subjective
inquiry.'The objective pronS requires the plaintiff establish that his medical need is
or was sufficiently serious, meaning it was either diagnosed by a physician as
mandating treatment or is so obvious that a layperson would recognize the need for
medical assistance." ld. at *7 (internal citation and quotation marks omitted). The
subjective inquiry requires a plaintiff to establish that defendant acted with intent or
wanton disregard when providing inadequate medical care. ld. The former was easily
determined by the medical proof submitted in support of Mr. Pesce's motion, while
the latter was determined in his favor because of the "blanket poliry prohibiting the
use of methadone treatment at [the facility]." ld.
Additionally, the district court observed that Mr. Pesce demonstrated a significant
risk of irreparable harm in the absence of MAT, and that a balance of the equities
and service of the public interest were in his favor. "mhe Court concludes that the
balance of harms betyveen the parties tips in Pesce's favor and the public interest is
better served by ensuring Pesce receives the medically necessary treatment that will
ensure he remains in active recovery." ld. at *8.
The order grantinS Mr. Pesce's motion for a preliminary injunction is a landmark
decision and the first that mandates MAT for prisoners suffering from OUD. lt may
soon have company.
Other MAT LaYYsuits
At least tlvo other actions are pending in federal district courts requesting the
administration of MAT to inmates presenting with OUD.
ln the first, a comprehensive settlement agreement requiring that MAT be provided
durinS a nine-month (and on€ day) sentence of imprisonment was docketed on Sept.
28,2018 in Smith v. Fitzpatrick, Case No 18-cv-00288-NT (Document No. 3O). plaintiff
Zachary Smith is represented by the American Civil Liberties Union of Maine
Foundation and the American Civil Liberties Union National prison project, allegingsimilar claims to those brought by Mr. pesce in the lvlassachusetts federalcourt.
4t8
The district court determined that Mr. Pesce is a qualified person with a disability,
that medical care provided to prisoners is a service, and that denial ofthe benefits of
MAT to Mr. Pesce would be discriminatory. ld. at *5-*7.
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2l2n$9 The Developing Right to Medication-Assisted Treatment for Opioi, Uss Oisord€r in Jails 8nd Prisons I N€w Yort Law Joumal
The other is a class action commenced in June 2018 by both a sentenced prisoner
and a pre-trial detainee confined in the whatcom county Jail, state of washington.
The action is entitled Kortlever v. Whatcom County, Case No. 18-cv-00823-JLR.
Plaintiffs are represented by the American Civil Liberties Union of Washington
Foundation. The claims are limited to those arising under the ADA there is no
constitutional claim. According to the docket entries, proceedings have been recently
adjourned pending settlement discussions.
No precedential findings or decisions have been made in either the Smlth or
Kortlever matte,s.ln the Smlth settlement agreement, the Maine Department ofCorrections expressly denies that it is mandated to provide MAT to prisoners
diagnosed with OUD, but nevertheless agreed to "order, dispense, and administer
Plaintiff buprenorphine or an equivalent medication throughout the course of his
nine-month-and-one-day sentence of incarceration." smlth v. Fitzpatrick, Case No.
l8-cv-00288-NT, Document No.30, pp. 1-2.
The obligation to provide MAT in the correctional context is medically and morally
required. A growing number of cases have created a legal right to MAT, as well. The
risks of denying adequate OUD treatment in prisons and jails was recently exposed
in a federal action in Oregon in which the privately contracted healthcare provider in
a county jail agreed to pay a $10 million settlement to the family of a woman who
died in custody. "Corizon Payr_Otrl$10_Miltiarlglloruirg lnmate Death, Lawsult
ir-OGgoilhttps:Zwww,oplorylrcwvillidelj a i l-hea lth-preyirleEref izeElawsuit-l0-million-inmate-death-oregatr)," Dec. 7, 2018. Madaline Pitkin, then 26
years old, died in her cell while detoxing from heroin. she received no medication to
help her recover from withdrawal symptoms.
Conclusion
The National Sheriffs' Association and the National Commission on Correctional
Health Care have formally endorsed N4AT in Jails and prisons, and have developed
protocols for the safe administration of medication that simultaneously protect
against diversion of the medication to the general population. see Jail-BasedMedication-Assi$ ifg Practices, Guidelines,ltrtl
Relpurces for ihe Field (hfns:l\lwwwncchrcI8ljail-based-MAT) (October 201 8).
The model created and implemented in Rhode lsland is showing great results and
promise in stemming the tide of this epidemic.
On Long lsland, efforts are being led by Long lsland Congregations, Associations and
Neighborhoods (LI-CAN), a citizenJ organization that has sought to expand access
and remove barriers to evidence-based addiction treatment on Long lsland. OheNassau County Bar Association resolved to support and assist the efforts of LI-CAN
to respond to the opioid epidemic on Long lsland.) Ll-CAN has begun to brief county
and state policymakers on the recent legal developments and the need to ad.iust
treatment protocols in prisons and jails. "lncarcerated persons with OUD, like
anyone else with this deadly disorder, need the care oftrained addiction medicine
professionals," said LI-CAN Co-Chairperson Rev. Gideon Pollach. '?nd those doctorsneed to be able to prescribe and administer the most appropriate FDA-approved
medication for each patient, without unreasonable barriers imposed by non-medical
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2l2l2l'19 The Oeveloping Righl to Medication-Assisted Troat nsnt for Opioid Use Disordor in Jails and Prisons I New York Law Journal
officials. Until this standard of care is provided, ifs clear to us that the county jails
and other correctional facilities in New York not only are in violation of the ADA and
Eighth Amendment, but are failing to meet minimal moral standards as well."
Mark Goidell maintains a litigation practice in Garden City, N.Y. He is a Director ofthe Nassau County Bar Association and the former Chairperson ofthe Lawyer
Assistance Committee of the Nassau county Bar Association.
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