Client Alert: Opioids and Addiction Health Challenges in the Pandemic

Priority Update: Crisis Collision

Opioids and Addiction Health Challenges in the Pandemic

In November 2021, the Centers for Disease Control (CDC) released a provisional report with updated overdosing statistics for the United States. The numbers were disturbing, confirming that the onset of the Covid-19 pandemic accelerated and intensified the opioid epidemic facing our nation. Between 2017 and the end of 2019, the highest fatality figure for any 12-month period was 70,000. The 12-month period ending in June 2021 saw a jump to 100,000 deaths attributed to opioid overdoses.

While it is appropriate to blame pandemic-related stresses, such as increased unemployment or lengthy periods of social isolation, for increased substance abuse, there are other dynamics that must also be considered. According to the CDC, opioid prescriptions have fallen 44% in the last decade, a trend which has continued during the pandemic. In 2020—the last year with a fully available dataset—opioid prescriptions fell in every state, with a total decrease of -6.9% across the country when compared to the year before. The decline can be attributed to significant negative pressure on physicians in recent years, reflected in licensing board and DEA investigations of opioid prescribers, as well as greater regulatory controls. (An example of the latter would be a requirement that physicians consult prescription drug monitoring programs (PDMPs), which are statewide electronic databases that flag patients trying to acquire identical opioid prescriptions from multiple providers.) If opioid prescriptions have fallen so far, why, then, are opioid-related deaths rising?

Unfortunately, as it has become increasingly difficult for people to access prescription opioids through the healthcare system, more and more Americans have turned to fentanyl and fentanyl analogs available from street dealers offering illicit and perilous opioid compounds often counterfeited to look like familiar prescription drugs. Fentanyl is 100 times more potent than morphine, and 50 times more potent than heroin. In other words, the bitter irony of the two decade crackdown on opioid prescribing is that the demand remains strong and the primary effect has been to redirect Americans to a significantly more toxic drug supply outside the healthcare system.

At the same time, the American Medical Association (AMA) laments how physicians who want to prescribe medications that treat addiction (such as buprenorphine, methadone, or naltrexone) continued to be stymied by tedious health insurer requirements necessary to attain prior authorizations. Meanwhile, insurees are similarly discouraged by health plans with prohibitive cost-sharing demands related to substance abuse treatment.

There are other ways in which Covid-19 is intersecting with the opioid epidemic. Opioid abuse consistently engenders harmful effects upon respiratory and pulmonary health. One late 2020 study, published by the National Institute on Drug Abuse, found that those recently diagnosed with an Opioid Use Disorder (OUD), were 10 times more likely to have Covid-19 than those without such a diagnoses. While those having an OUD diagnoses for some time, were twice as likely to have Covid. This susceptibility to Covid-19 puts addiction treatment providers in an unenviable position: as the pandemic endures, they are obliged to treat substance abuse while also attempting to minimize Covid-19 outbreaks in their facilities. This can often entail a conflict of rights between the group and the individual. To better illustrate this issue, the Journal Addiction Science and Clinical Practice (ASCP), presented an apt case study:

[A] patient was referred to the detoxification program on an involuntary commitment for withdrawal from alcohol. The patient presented as asymptomatic for COVID-19 […] and was awaiting test results[,] being placed in a room alone. Several hours after admission, despite a lack of symptoms, the test came back positive for COVID-19.

Such situations present treatment providers with several challenges: Ethically, should protection of patients and staff from Covid-19 outweigh the duty of care to a single individual? What sort of legal liabilities are entailed either by discharging a Covid-19 patient or allowing the patient to remain and thereby risking potential community spread? Lastly, there are financial concerns that may be especially critical when a facility is operating at a reduced capacity due to safety considerations mandated by the pandemic.

Providers want to make the best treatment decisions promptly. But doing so can be problematic when there are multiple dilemmas that must be carefully navigated. Substance abuse leadership has also lagged during the pandemic. As the ASCP noted: “Guidance from government or professional associations can be helpful, but may not be timely or adequately nuanced to address specific local scenarios.” However, despite all the challenges facing behavioral health providers, the challenges confronting those who need but cannot access recovery programs due to the pandemic, remain considerably graver.

Nelson Hardiman LLP
Healthcare Law for Tomorrow

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Authored By:

Yehuda Hausman, Law Clerk

Harry Nelson, Managing Partner

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*This article is provided for educational purposes only and is not offered as, and should not be relied on as, legal advice. Any individual or entity reading this information should consult an attorney for their particular situation.*