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November 8, 2018

The US Opioid Crisis: Current Federal and State Legal Issues.

By Michael H. Joseph

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Drug overdose deaths involving prescription opioid pain relievers have increased dramatically since 1999. Concerted federal and state efforts have been made to curb this epidemic. In 2011, the White House released an interagency strategy for Responding to America’s Prescription Drug Crisis. Enacting this strategy, federal agencies have worked with states to educate providers, pharmacists, patients, parents, and youth about the dangers of prescription drug abuse and the need for proper prescribing, dispensing, use, and disposal; to implement effective prescription drug monitoring programs; to facilitate proper medication disposal through prescription take-back initiatives; and to support aggressive enforcement to address doctor shopping and pill mills and support development of abuse-resistance formulations for opioid pain relievers.

Improvements have been seen in some regions of the country in the form of decreasing availability of prescription opioid drugs and a decline in overdose deaths in states with the most aggressive policies. However, since 2007, overdose deaths related to heroin have started to increase. The Centers for Disease Control and Prevention counted 10,574 heroin overdose deaths in 2014, which represents more than a fivefold increase of the heroin death rate from 2002 to 2014. The relationship between prescription opioid abuse and increases in heroin use in the United States is under scrutiny.

The United States is in the midst of a devastating opioid misuse epidemic leading to over 33,000 deaths per year from both prescription and illegal opioids. Roughly half of these deaths are attributable to prescription opioids. Federal and state governments have only recently begun to grasp the magnitude of this public health crisis. In 2016, the Centers for Disease Control and Prevention released their Guidelines for Prescribing Opioids for Chronic Pain. While not comprehensive in scope, these guidelines attempt to control and regulate opioid prescribing. Other federal agencies involved with the federal regulatory effort include the Food and Drug Administration (FDA), the Drug Enforcement Agency (DEA), and the Department of Justice. Each federal agency has a unique role in helping to stem the burgeoning opioid misuse epidemic. The DEA, working with the Department of Justice, has enforcement power to prosecute pill mills and physicians for illegal prescribing. The DEA could also implement use of prescription drug monitoring programs (PDMPs), currently administered at the state level, and use of electronic prescribing for schedule II and III medications. The FDA has authority to approve new and safer formulations of immediate- and long-acting opioid medications. More importantly, the FDA can also ask pharmaceutical companies to cease manufacturing a drug. Additionally, state agencies play a critical role in reducing overdose deaths, protecting the public safety, and promoting the medically appropriate treatment of pain. One of the states’ primary roles is the regulation of practice of medicine and the insurance industry within their borders. Utilizing this authority, states can both educate physicians about the dangers of opioids and make physician licensure dependent on registering and using PDMPs when prescribing controlled substances. Almost every state has implemented a PDMP to some degree; however, in addition to mandating their use, increased interstate sharing of prescription information would greatly improve PDMPs’ effectiveness. Further, states have the flexibility to promote innovative interventions to reduce harm such as legislation allowing naloxone access without a prescription. While relatively new, these types of laws have allowed first responders, patients, and families access to a lifesaving drug. Finally, states are at the forefront of litigation against pharmaceutical manufacturers. This approach is described as analogous to the initial steps in fighting tobacco companies. In addition to fighting for dollars to support drug treatment programs and education efforts, states are pursuing these lawsuits as a means of holding pharmaceutical companies accountable for misleading marketing of a dangerous product.

Our Westchester criminal defense attorneys know that opoid addiction is a disease and that the criminal justice system penalizes addicts. Our criminal defense attorneys in White Plains have had significant success in achieveing favorable outcomes for addicts charged with possession of drugs (criminal possession of controlled substance), and even sales of drugs, by getting the addicts into treatment programs and even judicial diversion.

 
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