Litigation Approaches to Expanding Access to Medications for Opioid Use Disorder

By: Joey Longley

Litigation has dramatically changed the substance use disorder policy landscape over the past decade. Over $50 billion in opioid settlements from pharmaceutical companies, distributors, pharmacies, consultants, and others are hitting state and local coffers now — offering an unprecedented opportunity to invest in the continuum of care to save lives.

Meanwhile, a separate wave of litigation is re-shaping the way jails and prisons care for people with opioid use disorder, as lawsuits seeking to require jails and prisons to provide medications for opioid use disorder (MOUD) to all people for whom it is clinically indicated proliferate in courts across the country.

The data is clear: MOUD saves lives. Treatment of opioid use disorder with methadone and buprenorphine—two of the three FDA-approved MOUDs— is associated with a 50% decrease in mortality.

People in jails and prisons experience opioid use disorder at far higher rates than the general population, and MOUD during and immediately after incarceration is essential. Release from incarceration is an extremely dangerous time for this population, especially for people who have been denied MOUD during incarceration. Recently incarcerated people who did not have access to MOUD in jail or prison are dozens of times more likely than the general population to die of an overdose in the weeks following release. For those recently release from jail or prison, access to MOUD was associated was a 75% decrease in all-cause mortality and an 85% decrease in overdose deaths in the month following release.

Denial of MOUD access for incarcerated people is not just wrong—it is also illegal. With court victories in Massachusetts, Maine, New York, and West Virginia, as well as settlements and other positive resolutions in Washington state, Kansas, Illinois, and New Mexico, the legal groundwork is shifting in the direction of requiring access to this lifesaving care. In 2022, The U.S. Department of Justice released guidance re-affirming that denial of MOUD can amount to a violation of the Americans with Disabilities Act, and the DOJ has settled several cases requiring jail and prison facilities to provide access to MOUD.

Many of the legal cases on this topic thus far have been “injunctive,” meaning they seek only changes to policies and practices, requiring the jail or prison to provide MOUD, but not seeking monetary damages for failure to provide care. That too is changing. Recent lawsuits in West Virginia, Maine, and New York have brought damages claims against jails and prisons that have failed to provide adequate care. If these cases succeed, jails and prisons that fail to provide MOUD risk not only a time-consuming and expensive lawsuit, but also the possibility of owing large damages awards for the pain, suffering, and even the wrongful death of people in their custody to whom they denied adequate medical care.

A strong policy push at the federal, state, and local levels to expand access to MOUD for incarcerated people has also made a big difference. The federal government launched the Medicaid Reentry Section 1115 Demonstration Opportunity, allowing states to apply to receive federal Medicaid matching funds for certain pre-release services—including MOUD—in the last 90 days of incarceration. The Bureau of Justice Assistance has funded expansion of MOUD services in jails. And the federal Bureau of Prisons is in the process of launching MOUD programs in all of its facilities. Sixteen states now require access to MOUD in jails, prisons, or both.

Today, 22.1 percent of jails provide buprenorphine maintenance to people who were already on buprenorphine in the community, and 16 percent of jails provide methadone maintenance to people already on methadone in the community. While these numbers represent real progress from the handful of jails providing MOUD just a few years ago, there is so much more work to be done. Many people in jail or prison have an opioid use disorder but were not able to access MOUD in their communities. Jails and prisons must provide those people, too, with clinically appropriate MOUD care.

And while litigation has been an important tool to make policy change and expand MOUD access in jails and prisons, litigating in each and every jurisdiction in the country would take many years. That’s why the use of opioid settlement dollars to enact policy change and provide MOUD in jails and prisons is such a critical opportunity to save countless lives. With over $50 billion of settlement dollars starting to go to states and other local jurisdictions over the next two decades, localities should use some of their settlement dollars to establish MOUD programs in their state prisons and local jails.

Investment in MOUD in jails and prisons is an investment directly in the health and well-being of incarcerated people with substance use disorder. Further, studies show that MOUD not only saves lives, but also reduces recidivism.

This investment is a critical step towards improving access to care, treatment, and support for people with opioid use disorder. But MOUD in carceral settings alone is not enough. When incarcerated people with OUD are released, they need places to go to receive treatment and service providers to see them. They need probation and parole departments, and housing providers, that don’t illegally discriminate against them for their use of MOUD. People who aren’t ready for treatment still need and deserve life-saving harm reduction services. Communities must think expansively and comprehensively about investing the $50 billion in opioid settlement money across the continuum of care and services—including in harm reduction, workforce development, community treatment, and MOUD in jails and prisons—to establish sustainable, widespread, and meaningful access to lifesaving care and treatment.

Joey Longley is a staff attorney at the American Civil Liberties Union’s Disability Rights Program, where he previously was an Equal Justice Works Fellow at the National Prison Project. He previously served as a Senior Advisor at the Office of National Drug Control Policy in the Biden-Harris Administration, a Project Director at the O’Neill Institute for National and Global Health Law, and a law clerk for Judge Roy McLeese of the D.C. Court of Appeals.