Public Health Law Watch
An initiative of the George Consortium

Public Health Law Watch blog

                            

Behind Schedule -- Reconciling Federal and State Marijuana Policy [from The New England Journal of Medicine]

This piece originally appeared in The New England Journal of Medicine

By Rebecca L. Haffajee, Robert J. MacCoun, and Michelle M. Mello

The long-standing chasm between federal and state marijuana policy recently widened when U.S. Attorney General Jeff Sessions rescinded Obama-era guidance indicating that the Justice Department would not make it a priority to prosecute federal marijuana crimes in states where the activities are legal. At present, a budgetary amendment is the only legal barrier to Justice Department enforcement of the Controlled Substances Act (CSA) against users and sellers of medical marijuana in the 30 states that have legalized it. Nothing prevents federal prosecution of recreational marijuana activities in jurisdictions where they are legal. However, spurred by Sessions’s policy, Senator Elizabeth Warren (D-MA) introduced a bipartisan bill in June 2018 (S.3032) that would exempt most marijuana-related activities from CSA application when they’re allowed under state or tribal law — legislation that President Donald Trump says he will support. As the marijuana-policy terrain shifts, it’s important to consider the potential public health benefits of closing the federal–state divide.

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Elisabeth Ryan
A Heartbreaking Tale Underscores Why Massachusetts Corrections Facilities Need to Offer Medication Assisted Treatment for Opioid Use Disorder

By Elisabeth J. Ryan

Last month, I wrote about Massachusetts criminal justice reform and lamented that a clause allowing medication assisted therapy in correctional settings had been removed from the final bill…According to the Boston Globe, however, a change in the policy is "gaining momentum - but slowly." Twenty-six groups continue to advocate for medication assisted treatment to be required in Massachusetts jails and prisons, emphasizing that, "The science and research on this is clear. To wait any longer to do this is just going to result in needles loss of life," according to the chief executive of the Association for Behavioral Health Care. The Globe story features the heartbreaking tale of a mother who had struggled with her own substance use disorder and then lost her 27-year-old son to an overdose the same day that he was released from pretrial custody. Stephen Gonzalez had been on prescribed methadone for five years prior to being arrested. The Suffolk County jail, per policy, did not provide him with the methadone while holding him in custody. His brutal withdrawal sent him into "unbearable pain." With a diminished tolerance, he sought heroin almost as soon as he got out to attend his stepfather's funeral. The overdose killed him, leaving his mother "to bury her husband and her son in the same week."

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Elisabeth Ryan
Medicare is Not Going Broke [from philly.com]

By Robert I. Field

Have you heard the news? Medicare will run out of money in just four years. Can the program survive?

Four years is the time until the Trust Fund that provides financial support for Medicare will become insolvent – that is, according to a prediction that the Fund’s Trustees made in 1997. Then in 1998, they upped the timeframe to ten years and in 1999 to 16. They shrank it back to 12 years in 2006 and to eight in 2009.

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Elisabeth Ryan
Massachusetts Denies the First "Compassionate Release" Application

By Elisabeth J. Ryan

In May, I wrote here about the new "compassionate release" program in Massachusetts that allows "incarcerated individuals diagnosed with a terminal illness - defined as an incurable condition that will likely cause death within 18 months - or those with 'permanent incapacitation' to request medical release before the end of their sentences. Ultimately, the decision is left to the commissioner of corrections or to the appropriate sheriff, who determines whether 'the prisoner will live and remain at liberty without violating the law and that the release will not be incompatible with the welfare of society.'" I also noted that, "How those in power will interpret that clause remains to be seen."  We now know that the first applicant has been denied.

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Elisabeth Ryan
The latest strategy to undermine Obamacare: challenge the constitutionality of a mandate that doesn’t exist [from Philly.com]

By Robert I. Field

Can a law be unconstitutional if it doesn’t exist? That may sound like an abstract riddle, like the proverbial tree falling in a forest, but it is central to a lawsuit challenging the constitutionality of the Affordable Care Act. The suit, brought by 20 Republican attorneys general, seeks to have the entire law thrown out, and the Trump administration recently announced its support.

The challengers’ argument goes like this. In 2012, the Supreme Court upheld the ACA’s mandate requiring all Americans to maintain health insurance or pay a penalty. The Court characterized the penalty as a tax, but one that is waived for the those who have coverage. Under this reasoning, the mandate is a tax penalty that comes under Congress’s broad power over taxation.

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Robert Field
SJC Rules in Correa v. Schoeck: Pharmacies Have a (Limited) Duty to Notify Physicians About the Need for Prior Authorization

By Elisabeth J. Ryan

Back in January of this year, the Center for Health Policy and Law (of which PHLW is a part) signed onto an amicus brief in support of the appellant-plaintiff in the Massachusetts case of Correa v. Schoeck. On June 7, the SJC ruled in the plaintiff's favor, reversing the lower court's order of summary judgment for the defendant pharmacy.  The court held that a pharmacy has a "limited legal duty to take reasonable steps to notify both the patient and her prescribing physician of the need for prior authorization each time [she] tried to fill her prescription." 

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Elisabeth Ryan
Motivated by increasing numbers of "deaths of despair," the AMA adopts new policies aimed at reducing gun violence

By Jennifer Lea Huer

Earlier this week the American Medical Association (AMA) House of Delegates held their annual meeting in Chicago, Illinois, during which delegates voted to adopt multiple policies related to firearms and gun violence. Some of these policies reinforce and enhance policy positions the AMA has supported for years, while other policies offer specific recommendations for legislation that is currently under consideration at the state and federal levels.

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Jason Smith
Massachusetts Criminal Justice Reform and Public Health: Part 2, Drug Crimes and Mandatory Minimum Sentences

By Elisabeth J. Ryan

In April 2018, Massachusetts Governor Charlie Baker signed a major criminal justice reform bill, the result of years of efforts by legislators and advocates to implement changes to many existing “tough-on-crime” laws. The bill, at more than 120 pages, contains a plethora of changes, including raising the minimum age for juvenile justice involvement from 7 to 12, restricting the use of solitary confinement, and eliminating mandatory minimums from most drug crimes except for trafficking. However, the bill also creates new crimes, like trafficking in carfentanil.

PHLW will be looking at various provisions of the bill and how they intersect with public health. In Part 1, we looked at the creation of “medical parole” in the Commonwealth. In today’s Part 2, we look at drug crimes and mandatory minimum sentences.

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One of the earlier versions of this reform bill contained a provision that would have allowed people with opioid use disorders to have access to medication assisted treatments (MAT) while in prison. That would have been a major public health triumph, as illustrated by its success in Rhode Island prisons. MAT remains the gold standard of care for opioid use disorders; studies show that people on MAT are more than twice as likely to remain opioid-free. Incarcerated individuals have much higher than usual rates of substance use disorders and are 129 times more likely to die of an overdose within two weeks of release from prison, compared to the general population.  The Rhode Island program that gave its incarcerated population access to MAT not only resulted in much higher rates of adherence to treatment after release, but also corresponded with a 12% reduction in overdose deaths statewide. Unfortunately for Massachusetts, which has one of the highest overdose death rates in the country, the provision that would have provided MAT is prisons did not make it to the final criminal justice bill. Instead, the bill takes a split approach to drug crimes – it reduces the reach of “school zone violations,” shores up “Good Samaritan” laws, and eliminates some mandatory minimum sentences, but it also creates a new trafficking crime with a new mandatory minimum sentence, which is what this part of our series focuses on.

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Elisabeth Ryan
Massachusetts Criminal Justice Reform and Public Health: Part 1, Medical Parole

By Elisabeth J. Ryan

In April 2018, Massachusetts Governor Charlie Baker signed a major criminal justice reform bill, the result of years of efforts by legislators and advocates to implement changes to many existing “tough-on-crime” laws. The bill, at more than 120 pages, contains a plethora of changes, including raising the minimum age for juvenile justice involvement from 7 to 12, restricting the use of solitary confinement, and eliminating mandatory minimums from most drug crimes except for trafficking. However, the bill also creates new crimes, like trafficking in fentanyl and carfentanil.

PHLW will be looking at various provisions of the bill and how they intersect with public health. First, we look at the creation of “medical parole” in the Commonwealth.

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Elisabeth Ryan
Policy Pathways to Address Provider Workforce Barriers to Buprenorphine Treatment [from American Journal of Preventive Medicine]

George Consortium member Rebecca L. Haffajee has a new article in the American Journal of Preventive Medicine focusing on some of the reasons why only 40% of people with opioid use disorder actually receive medication-assisted treatment. One major reason is that so few physicians are licensed to even prescribe buprenorphine (such as Suboxone). As the article details, numerous workplace barriers contribute to this lack of licensing, including insufficient training, lack of peer support, inadequate reimbursement, and regulatory hurdles.

For complete article with footnotes, please see:  https://www.sciencedirect.com/science/article/pii/S0749379718300746

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Elisabeth Ryan
It's Time for Uncomfortable Solutions to the Opioid Epidemic [from The Fix]

We are thrilled to present some work from brand new George Consortium member Abraham Gutman! This piece from The Fix discusses the fact that we need to get creative, and uncomfortable, in addressing the opioid crisis. Be sure to follow Av's great Twitter feed at @abgutman.

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The results of the War on Drugs: an America that is the most incarcerated nation in the world, a sharp decrease in the price of heroin, and a new Jim Crow for Black communities.

Not every problem has a solution that we are comfortable with. The opioid epidemic and the overdose crisis are two examples of such problems. There has been a lot of work by states and cities to tackle the epidemic and mitigate harm. Laws limiting opioid prescriptions have been enacted (controversially), DEA regulations on who can administer treatment were laxed, Prescription Drug Monitoring Programs were founded, and states of emergency were declared.

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Elisabeth Ryan
New Dangers For Immigrants and the Health Care System [from Health Affairs Blog]

PHLW's Wendy E. Parmet and Elisabeth J. Ryan co-authored an article posted on the Health Affairs Blog about the potential changes to the definition of "public charge" and how that will negatively impact health care and the health care system. 

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New Dangers For Immigrants And The Health Care System

By Wendy E. Parmet and Elisabeth Ryan

The Trump administration’s crackdown on immigrants may soon create new perils for the health care system if a set of proposed regulations by the Department of Homeland Security (DHS), leaked last month to the Washington Post, are promulgated. The regulations would dramatically expand the definition of “public charge,” a criteria used in immigration law to determine both admissibility to and deportability from the United States. As a result, many immigrants, including many low wage health care workers, may be deterred from using publicly-funded health care benefits to which they and their dependents, including their citizen children, are legally entitled.

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Elisabeth Ryan
Public Health Law Watch Comments on HHS Regulation Proposal: Protecting Statutory Conscience Rights

Public Health Law Watch, joined by our friends at the Public Health Law Center, submitted official comments to the U.S. Department of Health and Human Services proposed amendments to 45 CFR 88, "Protecting Statutory Conscience Rights; Delegations of Authority." Based on our combined expertise in public health law and policy, we offered comments on five main issues: (1) the lack of evidence that these rule revisions are necessary; (2) the absence of consideration for patients who face refusal of care; (3) the potentially dangerous expansion of existing definitions around “conscience protections;” (4) the potential harm these rules will cause for the LGBTQ population; and (5) the detriment these proposals would cause to reproductive health and rights.

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Legal Skills Through a Health Justice Lens: First-Year Northeastern Law Students Work Toward Health, Equity, and Justice for Two Oppressed Groups

We have a really special post today - George Consortium member Jason Potter describes his innovative work as a professor and the work of his students here at Northeastern University School of Law. These first year law students studied legal skills through a lens of health justice and turned health justice theory into practice by partnering with non-profit organizations and creating tangible guidance on issues of safe consumption facilities and barriers to health care for transgender individuals. The students will present their work at two upcoming community presentations - if you are local to Boston, please join us!

Law Office 7’s presentation of their research to the community, entitled, Establishing a Safe Consumption Facility in Massachusetts: An Interdisciplinary Review of Legal Barriers and Avenues to Harm Reduction, will take place on Thursday, Mar. 29, 2018, from 2:00-3:00 p.m. in 160 Dockser Hall (Forsythe Street entrance).

Law Office 8’s presentation of their research to the community, entitled Winning Gender-Affirming Care for Transgender Medicaid Recipients in New York, will take place on Thursday, Apr. 5, 2018, from 2:00-3:00 p.m. in 160 Dockser Hall (Forsythe Street entrance).

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The PORTAL Literature Scan for March

Every month, our friends at the Program on Regulation, Therapeutics, and Law (PORTAL) - part of a collaboration between Harvard Medical School and Brigham & Women’s Hospital - publish a great list of the best and most interesting studies, policy analyses, and editorials about regulation, therapeutics, and law. Below, we're featuring one in particular co-authored by George Consortium member Lainie Rutkow. You can find the rest of this month's list here:  https://www.portalresearch.org/literature-scan.html

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Medicaid Work Requirements Would Put Very Few People to Work [from philly.com]

[crosspost from Health Cents, philly.com]

By Robert I. Field

The Trump administration recently agreed to let states get tough on Medicaid recipients who don’t work. Kentucky was the first to win approval of a plan to kick those who can work but don’t off the roles, and at least ten other states would like to do the same. Under these plans, in order to maintain coverage, able-bodied adults would have to prove that they are either employed in some form or are actively trying to be.

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The Promising Potential of Gun Violence Protection Orders

By Elisabeth J. Ryan

While mass shootings account for just a small fraction of the more than 36,000 lives lost to firearms in the United States every year, these devastating, large-scale events have become not only more frequent but also deadlier in recent years. On February 14, a student who had been expelled from school returned to Marjory Stoneman Douglas High School in Parkland, Florida and killed 17 people using a high-powered AR-15 rifle. At first, the cycle of outrage, grief, “thoughts and prayers,” and demands for gun law reform seemed doomed to repeat and fizzle out, as they already had many times after many similar mass shooting tragedies. But something new emerged out of Parkland – the surviving students who refused to remain silent about gun law reform and refused to back down in the face of politicians and the NRA who advocate for fewer restrictions on guns, such as nationwide concealed carry reciprocity. But in large part due to the Parkland students’ indefatigable activism, the gun lobby has not been able to triumph again via a quiet return to the status quo. Instead, some serious and concrete discussions about gun law reform have taken place across the country. While some suggestions - like the President’s NRA-backed idea of arming teachers - are patently unrealistic; others – like “red flag” laws – have both potential political viability and established track records.

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Fighting Fire With Lighter Fluid: Trump Administration Housing Policy Proposals Would Exacerbate the U.S. Affordable Housing Crisis, Heightening Health Inequities

By Madeline Morcelle

Emerging policy proposals from the Trump administration would exasperate the U.S. affordable housing crisis, heightening heath inequities. On February 12, the Trump administration released its 2019 budget proposal, advocating for deep cuts to already chronically underfunded housing programs, as well as drastic rent increases and reforms to encourage “work and self-sufficiency” for low-income individuals and families receiving rental assistance. Draft legislation (1) leaked from the Department of Housing and Urban Development (HUD) earlier this month articulated these proposals in greater depth.

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