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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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

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.

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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