As previously discussed in our post from September 2017, the push for a response to the opioid crisis is gaining momentum. Enter the “Opioid Crisis Response Act of 2018.”

On May 7, 2018, the Opioid Crisis Response Act of 2018 (the “Bill”) was placed on the Senate Legislative Calendar after a unanimous vote out of the Senate Health, Education, Labor and Pensions Committee just weeks before on April 24. A showing of legislative commitment and intent, the Bill begins to tackle many of the key issues underlying and exacerbating the epidemic, though stakeholders remain concerned as to whether it goes far enough in light of the magnitude and complexity of the crisis.

Provisions & Recommendations

The Bill appoints the Departments of (i) Health and Human Services and (ii) Education and Labor as key federal actors, while also recognizing the need to situate control at state and local levels. The Bill incorporates and incentivizes a range of specific tactics, accounting for several levels of intervention. Key initiatives include:

Research & New Drugs: Directing the NIH and FDA to lead the country towards the approval of a non-addictive painkiller, and otherwise investing in the Ace Research Act to advance NIH research initiatives that respond to public health threats.

Changes in Prescription Practices: Working with the FDA to set prescription durations, encouraging states to share PDMP data, using alternative pain management methods and prominently displaying opioid history in medical records in accordance with appropriate disclosure protocols.

Data Collection & Monitoring: Collecting and actively monitoring relevant data, such as data on infections from injection drug use, the impact of federal and state laws on prescription durations and dosages, and individual state controlled substance overdoses.

Illegal Drug Control: Providing the FDA with access to technology to quickly identify illegal drugs at the border.

Aiding Physicians and First Responders: Increasing provision of relevant care in many ways, including by allowing providers to prescribe controlled substances via telemedicine and medication-assisted treatment, and by training first responders and providers to respond to opioid overdose situations.

Supporting Vulnerable Populations & Families: Providing support to particularly vulnerable populations, such as infants and youth, while also aiding families of those impacted by the opioid crisis.

State and Local Focus: Recognizing the need for targeted interventions by directing greater funds to states and Indian tribes with higher mortality rates as well as opioid recovery centers, and providing workforce training to mental health workers and those affected by the crisis.[I]

The Big Picture and The Bigger Picture

In many ways, the Bill is comprehensive, public health focused, and actively calls attention to the issue. It mobilizes a variety of agencies, recognizes that different vulnerable populations may have differing needs, and addresses the importance of supporting local, community-based efforts. Additionally, the Bill incorporates a few of the recommendations from the Interim Report issued by the Administration’s Commission on Combating Drug Addiction and the Opioid Crisis (e.g., the Bill’s inclusion of commitments to improving access to medication-assisted treatments and supporting provider education).

Notwithstanding the foregoing, some stakeholders remain concerned that the Bill does not do enough to address the magnitude and/or complexity of the opioid epidemic. Some stakeholders caution that there simply is not enough funding to make a real difference in the crisis. Currently, the Bill does not provide for much of an increase in spending to be directed towards initiatives therein, leaving most of the resources to come from the $4.65 billion of allocated opioid funding provided in the Bipartisan Budget Act of 2018. Similarly, the funding under this act for FY 2019 is still subject to the appropriations process and what happens beyond 2019 has yet to be determined. Guaranteed, sustained funding is a cornerstone of the successful implementation of many of the initiatives that could truly make an impact, from buying expensive treatment medications to keeping recovery facilities open and operating in the long run.

Others argue that the Bill either fails to address certain critical initiatives or does not otherwise go far enough. Some argue that the bill should go even further into the public health realm to address root causes, such as socioeconomic status and mental health.

Opponents and proponents thereof are ultimately arguing about how best to proceed. If the Bill falls short, is a step in the right direction better than no step at all? Can we afford to watch and wait while we identify best practices? Or, is it critical to lead on a strong platform so as to avoid entrenchment in a less-than-perfect one? How do we manage both the big picture and the bigger picture?

We will follow the Bill through its turn in the Senate and report back; we think it is likely that there will be some fine-tuning of the text from its current state.

* Dhara Waghela is a summer associate in Sheppard Mullin’s Century City Office

[i] S. 2680, The Opioid Crisis Response Act of 2018 Summary, available here