Opioid Legislation Update: Fifth Circuit

July 17th, 2017 by CHHS RAs

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By CHHS RA Bach Nguyen

Note: This is part of an ongoing series of posts covering recent state legislative efforts to address the nationwide opioid epidemic. The posts are organized by federal judicial circuit, with this post covering the Fifth Circuit. As a reminder, in the federal court system, a circuit court hears appeals from a group of states, usually based on geographical region, though some exceptions exist. In this case, the Fifth Circuit is composed of Louisiana, Mississippi, and Texas.

Geographically and culturally, the Fifth Circuit is a very different region than the Northeast and East Coast regions of the previous four circuits. While Fifth Circuit states still face numerous challenges from the opioid epidemic, there are differences in the measures taken, perhaps owing to regional differences. One significant difference is that opioid morbidity and mortality seems to be significantly underreported in some parts, where the lack of good data makes it difficult to respond to the crisis. Despite this, there are still some similarities.

Similar to many states in the first four circuits, Louisiana recently enacted a law designed to better track and ultimately reduce opioid prescriptions. The law requires, among other things, that “anyone licensed to prescribe opioids be automatically enrolled in the state’s prescription drug monitoring program, or PDMP, which allows users to monitor individual patients’ prescription records.” While many states have similar programs, this law appears to target physicians, similar to the Delaware law that allows the state to refer suspect providers to law enforcement. This has raised concerns of the government potentially inappropriately interfering with providers’ professional judgment and medical expertise, and it will be necessary for those overseeing the program to strike a balance in allowing physicians to perform their work while still monitoring suspect cases. Two other laws that have been signed include HB 192, which limits first time opioid prescriptions for acute pain to seven days, and HB 490, which creates an advisory council to develop policy recommendations for prevention and education regarding opioid abuse.

Mississippi is also adopting a few laws similar to what we have seen in other states. One such law expands access to Narcan/Naxalone to all first responders. Another law allows medical providers to write a standing prescription to family members or other civilians for Naxalone— which is similar to the order in Baltimore that established a standing prescription to all Baltimore City residents. It is important to note that the Baltimore order has already been written to all Baltimore City residents, where the Mississippi law adopts a less aggressive role in that a statewide prescription has not been written. Instead, individual physicians can write prescriptions as they see fit. Lastly, Mississippi in particular is notable for being among a few, yet growing number of, states that have filed a lawsuit against opioid pharmaceutical companies for damages caused by opioids.

Similar to Mississippi, Texas signed a law expanding access to Naxalone in 2015; however, advocates say very little progress has been made since the enactment of the law. While the law makes a standing prescription possible, such a prescription was not made until nearly a year after the passage of the law, highlighting the important difference in the Mississippi law above and the Baltimore order that has already granted civilians access to Naxalone. In Baltimore, the order has already been signed by the Health Commissioner, where in Mississippi, there is no generalized prescription and it may take a great deal of time for needed prescriptions to be issued. The concerns over Texas’ response to the opioid epidemic do not stop there. Last year, Texas state officials failed to submit a grant application that could have awarded the state $1 million in order to purchase Naxalone. In the past year, a bill has been filed that would make stealing of controlled drugs from healthcare providers a third degree felony, however no action has been taken on the bill since April 25th. Many advocates worry about underreporting of information related to the opioid epidemic in Texas, which not only creates difficulties in designing measures to address the crisis, but also in assessing the effectiveness of existing measures.

While some measures in the Fifth Circuit states are very similar to other states, such as Louisiana’s limit on first-time opioid prescriptions and it’s prescription drug monitoring program,  the variations could cause very different results. As states such as Texas seem to struggle with its response, in part due to underreporting, it is important to remember the interconnectedness of the issues and how solving problems of the opioid epidemic not only requires a broad and collaborative effort, but also has wide-reaching consequences.

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