Opioid Legislation Update: Sixth Circuit

July 27th, 2017 by CHHS RAs

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 Sixth 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 Sixth Circuit is composed of Kentucky, Michigan, Ohio, and Tennessee

Recent trends in opioid legislation in the Sixth Circuit are not as expansive as in some prior circuits, however these states boast some of the strictest regulations directed at the opioid epidemic. For example, Kentucky Governor Matt Bevin recently signed HB 333 into law, which expands the list of restricted opioids and limits prescriptions to just three days. Kentucky has made strong legislative moves in the past that have led to large drops in opioid use, particularly among injured workers, so this latest measure may just be another push to lower the number further.

Michigan, on the other hand, has seen sharp increases in opioid deaths, a 13% increase from 2014 to 2015; nearly 2000 deaths in total. The Michigan House approved a few bills on June 13th. The full legislative package is extensive and included a lot of familiar measures, such as adding new requirements to Michigan’s prescription drug monitoring program (called the Michigan Automated Prescription System, or “MAPS”, and launched in April) and creating prescribing limits for opioids—30-day supply for chronic pain, and 7-day supply for acute pain. Some interesting measures in the package include a requirement that schools educate students on the dangers of opioids as part of the health education curriculum and a measure that protects pharmacists who reasonably refuse to fill a prescription from civil liability. There had been a proposed amendment to give pharmacists more power to report problem physicians, but the amendment failed. Had it succeeded, it would follow the trend in some states of having punitive regulations against doctors, and may have caused a great deal of friction between the two professions. While the Michigan legislative package will likely not be addressed in the Senate until September, if signed into law it could help reverse the overdose trends in Michigan. Michigan was also recently among 41 other states that received a large settlement from Johnson & Johnson over a botched recall of an unrelated drug (although Johnson & Johnson does produce prescription opioids), and Michigan Attorney General Bill Schuette has proposed using that money to fund public health efforts combating the opioid epidemic.

Speaking of lawsuits, Ohio is among a growing number of states that have filed suit against several pharmaceutical companies, including Johnson & Johnson, for the companies’ alleged contributions to the rising opioid epidemic. On the legislative front, however, there has been more difficulty reaching solutions. While more than $160 million in federal funding has been allocated to Ohio to combat the opioid epidemic, state legislators seem to have deciding how to use that funding. While dozens of bills have been introduced, most seem to fail for partisan reasons, where in other states, such as Maryland, such laws seem to enjoy broader bipartisan support. While Ohio has passed laws in the past, some of which had failed for political reasons in years prior, recent focus seems to be at the federal level, with Sens. Brown and Portman introducing bills that would increase access to opioid treatment and expand Medicaid coverage for substance-abuse treatment facilities—measures that would have a great impact in their native Ohio. The senators, as well as Ohio Governor John Kasich, have also been critical of GOP plans to repeal and replace the Affordable Care Act, especially the cuts to Medicaid programs on which Ohioans depend.

Tennessee follows a similar narrative as Ohio, where several Tennessee counties, although not the state itself, have filed a lawsuit against major pharmaceutical companies for the harms caused by opioids the companies produce. The lawsuit relies in part on the state’s controversial “crack tax” law, which creates liability on drug dealers for the harms caused by the drugs. The law itself shares similarities with “Laree’s Law,” which recently passed the New York State Senate. On the legislative front, Tennessee is having more success than Ohio, where a few bills have been signed into law earlier this year. This includes SB 458, which authorizes schools to keep a supply of Naxalone in the school, and HB 1209, which requires “any person treated for a drug-related overdose with an opioid antagonist by a first responder be taken to a medical facility by emergency medical services for evaluation, unless the person is competent to refuse medical treatment and chooses to refuse treatment.” Additionally, “pain management clinics across the state are now required to be licensed and subject to regular and surprise inspections.”

While the Sixth Circuit states have not passed as much legislation in the current year as other circuits, this may be for various reasons. Kentucky has an extensive existing legal regime governing opioids, and Michigan has its own comprehensive package in development. While not as successful on the legislative front, Ohio was among the first states to file suit against pharmaceutical companies, as is Tennessee. Importantly, in examining this circuit we see the interplay between state and federal laws, with states like Ohio and Tennessee relying extensively on federal support, typically in the form of Medicaid.

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