Recent court decisions mandating access to medications for opioid use disorder (MOUD) for people who are incarcerated have contributed to emerging state policy reforms.
State prisons and local jails are expanding access to such services to avoid running afoul of the Americans with Disabilities Act (ADA) and other federal law. Over the past several years, individuals in treatment for opioid use disorder (OUD) facing jail or prison time have brought lawsuits against local jails, state departments of corrections (DOC), and the Federal Bureau of Prisons to ensure access to treatment while incarcerated. Successful lawsuits primarily allege violations of the ADA (failure to accommodate a person’s disability; disparate treatment based on disability) and the Eighth Amendment of the Constitution that prohibits cruel and unusual punishment.
While many states have begun facilitating the provision of MOUD in state and local corrections facilities, a growing body of case law on the delivery of MOUD in correctional facilities is emerging.
- Prohibitions/limitations on the use of MOUD: In 2018, an individual with a pending 40-day jail sentence who had been taking buprenorphine for OUD sued the Aroostook County Jail in Maine, alleging that its policy banning MOUD violated her right to reasonable accommodation under the ADA. The First Circuit Court of Appeals upheld the lower court’s ruling, finding that the defendant was likely to succeed on her ADA discrimination claim. That same year, both the county jail and the state’s Department of Corrections were sued due to failure to provide MOUD, with similar results.
- Limiting services to medically supervised withdrawal and non-MOUD treatment: In 2018, an individual facing incarceration sued Essex County Jail in Massachusetts for its OUD treatment policies; the jail provided medically supervised withdrawal and other services, but not MOUD. The court compelled the jail to provide methadone to the plaintiff. The following year, the state’s DOC faced a similar lawsuit alleging inadequate access to treatment for incarcerated individuals based on a policy of tapering prescribed buprenorphine. The settlement agreement reached with the DOC required the department to provide the plaintiffs with MOUD consistent with individual treatment plans.
- Limiting MOUD access to pregnant women: In 2018, a class action lawsuit was brought against Whatcom County Jail in Washington State, which provided MOUD only to pregnant people within the facility. Whatcom County ultimately agreed to provide MOUD to all eligible individuals, including maintaining existing prescribed medication and starting individuals on MOUD treatment as medically necessary.
In response to the growing need for MOUD treatment in corrections settings and emerging case law, states are revamping policies that govern OUD treatment in corrections settings:
- Maine’s DOC began an MOUD pilot program in early 2019, which has since expanded state-wide. In collaboration with all fifteen of the state’s county jails, DOC created a model jail based MOUD policy. All fifteen county facilities provide MOUD (naltrexone and/or buprenorphine, and in some cases, methadone) to eligible individuals.
- Massachusetts’ DOC began offering naltrexone in 2014. In 2019, the state passed legislation requiring the provision of MOUD at the Massachusetts Alcohol and Substance Abuse Center at Plymouth, a unique state facility for both incarcerated individuals and people under civil commitment, as well as in three of the state’s correctional centers. The state has since begun offering all three FDA-approved forms of MOUD to incarcerated individuals.
- Washington State passed legislation in 2019 requiring city and county jails to provide MOUD to individuals who had been receiving treatment in the community prior to incarceration and to individuals 30 days prior to release as appropriate, subject to securing funding. The legislation also required city and county jails to make reasonable efforts to connect individuals with community-based treatment upon release. As of October 2020, at least five other county jails were providing MOUD to eligible individuals who are incarcerated.
As NASHP’s State Map of MOUD Provided in State Prisons shows, many states are providing MOUD to individuals who are incarcerated through state departments of corrections, and many local jails are doing the same across states. Lawsuits, often brought against local jails, are spurring states to develop policies that provide standards for OUD treatment at the state and local levels. These programs are associated with saving taxpayer dollars, decreasing crime-related and drug-related incarceration costs, and curbing costs associated with lost productivity. For more information about innovative actions states are taking to increase access to treatment across the criminal legal system, see NASHP’s Toolkit – State Approaches to OUD Treatment Across the Correctional Continuum.