As drug overdose fatalities continue to rise and incarceration rates remain high nationwide despite recent declines, states are increasingly developing opportunities for incarcerated individuals to access evidence-based opioid use disorder (OUD) treatment in state prison facilities.
While the forced abstinence during incarceration can temporarily pause substance use itself, providing comprehensive treatment that includes medications for opioid use disorder (MOUD) during incarceration is shown to result in better treatment engagement as well as long-term recovery upon re-entry. Providing this kind of treatment during incarceration represents a shift in criminal justice approaches to substance use disorders (SUD), one that relies on partnerships between state agencies and providers, as well as the adoption of an understanding of OUD as a chronic-yet-treatable disorder with effective medical interventions.
Any discussion of this shift toward reframing people with OUD as individuals in need of Treatment – including those incarcerated as a result of their substance use – must also recognize that racial bias across systems affects sentencing policies. While Black people use illicit drugs at similar or lower rates than the rest of the population, they are incarcerated at over five times the rate of White people. Black Americans have also been disproportionately affected by recent increases in overdose fatality due to synthetic opioids, underscoring inequitable systemic responses to prevention, treatment, and recovery for Black individuals with OUD. The incarceration-based treatment approaches emerging today stand in stark contrast to the policy response to the crack-cocaine epidemic and subsequent sentencing guidelines of the previous generation that saw millions of Americans, approximately 80 percent of whom were Black men, incarcerated without a similar focus on treatment.
Policymakers are currently charting a different course by offering evidence-based treatment that is initiated alongside incarceration, recognizing that systems can work together to support people with SUD. These programs represent an opportunity to address both the SUD that may be at the root of criminalized behavior, and the racial disparities in sentencing that foster health disparities.
Developing programs that emphasize treatment instead of incarceration ultimately requires not just a shift in perspective about the nature of SUD, but also the will of leadership to implement new policies and clinical practices – and the funding to do so. The National Academy for State Health Policy (NASHP) talked to leaders from three states – Kentucky, Maine, and Pennsylvania – about their approaches to SUD treatment within their state prison populations and how these approaches are evolving.
In early 2019, the Maine Department of Corrections (ME DOC) developed a pilot program to begin providing MOUD, starting in one secure state facility and two pre-release state facilities. Part of the impetus for this program was a 2018 lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of an individual with OUD who was entering a Maine state prison and was going to be denied treatment, despite having been in recovery for five years with the assistance of prescribed medication.* ME DOC ultimately settled the case, agreeing to continue providing the individual with necessary medication. Prior to this, the state’s correctional facilities focused on providing residential and out-patient level of substance use treatment and continuity of care in the community upon release, but had no internal, evidence-based program that provided MOUD. In 2019, a new governor and administration initiated different priorities, including new approaches to address Maine’s opioid epidemic. Additionally, the state had just expanded Medicaid, which helped ME DOC to develop protocols that would ensure continuity of care upon release by enrolling participants in Medicaid coverage immediately upon re-entry.
To inform its planning process and learn about successful incarceration-based MOUD programming, Maine’s corrections leadership visited Rhode Island, a leading state in SUD treatment with incarcerated populations. ME DOC launched its buprenorphine pilot in July 2019 by engaging 50 individuals in the program, each of whom was three months from release. The size and scope of the initial pilot phase were intentional, as the state was limited to operating within its existing budget, staffing, and medical services contract. By November, with additional funding, a second facility was added, expanding the program to 75 to 90 participants, and by the end of that year, 115 individuals had successfully initiated treatment while incarcerated and transitioned back into the community.
In 2020, ME DOC expanded the program to all secure and pre-release state facilities and has nearly 200 participants enrolled in the program on average. ME DOC continued to expand eligibility policy over time. Currently, if a behavioral health or medical provider refers an individual for induction, regardless of entry or release date, ME DOC is able to provide MOUD. All program participants are released with a naloxone kit and a continuity of care plan in place, and internal data has shown that 84 percent of program participants attended their initial treatment appointment post-release.
Pennsylvania’s Department of Corrections (PA DOC) began offering injectable naltrexone in 2014 through a small pilot with women who were re-entering the community from one state correctional facility. Within two years, PA DOC had expanded this program to other facilities, identifying individuals at risk of overdose and providing injectable naltrexone prior to re-entry, as well as connections to Medicaid enrollment to support continued treatment in the community.
On June 1, 2019, PA DOC continued this development of treatment services through a formal policy change that supports provision of buprenorphine to anyone coming into state custody who was on a verified prescription upon entry, though not yet to other incarcerated individuals with OUD. While this did not replace the naltrexone program, it did introduce a second form of MOUD into the state corrections system, creating entirely new protocols and challenges and with them, opportunities. PA DOC also began inducting those individuals who entered prison due to technical parole violations on injectable buprenorphine before they returned to the community as an alternative to detoxing onsite. Buprenorphine provision, however, experienced serious disruption with the temporary loss of a provider to prescribe the drug, followed by the emergence of COVID-19, which has affected clinical and procedural protocols across the board for PA DOC.
Pennsylvania also brought on a full time medication-assisted treatment (MAT) coordinator for corrections in 2016, a move that led to planning and exploration of expanded treatment provision development, bringing significant growth to the program. In the first year, the state had fewer than 80 individuals receiving MOUD, but participation has grown annually and is on track to include over 1,000 people in all 24 state prisons in 2020.
Kentucky’s Department of Corrections (KY DOC) currently maintains about 6,000 SUD treatment beds within the state’s correctional facilities, though most of those do not include the provision of MOUD and instead promote an abstinence-only approach. In 2018, the state developed the Substance Abuse Medication Assisted Treatment (SAMAT) project in which at-risk individuals are identified pre-release and provided injectable naltrexone or buprenorphine. While still incarcerated, they are connected to Kentucky Medicaid and enrolled in a managed care plan, and prior authorization is completed for necessary continuity of medication upon re-entry.
In 2020, looking for ways to further support and sustain comprehensive treatment in state prisons, the Kentucky legislature passed a budget that included language directing the state Medicaid agency to develop and submit an 1115 demonstration waiver to the Centers for Medicare & Medicaid Services (CMS). This waiver is intended to create a mechanism for Medicaid coverage of SUD treatment while an individual is incarcerated, an approach that is currently prohibited by language known as the “inmate exclusion” in the Social Security Act.
This means that policymakers in Kentucky are simultaneously designing a DOC treatment program and the mechanism to administer and fund it. State leaders are currently exploring proposals to amend the current 1115 waiver to address anticipated clinical and policy challenges to providing MOUD, especially buprenorphine, to people who are incarcerated. All of this must be done while maintaining the budget neutrality required by 1115 waivers. This process also raises questions about when Medicaid coverage would begin, and what services would be absorbed by the DOC budget as opposed to those that would be reimbursable by Medicaid. A mechanism to provide Medicaid coverage to individuals within a 30- to 60-day window prior to release may mitigate some of these concerns. This approach would ultimately increase resources for KY DOC to improve its quality of services by moving toward a more evidence-based approach that includes MOUD.
Considerations for States
All three of the featured states started small, beginning their DOC-based MOUD provision in pilot programs, and with initial success and additional funding, scaled those programs up to meet demand. States had to account for multiple factors in deciding which forms of MOUD to use in their programs, including the expectations of DOC clinical providers, security within facilities, and community treatment supports upon re-entry.
Widespread concerns among corrections officials about potential diversion, as well as stigma about using agonists and partial agonists for treatment, has resulted in a slower adoption of their use in incarceration-based treatment. Though naltrexone has been more widely embraced by correctional facilities than agonists and partial agonists like buprenorphine and methadone, each state has included or is working to include at least two forms of MOUD. Beyond this, state officials also developed clinical protocols and program components based on state resources and needs, and certain experiences and design elements were common across the states.
- Decisions around specific forms of MOUD. Maine’s program currently primarily utilizes buprenorphine, recognizing that methadone provision would require significant administrative and clinical policy change. Federal methadone treatment regulations require accreditations and standards that are challenging to meet for an existing correctional facility. ME DOC is, however, exploring opportunities to expand the program to include methadone over time. Additionally, because naltrexone has limited availability in the community for individuals upon release, policymakers were concerned that a program utilizing naltrexone may make connections to ongoing treatment challenging.
While Maine has had success with buprenorphine, current PA DOC policy does not provide for induction on buprenorphine to most incarcerated individuals with OUD – a challenge that is both clinical and administratively-based. Like many states, Pennsylvania contracts for medical care in state prisons, and the current contract was not written to include the provision of MOUD, particularly buprenorphine, which can be clinically intensive and comes with provider waiver requirements.
Per the Request for Applications (RFA) issued by PA DOC, the next iteration of the contract will include a requirement that the state’s corrections medical provider provide MOUD. The RFA stipulates that:
- An Addiction Specialist, certified through the American Board of Preventative Medicine, be identified among the contractor’s leadership to support SUD treatment needs;
- All providers are educated in SUD treatment;
- The contractor must register each correctional institution in the Risk Evaluation and Mitigation Strategies (REMS) program in order to safely order, store, and administer buprenorphine.
- Subcontracts are developed with opioid treatment programs to provide methadone at certain facilities; and
- A sufficient number of provider staff hold a waiver to prescribe buprenorphine.
Regardless of current challenges, Pennsylvania is prioritizing buprenorphine induction for individuals with OUD who are re-entering communities, similar to the way in which they are currently providing naltrexone. Further, there is a push to be able to induct those who are using contraband opioids, often as a means of harm reduction, while incarcerated. While the state uses injectable buprenorphine for a small minority of program participants, state leaders are awaiting the late 2020 release of a shorter-acting, non-refrigerated formulation that may be less cumbersome to administer.
- Attention to correctional workforce needs. Recognizing that addressing staff concerns about the provision of MOUD, including issues of security and diversion, would be necessary for the program to succeed, ME DOC leadership arranged a second site visit specifically for security staff to meet with their counterparts in Rhode Island. To gauge staff culture, ME DOC leadership also conducted an internal survey among staff to assess the general understanding of MOUD, the results of which were used to tailor subsequent staff training and education prior to program implementation.
Kentucky is contemplating the development of new workforce protocols to provide these services as part of the state’s proposed Medicaid waiver. The current approach uses KY DOC counseling staff who are not licensed as behavioral health professionals. The state may consider developing a new provider type of DOC-based professionals, requiring new or amended professional licensing regulations, reimbursement policy changes, and facility licensure changes if needed. The state is also deliberating what utilization of peers may look like in such a program, as well as what supervision for unlicensed staff would include.
- Ensuring continuity of care upon re-entry. Individuals leaving incarceration face a host of risk factors for return to substance use and potential overdose, including lack of access to treatment and limited financial resources. In recognition of this, all three states ensure that program participants are enrolled in Medicaid coverage, safeguarding their access to continued treatment in the community. The ME DOC also contracts with Groups Recover Together, a community recovery organization that helps to ensure that individuals are connected to and engaged in recovery services upon re-entry.
Pennsylvania is also considering how individuals progress with treatment upon re-entry based on the treatment provided to them while still incarcerated. Currently, PA DOC is providing up to three naltrexone doses prior to release and is reviewing state Medicaid treatment data to understand the impact of multiple doses versus one dose on treatment outcomes in the community.
- Coordination between state leadership. Because these programs often emerge from previously existing social or abstinence-based approaches, the development of protocols and resources must be coordinated under the direction of high-level state leadership. Officials in all three states indicated they had leaders who not only authorized but championed treatment in incarceration settings. These leaders were critical to developing treatment policy, and their continued focus on OUD-related initiatives was a key component to maintaining services. In 2018, Pennsylvania’s governor declared the overdose epidemic a statewide disaster, and he continues to renew that declaration to ensure that initiatives it supports – including treatment within PA DOC – are maintained. The declaration established a cross-agency Opioid Unified Coordination Group composed of cabinet-level health and public safety officials that meets weekly.
Kentucky is one of few states to have a dedicated Office of Drug Control Policy, which led the charge for them to be among the first states to fund and implement an incarceration-based naltrexone program in corrections. The state legislature is unique in the nation in its decision to direct the state Medicaid agency to explore and submit a Medicaid waiver to provide SUD treatment to incarcerated individuals.
Maine’s current governor appointed a cabinet-level State Opioid Response Director, and she included incarceration-based treatment among her top priorities for the state upon assuming office. The governor’s second Executive Order, signed less than a month into her term, directed the development of OUD treatment in criminal justice settings, and the state’s DOC commissioner was working to implement this within the first few weeks of her administration.
Funding and Support for Incarceration-Based Treatment Sustainability
Because of the inmate exclusion that prevents correctional facilities from receiving Medicaid reimbursement for services in incarceration settings, states are relying primarily on federal grant funding to support these programs.
Maine launched its pilot program without using any additional funds beyond its internal budget, receiving an additional $1 million in funding from the Maine Office of Behavioral Health’s federal substance abuse block grant to support the program later in 2019. Concurrently, ME DOC realized savings in its health care budget as a result of the state’s recent Medicaid expansion. With these additional funding streams, Maine was able to make its final program expansion by adding its last remaining correctional facility to the program and expanding program eligibility to allow individuals who entered a facility from a local jail to continue on a course of MOUD that had been established previously. This also allowed Maine to expand treatment to individuals who are 180 days pre-release.
Kentucky’s initial provision of naltrexone was supported through state legislation that allocated $3 million to the program, and the current program is supplemented through federal State Opioid Response funds provided via the Kentucky Opioid Response Effort (KORE). Pennsylvania similarly uses their SOR funding to support current programming.
States are looking to the future as they plan what OUD treatment services for incarcerated populations will look like, as well as how to fund such services with increasingly limited resources and current reliance on federal grants. There may be an emerging appetite to address the inmate exclusion and develop new approaches through Medicaid, though as the COVID-19 pandemic increases Medicaid enrollment and drives state revenues down, any new Medicaid-funded services will be challenging to state budgets.
Even in successful corrections treatment programs, lack of insurance coverage upon re-entry is a barrier to long-term treatment and recovery outcomes. A House bill introduced in 2019, known as the Re-entry Act, was written to allow states to reinstate eligibility for Medicaid for incarcerated individuals in jails and state prisons up to 30 days prior to re-entry. Recognizing that the COVID-19 pandemic has disrupted, if not altogether halted, re-entry services across the country, the bill’s language was integrated into pandemic response legislation as a part of the Heroes Act, which has yet to be passed.
Treatment programs in incarceration settings are helpful tools that states are using in hopes of reducing opioid overdoses, but also in reducing the stigma around SUD and the racial disparities in health outcomes for people with OUD. As states continue to take steps to tackle the opioid epidemic, state corrections settings are proving to be an innovative access point for evidence-based treatment.
*See Smith V. Fitzpatrick, et al. The lawsuit argued that the DOC was violating the Constitution and the Americans with Disabilities Act by denying treatment to prisoners with OUD. At the time, the Maine DOC had a policy generally prohibiting medication-assisted treatment, under which Smith would have been prevented from taking his medication and forced into acute withdrawal.
Acknowledgements: The National Academy for State Health Policy is providing this case study with the ongoing support of the Foundation for Opioid Response Efforts (FORE) and wishes to thank Project Officer Ken Shatzkes and FORE President Karen Scott for their continued guidance and direction. Further, the authors would like to thank Allen Brenzel, medical director of the Kentucky Department for Behavioral Health, Developmental and Intellectual Disabilities; Steven Seitchik, Statewide Medication Assisted Treatment Coordinator for the Pennsylvania Department of Corrections, and Ryan Thornell, Deputy Commissioner of the Maine Department of Corrections for contributing their expertise and state experiences to this brief.