By Alison Knopf
The American Association for the Treatment of Opioid Dependence (AATOD) issued three white papers this year that focus on methadone and buprenorphine treatment for opioid use disorders (OUDs). The papers were funded by the Substance Abuse and Mental Health Services Administration (SAMHSA).
This white paper, the third in the series, shows how opioid treatment programs (OTPs) and DATA (Drug Addiction Treatment Act) 2000 prescribers can work with drug courts, correctional facilities, probation and parole systems, family courts, and Child Protective Services (CPS). Because obtaining treatment for patients going through the criminal justice system is beset by myths and ignorance on the part of the many nonmedical authorities involved, perhaps one of the most important roles OTPs and buprenorphine prescribers can play is to educate.
The education won’t be easy, because widespread prejudices against agonist medications are common in the criminal justice field. Many people are in prison or jail, on probation or parole, or have lost custody of their children—all because they were unable to access medication-assisted treatment (MAT). (Sometimes, especially in the case of CPS, it is because they are in MAT that they lose parental rights.)
This third white paper has three sections. The first section is about drug courts, written by Douglas B. Marlowe, JD, PhD, Chief of Science, Policy & Law with the National Association of Drug Court Professionals (NADCP).
The second section, by Sarah Wakeman, MD, medical director of the Substance Use Disorder Initiative at Massachusetts General Hospital; and Josiah D. Rich, MD, MPH, professor of medicine and epidemiology at Brown University, and Director of the Center for Prisoner Health and Human Rights, focuses on how to improve access to pharmacotherapy within the criminal justice system. It zeroes in on several models.
The third section, by Pamela Peterson Baston of Solutions of Substance, Inc., discusses how OTPs and DATA 2000 practices can work with CPS and family courts. Termination of parental rights has been an unnecessary tragedy for many families, and it could be ameliorated by better training of CPS and courts, so that they understand how treatment works.
Part 1: Drug Courts
In 2010, the board of directors of NADCP issued a unanimous resolution directing drug courts to keep an open mind about MAT. It stated explicitly that drug courts should not have blanket prohibitions against MAT. (Some drug courts still do have a blanket prohibition.)
In 2013, NADCP said that drug courts should not prohibit offenders who are in MAT with methadone from participating in the court. Drug courts that do not follow this are operating below the recognized standard, said Dr. Marlowe. They may not be able to get certain drug court funds.
Beginning in 2015, the Bureau of Justice Assistance (BJA) required drug courts receiving federal funding to attest in writing that they would not deny eligible candidates access to the program because of an individual’s use of an FDA-approved medication for the treatment of an SUD. Nor would participants be required to taper off such medications as a condition of graduating from the program. (This mandate applies only to drug courts receiving BJA or SAMHSA funding.)
If a drug court is not receiving federal funding, and the prosecution offers its own medical evidence suggesting a medication isn’t necessary, the judge will need to make a ruling on the matter after listening to medical evidence from both sides. In this relatively circumscribed set of cases, medical experts will be required to provide the drug court with a convincing rationale for using or not using MAT, based on the facts of the case.
“Unfortunately, many physicians are unaccustomed to having their medical decisions questioned by laypersons, and even competent physicians can have a difficult time explaining their decision-making process to nonmedical professionals,” said Dr. Marlowe. Still, physicians need to be prepared to make this explanation to the judge, he said.
The best way to get drug courts to support MAT is to educate the drug court when there isn’t a specific case in question, he said. “Staff will need time to reflect on the issues, deliberate with fellow drug court team members, and convince colleagues from their respective agencies to reconsider entrenched practices.”
But, despite best efforts at education and outreach, some drug courts may continue with blanket prohibitions against methadone or buprenorphine. Drug courts are courts, and are required to receive evidence from scientific experts if the subject matter of the controversy is beyond the common knowledge of laypersons.
In a contested case, a medical expert should be prepared to explain why the circumstances justify using a relatively riskier or more complicated medication regimen. “Judges simply need a rational basis for following an expert’s recommendation,” he said. “Refusing to answer such questions or giving vague or patronizing responses interferes with the judge’s decision-making function and may cause the physician’s recommendation to be discounted and the prescription denied.”
Most drug court programs last between 18 and 24 months. Yet some drug courts require that participants be tapered from medication as a condition of graduation; this should not be the case. Still, the courts do want to know that the physician has considered tapering, and has developed either a tapering plan or a continuing-care plan.
“Physicians should give careful thought to this matter and be prepared to explain how they will decide whether and when to taper a medication regimen,” Dr. Marlowe wrote. “Specifically, what clinical signs and symptoms will the physician look for in deciding whether a taper is advisable? Are there clinical features in the case that might lead the physician to extend a maintenance regimen for a lengthier period of time, conduct a taper in a slow and stepwise manner, or maintain the patient on the medication indefinitely?”
These questions will, of course, seem odd to OTPs. After all, if a patient is doing well in treatment, why would you consider a taper? But the intent, said Dr. Marlowe, “is to help judges understand how and why competent physicians make such decisions.” By this education, a drug court judge can “assess the basis for a medical recommendation in a contested case and articulate a rational reason for accepting or rejecting the recommendation.”
In 2011, The Legal Action Center noted that about 65% of people in prisons or jails have a substance use disorder (SUD). Many are addicted to opioids. Denying them access to MAT violates the Americans with Disabilities Act, if denial is based on a blanket policy or made without individual evaluation. But this argument has rarely been invoked, as inmates continuously face a lack of treatment.
The bottom line—if OTPs and other MAT providers can’t establish a foothold in drug courts, they won’t be able to do so elsewhere in the criminal justice system, said Dr. Marlowe.
Part 2: Methadone, Buprenorphine, and the Criminal Justice System
Anyone who is detained or incarcerated should be screened for OUDs during initial intake. Those already taking buprenorphine or methadone should continue with their medication. Those who test positive for an opioid during screening but are not currently receiving a medication should be offered medical treatment for withdrawal symptoms, and assessed for further treatment.
Most barriers to MAT in prisons and jails are philosophical, but logistical challenges exist as well.
One model successfully implemented at the Rhode Island Department of Corrections was to partner with an OTP. In this model, doses of methadone that are individualized, measured, and labeled for each patient are delivered daily to the correctional facility. The methadone is picked up at the control desk and passed through multiple security checkpoints, counted, recorded, and ultimately placed in locked storage.
Inmates are administered methadone by the correctional nursing staff and observed during and after dosing. Nurses communicate each patient’s response and any side effects to a physician, who may adjust the dose as needed. The benefit of this model is that the Department of Corrections doesn’t need to become an OTP.
Another model, adopted by a handful of jails, is being directly licensed as an OTP. New York’s Riker’s Island program, called the Key Extended Entry Program (KEEP), is a jail-based methadone maintenance program that has been treating detainees since 1987.
Still another model is a buprenorphine treatment program. The medication is not a liquid, but it is taken sublingually, so the nursing staff needs to watch while the medication dissolves under the tongue. This can take up to 10 minutes for each patient, potentially causing staffing pressure.
The post-release period is particularly high risk, due to possible overdose. Recovery coaches could help connect patients to treatment. And all prisoners with a history of an OUD should receive overdose education and a naloxone rescue kit when leaving a correctional facility.
Part 3: Family Courts and Child Protective Services
Most substantiated child abuse and neglect cases involve substance abuse by a parent or guardian. And although most CPS resources are consumed by these cases, few child welfare systems in the country give priority to identifying parental SUDs early on.
Many missed opportunities for early identification and intervention exist in the CPS system. But Ms. Baston argues that there are even more in the SUD treatment system. People in treatment can lose their children to CPS. One study found that among parents who had a child that was removed by CPS, 29% of those in outpatient programs, 53% of those in residential programs, and 80% of those in OTPs had their parental rights terminated.
It is recommended that SUD treatment programs pay more attention to the children of their patients, and to parenting skills. “While not all parents who use opioids, alcohol, or other drugs mistreat their children, such use can adversely impact attachment, relationships, and family dynamics and significantly affect the likelihood the children will have traumatic experiences in childhood,” writes Ms. Baston.
Ms. Baston also notes that myths and prejudice about methadone during pregnancy, and actions by courts and CPS that counter evidence-based strategies, have created a “toxic and potentially deadly treatment and recovery environment.“ Parents involved with CPS are rarely offered MAT. One study found that only 24% of heroin users in a child welfare sample had been referred for methadone treatment, despite evidence of methadone’s effectiveness in treating heroin addiction.
In many parts of the country, women are forced to choose between going into or staying in treatment with methadone, and being reunified with their children. “We can and must do better,” said Ms. Baston. “But even the best evidence-based approaches cannot work in a vacuum. As long as MAT and other SUD treatment systems and child welfare systems avoid formal collaboration, parents dually affected by opioid and other SUDs and child maltreatment will continue to suffer the consequences, as will their children.”
So, just as with drug courts, it is incumbent upon OTPs to educate CPS. Because of the opioid epidemic, “community stakeholders that have previously not worked together are now feeling collaboration as a mandate, rather than an option,” said Ms. Baston. Cross-system collaboration among CPS, OTPs, and DATA 2000 providers is vital for the health of families.