Opioid Policy and the Trump Administration

As President Trump’s nominee for Health Secretary, Alex Azar, testifies before the Senate today, the former pharma executive will need to defend the President’s failure to provide any additional funding to prevent or treat opioid addiction.

But President Trump hasn’t just refused to act—he’s quietly taken steps that put communities suffering from the opioid epidemic at greater risk:

—The Administration is attempting to illegally cut funding hospitals use to provide opioid addiction treatment. The Administration has launched an assault on the 340B Drug Discount Program, which helps rural clinics, hospitals, and other health care facilities provide treatment to communities particularly at risk of opioid abuse. For example, savings from the 340B discount program allows Boston Medical Center to distribute Naloxone rescue kits. The Administration’s actions — which include drastically cutting Medicare reimbursements for drugs such as Naloxone and rolling back penalties on pharma companies that price-gouge — put these programs at risk, undermining efforts to make addiction treatment affordable and accessible. Leading the White House effort: Joseph Grogan, the former chief lobbyist of Gilead Sciences, a pharma giant that stands to benefit from the opioid epidemic given it manufactures drugs to treat infections associated with opioid abuse.

SIDEBAR: HHS has been sued for cutting Medicare reimbursements for drugs such as Naloxone. But the Administration’s roll back of the 340B anti-price gouging rule is also illegal. The rule, which was set to take effect in March, was first delayed by HHS the very same week Grogan was appointed to run White House pharma policy. This was followed by three subsequent delays. Unlawfully delaying rules at the behest of large corporations is a common practice in the Trump Administration, even though federal courts have held the practice unlawful.

—Attorney General Sessions is threatening to withhold millions in substance abuse prevention funding from states and cities battling the opioid epidemic. DOJ has threatened to block Byrne Justice Assistance Grant funding from Illinois, Oregon, Vermont, and 25 localities across the country if they don’t comply with President Trump’s immigration policies by December 8, 2017. In part, Byrne grants help fund evidence-based “substance abuse prevention” and “drug treatment and enforcement” programs. For example, the city of Louisville, Kentucky has received $400,000 in federal money, which it has “used to help fight drug addiction,” and which Republican members of Louisville’s Metro Council now warn has been placed “in jeopardy.”

SIDEBAR: A federal district court in Pennsylvania recently held that the Administration’s tactics would cause irreparable harm to the city of Philadelphia. The court noted: “With the Byrne funds, the City aspired to expand its police officers’ capacity to deliver Naloxone to civilians who overdose as a result of opioid abuse which President Trump and many members of Congress, have described as a major public health crisis.”

—The Administration is making it easier for insurers to eliminate coverage for substance use treatment. Before the Affordable Care Act, one-third of plans sold on the individual market did not cover addiction or substance use treatment. The ACA changed this by requiring insurance plans offered through the marketplace to cover “essential health benefits,” including treatment for mental health and substance use disorders. The law specifically mandates that insurance plans cover drugs to treat opioid use disorder, alcoholism, and opioid harm reduction. But in October, HHS proposed a new rule that would allow states further leeway in designating what minimum essential health benefits insurers must cover, opening the door for insurers to offer plans that provide little to no coverage for Americans suffering from opioid addiction.

SIDEBAR:This proposed rule is yet another example of the Trump Administration deliberately attempting to undermine the ACA. It may also be unlawful. As University of Michigan law professor Nick Bagley notes, “it’s black-letter administrative law that an agency can’t subdelegate its powers to outside entities, states included.”

—The Administration is attempting to increase federal prison sentences for possession of the opioid pain medication fentanyl. In a July letter to the U.S. Sentencing Commission, DOJ urged the Commission to decrease the quantity thresholds, and thereby increase sentences, for criminal fentanyl offenses. In arguing for the change, DOJ gave a hypothetical example, claiming the current prison sentence associated with “four grams of fentanyl” is “wholly inadequate” because it “is sufficient to kill approximately 2,000 persons.” However, according to the Chair of the Federal Defender Sentencing Guidelines Committee, “the four grams the Department claims is enough to hypothetically ‘kill approximately 2,000 people’ more likely represents, in the real world of guideline calculations, about 8–16 non-lethal doses.”

SIDEBAR: Earlier this month, DOJ unilaterally announced that all ‘fentanyl analogues’ (i.e., chemically-related variants of fentanyl) will now be treated as fentanyl and considered schedule 1 drugs. This new classification means federal prosecutors won’t need to litigate the chemical similarity of a drug to fentanyl when arguing a case. Taken together with DOJ’s push for longer sentences, the move raises serious concerns, particularly given Attorney General Sessions has directed federal prosecutors to seek the maximum penalty possible in every drug case, including cases of non-violent, low-level possession.

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