The Oregon State Senate voted in April to decrease barriers to lifesaving medical treatment for opioid use disorder (OUD). Senate Bill 910 passed unanimously. As a public defender, an OUD treatment service delivery researcher and an addiction medicine physician, we believe that this billwhich now goes to the House for approvalis a vital step forward.

    Importantly, it also removes the requirement that a person on court-ordered community supervision must receive written approval from their parole or probation officer (PO) in order to receive buprenorphine or methadone to treat their OUD. Designated essential medications by the World Health Organization, these treatments are unequivocally lifesaving.

    To our knowledge, there are no Oregon laws, rules or regulations requiring PO permission for treatment initiation for any other health condition. It would be absurd for a person on probation to have to request permission from their PO to take insulin for diabetes or Lisinopril for high blood pressure. Initiating medication-assisted treatment (MAT) should be no different.

    Current law in Oregon essentially gives POs the discretion and power to approve or deny someone’s medical care.

    Allowing POs to make this decision is not only unethical, but legally questionable under: 1) Oregon medical practice rules; 2) Federal anti-discrimination laws; and 3) Constitutional rights.

    Probation is a criminal sentence imposed as an alternative to incarceration. People who are convicted and placed on probation are supervised in the community by a PO, instead of in a jail or prison by deputies or guards. Typical conditions include performing community service, paying off restitution, maintaining regular contact with the PO, having any living situation pre-approved and receiving permission before moving, and engaging in treatment courts. Parole is a type of supervision that is like probation, but occurs after someone serves a jail or prison sentence. POs are typically county or state employees.

    In Oregon, POs are not required to be medically trained and licensed. Despite this, the current law in Oregon essentially gives POs the discretion and power to approve or deny someone’s access to medical care.

    As such, it is likely in violation of Oregon rules governing the practice of medicine. Under Oregon Revised Statute (ORS) 677.085(4), a person practices medicine if they “offer or undertake to diagnose, cure or treat in any manner, or by any means … any disease, illness, pain, wound, fracture, infirmity, deformity, defect or abnormal physical or mental condition of any person.” The statuteORS 677.080(4)further states that no person in Oregon shall “practice medicine in this state without a license.” Only a trained and licensed health professional should make the determination of whether or not MAT is appropriate for a patient.

    PO discretion on MAT access additionally has liability potential under federal anti-discrimination laws. People who request and are denied MAT by their PO could have a cause of action under the Americans with Disabilities Act (ADA). Courts have found that opioid-dependent individuals are “individuals with a disability” and would qualify for ADA protections. For example, in a 2011 case from Kentucky, the Sixth Circuit Court of Federal Appeals noted that it was well established that drug addiction constitutes an “impairment” under the ADA, and that drug addiction substantially limited individuals’ “employability, parenting, and functioning in everyday life.”

    Current Oregon law may also violate individuals’ constitutional rights. Failure to provide incarcerated people with appropriate medical treatment violates their rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution. To be sure, a person’s’ status on community supervision is not the same as a person who is incarcerated in a jail or prison, as documented in a recent Massachusetts case. Nevertheless, both incarcerated and supervised people have their liberties restrained as part of a criminal sentence, and people on community supervision have due process rights regarding unconstitutional probation or parole conditions.

    The law is rapidly developing in this area towards recognizing more rights for individuals on probation. For example, in 2018 the Oregon Court of Appeals ruled that probation conditions such as prohibiting a medical marijuana card or association with people “known to sell narcotics” are invalid.

    Structural barriers to supporting rehabilitation and recovery amongst incarcerated individuals and those under correctional supervision are perverse and entirely avoidable.

    Whether a PO approves or denies a person’s request to engage in MAT is likely dependent on numerous factors. These could include court orders or organizational policies and procedures, but may also be informed by arbitrary considerations like the PO’s understanding of addiction and their experiences with other clients. Broadly, little is known about the existence of PO MAT decision-making policies, rules and regulations nationwide; however, it is likely this type of local rule is not unique to Oregon.

    More is known about the correctional system denying MAT to people who are incarcerated. A 2018 lawsuit and declaration by the Federal Department of Corrections have directed political, legal and medical attention on increasing access to lifesaving OUD medications for persons who are incarcerated. Rhode Island Department of Corrections and Rikers Island in New York have had success in delivering MAT.

    Beyond the need to remove a PO’s authority to approve or deny MAT, jails and prisons have important work to ensure access, as Filter recently reported. Their failure to do so results in countless individuals who experience unnecessary withdrawal (including severe vomiting, diarrhea, sweating, generalized pain, restlessness and anxiety) and in the extreme, death. Withdrawalor the fear of itcan be so intense that patients with active warrants may decline lifesaving treatment for fear of experiencing forced withdrawal in correctional settings. The implications of stopping lifesaving medication also include increasing an individual’s risk for return to use, repeat criminal activity, infection with HIV and hepatitis C, overdose and death.

    The structural barriers to supporting rehabilitation and recovery amongst incarcerated individuals and those under correctional supervision are perverse and entirely avoidable.

    Despite celebrating the progress of Oregon’s SB910, we are concerned about the existence of policies in other jurisdictions that give inappropriate and damaging medical powers to POs. We believe that this legal issue needs to be explored further.

    There is still much to be done, in our state and nationally, to remove barriers to MAT and ensure that people with OUD with correction involvement receive access to ethical, evidence-based and compassionate services. It is, after all, the 21st century; it is time for our systems and rules to reflect that.

    This article was co-authored with Kelsey Priest and Honora Englander.

    Kelsey Priest, PhD, MPH, is a fifth-year MD/PhD Student at Oregon Health & Science University (OHSU) School of Medicine. @kelseycpriest

    Honora Englander, MD, is an associate professor in the Division of Hospital Medicine and the section of Addiction Medicine at Oregon Health and Science University (OHSU) School of Medicine. @honoraenglander

    Top photo via Santa Barbara Probation Department

    • Christian Eickelberg, JD, is a former public defender and current civil rights and criminal defense attorney in Portland, Oregon.

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