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Federal Legislation Affecting Substance Abuse and Treatment in the US

Anyone in the United States who watched television in the 1980s may recall an adorable cartoon paper man bouncing up and down the stairs of the capitol building and explaining to children how a bill becomes a law.[1] The song, etched into the memory of many, is “I’m Just a Bill,” and it was a segment on the ABC children’s show Schoolhouse Rock (1973-2009).[2] As the cartoon bill described, a bill must pass the Senate and the House of Representatives, and get the current president’s signature in order to become a law.[3] (Note: There is a process that can dispense with the need for the president’s signature if it’s not forthcoming.)
A federal legislative law, also called a statute, is codified in law books, such as the official United States Code. Statutes don’t usually make for an exciting read but they are the supreme law of the land; the federal government as well as all the states must enforce or apply federal statutes. Typically, a statute has a discrete name followed by the word act, such as the Affordable Care Act. This overview on the making of federal laws provides greater context for the following discussion on the federal acts that affect drug treatment and the people who experience substance abuse.

State laws are the supreme law of the state in which they are passed; however, they cannot conflict with a federal law that controls the same issue. There are state laws that also apply to substance abuse, and one example is noted in this article as it illuminates the general discussion. In some instances, local (municipal/county) laws may also be involved in the field of substance abuse treatment. Typically, these rules relate to local funding of programs and access issues. Local recovery centers are a good source of information on relevant local laws.
federal law trumps state

The Constitution Doesn’t Guarantee a Right to Healthcare

At the outset of this discussion, it is important to note that there is no federally legislated right to healthcare in America. Unlike countries such as Uruguay and Latvia, the US Constitution does not expressly guarantee healthcare for citizens.[4] According to one study, including the US, there are 86 countries across the globe that do not give its populace an explicit right to healthcare.[5] Only countries that are members of the United Nations were studied. However, the federal government has taken steps, through different federal laws, to ensure that Americans receive healthcare coverage. For instance, in 2012, the US Supreme Court (the court of ultimate authority for the entire nation) ruled that the Affordable Care Act was constitutional. In this sort of backdoor way, the Supreme Court recognized the legality of the Affordable Care Act but did not go so far as to rule that American citizens are guaranteed healthcare.

More About the Affordable Care Act

SCOTUS Upholds ACA

Legal precedents set in the general area of healthcare rights have paved the way for certain guarantees to be made with respect to substance abuse treatment, such as those the Affordable Care Act includes. In the future, the US Constitution may be interpreted to provide healthcare as a basic right. Although there is a federal legal framework in place to provide healthcare to Americans, constitutional recognition would be a crowning human rights achievement. Although it may not be official, many Americans agree that healthcare is a basic human right.

 

A Shift in Federal Government Thinking

Federal acts are essentially a statement of the presidential and congressional position on certain public matters, with that position ultimately receiving full enforcement in the courts, police departments, and other governmental agencies. These federal acts comport with the assumptions, values, and politics of governmental agents that are elected to act in the best interest of the country. For instance, when former President Nixon announced his war on drugs in June 1971, he immediately asked Congress to pass laws that he and his administration believed would give teeth to the attack.[6]
war on drugs failed

Nixon’s speech emphasized the need for rehabilitation of individuals experiencing substance abuse (what he referred to as the “demand” side of the drug epidemic). To help achieve this end, one of Nixon’s strategies was to create the Comprehensive Drug Act (CDA). Providing treatment services was at the heart of this law. Nixon also asked Congress to fund the implementation of this act by adding an extra $105 million to his 1972 budget.[7]But today, we have the benefit of hindsight. Although Nixon advocated for rehabilitation, the laws he passed (the DCA and beyond) ended up increasing the criminalization of drug use. There is a near universal consensus that the War on Drugs strategy failed abysmally and mainly served to increase the prison population.

The War on Drugs was an outgrowth of the 1970s heroin epidemic (both in the US and among military workers in Vietnam). Today, the Obama administration faces a new version of the drug epidemic. At present, heroin abuse rates have nearly returned to the rates of the 1970s, and the country is steeped in a prescription opioid abuse epidemic.[8] When the US is entrenched in a drug epidemic, such as the prescription opioid epidemic, each resident faces a risk of substance abuse.

Compared to the heroin epidemic during the Nixon era, the current prescription opioid epidemic is unfolding in a new political climate. The present government has moved away from the criminalization of substance abuse toward a treatment-oriented focus. Implicit in this shift is the understanding that drug abuse is less a matter of personal choice (which make punishment defendable) than a symptom of a disease (which makes punishment indefensible).

The Comprehensive Addiction Recovery Act of 2015 (CARA) reflects contemporary federal government thinking on substance abuse.[9]CARA is heavily oriented toward providing recovery services to individuals experiencing substance abuse and would allow the attorney general to allocate grants to treatment programs and communities to help stem the opioid drug epidemic. CARA has not yet been passed into law. The bill was introduced in the US Congress on February 12, 2015 and passed the Senate on March 10, 2016. The bill is on track to be considered by the House. Although CARA is not the law of the land, it merits discussion because it is a statement of where the federal government is heading on the substance abuse issue and how it plans to treat individuals who are experiencing substance abuse.

The following are some of the key promises the proposed draft of CARA makes:

  • The dedication of $80 million toward the prevention, treatment, and recovery support across the US
  • An expansion of the treatment platform for heroin and opioid addiction, including more community-based recovery assistance services nationwide
  • In the prison system, providing more resources to treat inmates experiencing substance abuse
  • Greater recovery support in high school and colleges throughout the nation
  • Regarding opioid prescriptions, tighter controls on doctor prescriptions and help for states in creating a prescription drug monitoring system to keep these drugs from ending up on the street for sale
  • Increased availability of naloxone (an emergency treatment drug) to law enforcement to help reverse heroin and prescription opioid overdoses[10]

Comprehensive Addiction Recovery Act of 2015
According to GovTrack, CARA has a 40 percent chance of being enacted into law.[11] But again, even if CARA does not make it through the legislative process, it still demonstrates the government’s awareness that the criminalization of individuals who abuse drugs needs to be replaced with the more compassionate and humane rehabilitation approach. Of course, the former Nixon-era rehabilitation commitment was more rhetoric than practice, but the hope is that CARA, or similar treatment-oriented legislation, will actually bring about substantive changes in how the government treats individuals experiencing substance abuse.

 

Improving Access: The Affordable Care Act

Known in the mainstream as Obamacare, the Affordable Care Act (ACA) was passed in March 2010 and took effect in 2014. One of the greatest reported achievements of the ACA is that it has significantly upped the number of Americans with insurance coverage. Per the US Department of Health and Human Services, 16.4 million Americans who did not have coverage before the ACA had healthcare coverage after it was implemented.[12] This considerable uptick owes in part to the fact that the ACA created the Health Insurance Exchange or Marketplace, a forum in which different health insurance policies (at bronze, silver, gold, and platinum levels) are matched to applicants with the assistance of a trained navigator.
affordable care act covered stats
To ensure Americans would not be priced out of the marketplace plans, the federal government subsidizes plans for qualifying applicants.[13] To keep the government from over- or underspending, when those insured with a marketplace plan receive a federal subsidy, they will have to report it on their federal taxes; those insured individuals who received too high of a subsidy, based on their income, may owe the IRS while those who received too little of a subsidy will get a federal tax credit. These rules do not apply to those who have Medicaid as this program is fully subsidized. Under the ACA, qualifying individuals who have a low-income level may be eligible for Medicaid (a mixed federal and state program). A navigator can help people to find out if they are eligible for Medicaid.

As the ACA streamlined the process for applying for health insurance, including Medicaid, it made it easier for uncovered individuals who are experiencing substance abuse to get insurance. Even further, the ACA has provisions that are designed to improve access to substance abuse treatment. But how, one may ask, does the ACA do this?

In short, the ACA made substance abuse treatment a part of the listed 10 essential health care benefits.[14] Under the ACA, Medicaid and all marketplace health insurance plans must cover the 10 essential health care benefits. These are guaranteed benefits. But note, the extent of coverage varies. For information on the particulars of an insurance plan, covered individuals are best advised to consult the issuing insurance company’s summary plan description. However, the ACA does guarantee that certain substance abuse treatment services be made available to individuals who have Medicaid or ACA plans.

The following is an excerpt of the promises made in this area:

  • Greater equality with other types of covered services: ACA works in conjunction with the Mental Health Parity and Addiction Equity Act of 2008, which requires coverage for mental health disorders to be equal to the level of coverage for treatment for physical conditions, such as diabetes.
  • No more pre-existing condition exclusions: All ACA plans must provide coverage for insured individuals and not reject claims for a pre-existing condition, including prior or current substance abuse.
  • An increase in the number of community health centers: In 2015 alone, 700 community health centers were slated to open to serve the needs of local communities; services include substance abuse treatment services.
  • Funding for substance abuse treatment: In 2014, the federal budget included a $50 million dedication to treatment and support services for individuals experiencing substance abuse.[15]

Those with Medicare coverage also have access to substance abuse treatment.[16] Medicare assists covered individuals with the cost of services at an inpatient or outpatient drug treatment center (as long as the rehab center participates in the Medicare program). To receive a Medicare subsidy, a doctor must first determine that the recovery services are medically necessary and make a referral to that effect.

Medicare is a complex maze of benefits and limitations to navigate. Broadly speaking, Medicare Part A helps with the costs of hospitalization for substance abuse. Due to parity in the laws now, the copays during such a hospital stay must be on par with the copays for other medical procedures (i.e., substance abuse treatment cannot be treated differently from, for example, heart disease treatment). Medicare Part B assists with outpatient care at a clinic, hospital, or rehab center. Again, due to parity in the laws, Medicare will typically provide coverage for 80 percent of the approved services in a drug recovery program, just as it would in a treatment program for a medical condition, such as diabetes. The 20 percent gap in coverage is usually met out-of-pocket or by a supplemental insurance plan.

Medicare coverage

The Drug Addiction Treatment Act of 2000 and the New Hampshire Case Example

In order to understand the basic principles of the Drug Addiction Treatment Act of 2000 (DATA), it is necessary to take a look at the historical division between the treatment of physical conditions and the treatment of substance abuse. In the past, substance abuse treatment has been a specialized field within medicine. This has meant that patients under the care of a primary physician alone may not have received adequate treatment, or any treatment, for substance abuse because the doctor would not have been trained to diagnose and treat this disorder. But DATA is part of an effort to bring primary care doctors into the realm of treating substance use disorders. Under DATA, certain qualifying doctors are allowed to treat opioid addiction with FDA-approved targeted medications (such as Suboxone, an opioid replacement therapy that can be self-administered).[17] The act specifically plies opioid abuse treatment out of the hitherto required clinic or rehab setting. Under DATA, the treatment can be provided in the qualifying doctor’s office.[18] But is DATA working on the ground?

While federal acts are binding on the states, they do not necessarily have the same impact across the states. Some states may have more success with any given federal act than other states. Take, for example, New Hampshire. According to New Hampshire Public Radio (NHPR), many doctors in New Hampshire are simply not opting to exercise the treatment opportunities that DATA presents, even though there is an opioid abuse epidemic in New Hampshire.[19] In fact, per one report, an estimated 10,000 residents of the state would benefit from opioid replacement therapy in a doctor’s office (as DATA makes possible). NHPR points out that while the New Hampshire doctors hesitate to prescribe opioid replacement therapy, such as Suboxone, they seem to willingly write prescriptions for opioids, thus fueling the problem. It is not clear if there is overlap between these sets of doctors. In 2015, over the course of three months, New Hampshire patients filled almost 200,000 prescriptions for opioids, such as oxycodone.
New Hampshire Case DATA

The New Hampshire public recognizes that a portion of these opioid prescriptions will be abused and sold illegally on the street, but cannot accurately estimate how many. Still, the point remains that DATA does not appear to have the helpful impact that it could if it was embraced. According to one research study, there are barriers, despite DATA, that create disincentives for doctors to get involved with providing substance abuse treatment services.[20] DATA does not affirmatively require eligible doctors to provide opioid abuse treatment, but if they do, they must meet certain training requirements. Doctors may simply be unwilling to undergo the training. Further, some doctors surveyed in the study noted that opioid abuse treatment did not provide adequate financial remuneration. The sheer number of those in need of opioid recovery services in New Hampshire made providing treatment seem too daunting to some doctors. Still others, harkening back to an earlier point, said that they and their nursing staff did not feel they had skills, DATA-mandated training aside, to treat substance abuse.[21]

NHPR notes that although DATA sought to expand access to opioid therapy, by making it available in doctors’ offices, treatment may actually be more inviting in a rehab setting. It is well documented that many individuals in recovery derive a benefit from being around other individuals in the (proverbial) same boat (i.e., the mutual aid component of recovery). However, the one-on-one nature of DATA is likely to be appealing to many.

Opioid treatment therapy can occur in the long-term, after treatment at a rehab center ends. It’s not meant to replace rehab stays, but it can be an effective part of an aftercare program. DATA, even if doesn’t have the reach it could have in certain states, expands the treatment options for individuals who are seeking recovery. Having more options can give a person who is resistant to treatment fewer excuses to deny such treatment. Despite its drawbacks in practice, DATA appears to be an asset to the drug treatment landscape.

In terms of healthcare access and coverage, Americans benefit from all three branches of government: the legislative, executive, and judicial. The legislative branch, as noted, has made significant strides toward expanding healthcare coverage in general and access to substance abuse treatment in particular. Federal acts that have occurred during President Obama’s tenure demonstrate that the disease model of addiction is being embraced, which in turn tempers the historical trend to criminalize drug-involved behaviors. This is a particularly important shift as it can be challenging to accurately separate those who sell drugs from those who abuse them as there may be overlap (i.e., individuals engaging in the sale of drugs to fund their existing drug abuse). Whether the legislator can actually act as an agent of change in the area of substance treatment remains to be seen, though the shift towards greater compassion appears to be underway.

If CARA is not enacted into law, it will be helpful for policymakers to learn which of its provisions met the greatest opposition. Such an inquiry would further reveal how the US Congress is currently thinking about addiction (i.e., whether it is meaningfully embracing research that supports the disease model). If CARA does pass, and if its provisions are implemented in a way that brings about even greater access to recovery treatment services, it could help to lift any existing stigma around substance abuse.

As the branches of government increasingly treat substance abuse as a disease and provide treatment to those in need, rather than punishment, this updated thinking can trickle down to the public. It is possible that the future, with adequate public education, can make the populace as uniformly compassionate toward people who experience substance abuse as those who suffer common medical conditions.