Opioid Settlement Money: Who Gets It?

By the term “opioid settlement money,” I’m talking about the $26 billion agreement reached in mid-2021 with the opioid manufacturer Johnson & Johnson and the big three opioid distributors: McKesson, Cardinal Health, and Amerisource Bergen. The settlement was reached between these parties and the organizations and agencies that sued them, which were over three thousand opioid-related suits nationwide.

Some states opted out of this settlement, preferring to continue to pursue lawsuits.

The settlement does not include other opioid manufacturers such as Purdue Pharma, Indivior/Reckitt-Benckiser, Teva, Mallinckrodt, or any of the pharmacy chains such as Walgreen’s, CVS, Walmart and others.

The agreement is more complicated than I’m able to explain in a brief blog, so if you have specific questions, I’ve found this is a great website: https://www.opioidsettlementtracker.com/globalsettlementtracker

States participating in the settlement now must decide how best to spend their money. Will it be a free-for-all like the tobacco settlement of previous years, or will the money go towards helping people who were harmed by the opioid epidemic?

I was pleased to learn that my state of North Carolina has a plan in place to distribute the money. According to an overview document, [1] North Carolina plans for 15% of the money to go to the General Assembly, to be spent on “…a wide range of strategies to address the epidemic.” The largest chunk, 80%, will go to local governments to spend. The last 5% will be used as incentive money to urge counties and municipalities to sign on to the agreement.

The state has set up oversight to make sure the money gets spent on these things: evidence-based addiction treatment, recovery support services, recovery housing, employment-related services, early intervention programs, naloxone distribution, post-overdose response teams, syringe exchange programs, criminal justice diversion programs, addiction treatment for incarcerated persons, and re-entry programs.

It’s a little more complicated than this, since counties have other options too, but all the options look like legitimate uses of this money, with potential to help the people who have suffered the most: people with opioid use disorder.

North Carolina’s plan is to allow county commissioners of each county decide how to spend their money, which could lead to some difficulties.

For example, what if one county’s commissioners want to spend it all on detoxification? They might not know that detoxification alone, when not paired with FDA-approved medications to treat opioid use disorder, has dismal fail rates. Detoxification provided to patients with opioid use disorder show relapse rates of more than 90%, with an increased risk for overdose death shortly after leaving detox.

I’ve said on other blogs that if treatment with this fail rate and increased risk of death were provided to people with any other chronic illness, malpractice lawyers would leap into action to sue the providers. They might even drop from helicopters like malignant spiders. But when detox treatment fails – as one would predict from fifty years of data – to benefit people with opioid use disorder, the patients are blamed for not wanting recovery badly enough.

However, detoxification results may improve if patients are started on long-acting naltrexone before they leave the detox facility. Its brand name is Vivitrol, and it is given as a monthly injection.

Of course, relapse rates would drop if detox facilities used methadone or buprenorphine, but we don’t often need inpatient facilities to accomplish this. It can be done safely as outpatient treatment, and more cheaply too.

What about the traditional abstinence-only based facilities who provide detox, then 28 to 42 days of inpatient rehabilitation? Should they get any share of the opioid settlement?

One of my colleagues got into some hot water lately when he voiced his opinion at his county’s Drug Overdose Prevention Coalition. He told the audience that in his opinion, several local abstinence-based residential programs, both of which bar patients on methadone or buprenorphine, shouldn’t be allocated any of the opioid settlement money. They both discriminate against patients on medications (buprenorphine and methadone) which are heavily evidence-based for the treatment of opioid use disorder.

 I admire his bravery, and everything he said was science-based…but not well-received.

He got angry letters from these two facilities, who wrote long letters about the benefits of their programs. Interestingly, the letters did not directly address the most pressing issue: is it fair or even legal to deny treatment services to people who are prescribed methadone or buprenorphine?

In fact, at one point in their letter, one facility says, “…at multiple points prior to admission, we are clear that we do not utilize addictive substances as part of our treatment milieu.”

They doubled down on their position that they not only can deny treatment to patients on buprenorphine or methadone, but that they consider them addictive substances. This may be why only 18% of their patients have a diagnosis of opioid use disorder (their data). I suspect most patients were discouraged during the admission process and abandoned their efforts to get help.

Courts across the country are deciding that patients denied medical services because they are prescribed either methadone or buprenorphine are being denied their rights under the Americans with Disabilities Act (ADA).

For example, in 2018, the Department of Justice found a medical practice violated the ADA when they refused to provide primary care and specialty services to patients who were legitimately prescribed MOUD (this abbreviation stands for medications for opioid use disorder, meaning methadone or buprenorphine). The medical practice agreed to a settlement where they paid a hefty fine and agreed to educate their staff and change their policy of discrimination against these patients. [2]

At least five nursing homes have been cited by the Department of Justice for violating the ADA when they refused to accept patients on MOUD. All the facilities agreed to change their policies, train their personnel, and some paid substantial fines as penalties for their behavior.[2]

The DOJ also investigated an orthopedic surgery practice in New England because they were turning away patients for orthopedic care who were prescribed buprenorphine. The practice made a settlement agreement with the DOJ to pay $15,000 to each person reporting discrimination, and the practice agreed to implement a non-discriminatory practice. [2]

Even Massachusetts General Hospital was found to have violated the ADA after investigation by the DOJ. They denied a patient a lung transplant because he had opioid use disorder treatment with MOUD, a decision which ended in an agreement for MGM to pay the patient and his family $250,000 for emotional distress and out of pocket expenses. [2]

With these legal precedents, is it legal to bar admission of patients on buprenorphine or methadone to residential treatment facilities, if these patients wish to remain on their MOUD? Is refusal to admit these patients a violation of the ADA?

Let’s assume for the sake of our discussion that these facilities don’t violate the ADA or any other law when they deny admission of patients with opioid use disorder who are on MOUD. Let’s say these facilities have the right to provide only the treatments they think are effective. Does that mean they should get money from the opioid settlement? What if the treatment they provide has poor rates of success, just like the detox-only providers? Is that the way we want to spend money meant to benefit people damaged by the opioid epidemic?

In other words, should there be a measure of effectiveness of treatment before money is granted by each county? Should treatment providers need to show how their program benefits people with opioid use disorder before the county grants money to them? Or can any charlatan with a good patter get dollars from the opioid settlement, if they talk a good game to county commissioners?

MOUD has the most evidence to show it reduces the risk of dying, improves physical and mental health, and other positive measures for patients. Yet I fear agencies and facilities that do not use MOUD will try to claim the opioid settlement money. How do we negotiate this?

I was forwarded a great commentary published in the Raleigh News and Observer recently, and here’s a link: https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?artguid=f0ca7281-4cf1-4369-b352-fc781dc82465

The authors raise good points. As a society, we need to decide how to move forward to spend this settlement money wisely, and the commentary provides food for thought.

I plan another blog post looking at other aspects of this issue, soon.

1. https://www.ncacc.org/wp-content/uploads/2021/04/Opioid-Litigation-Settlement-Overview-202109.pdf
2. https://www.lac.org/assets/files/Cases-involving-denial-of-access-to-MOUD.pdf

Advertisement