In 2021 Legislative Session, a New Approach to Drug Policy

Fatal drug overdoses soared across New York state during the COVID-19 pandemic, as increased levels of fentanyl in the drug supply and decreased state funding for public health organizations made using drugs more dangerous than ever.

In Monroe County, home of Rochester, a new HIV cluster appeared last fall, possibly connected to unsafe needle sharing practices. In Erie County, home of Buffalo, fatal overdoses increased by 50%. Overdose deaths also rose significantly in New York City.

“We are in a moment of crisis,” said Jasmine Budnella, a drug policy expert at VOCAL-NY. “Every single district across the whole state of New York has seen that we are past the worst-case scenario on the overdose crisis.”

For much of 2020, the full scale of the problem was not even known, as both the state’s Department of Health and New York City’s Department of Health and Mental Hygiene were months late in releasing overdose data. After New York Focus reported on the scale of the overdose crisis and the shortage of data in February 2021, the state department of health released data on overdose deaths through June 2020. In April, the city released data on overdose deaths through September 2020.

In response to this crisis, New York’s legislature passed a host of bills, including several longtime priorities of public health advocates, to expand access to drug treatment and promote drug user health.

“It will help save a lot of lives,” Assemblymember Linda Rosenthal (D-Manhattan), a major advocate for drug policy reform, said of the legislative push. “It will spare people contracting illnesses like Hepatitis C and HIV. These are really big steps forward in the overdose crisis.”

Four major victories made the 2021 legislative session, which ended on June 10, a banner year for “harm reduction” advocates from VOCAL-NY and other groups, who view the best response to drug use as evidence-supported treatment rather than law enforcement.

The legislature passed three bills to directly increase access to healthcare for people who use drugs or are recovering from addiction. One mandates that incarcerated people have access to medications for opioid use disorder, a second decriminalizes the possession of syringes, and the third removes barriers to Medicaid recipients accessing opioid addiction treatment.

A fourth bill mandates that any funds received from settlements with opioid manufacturers or distributors go directly to public health initiatives related to drug use, rather than into the state’s general fund.

Asia Betancourt, a leader in VOCAL-NY’s User Union, said that the wins were a product of over a decade of protests, rallies, and meetings with legislators.

“In the very beginning, everyone looked at us like we were crazy,” she told New York Focus.

Expanding Access to Care

In January, New York Focus reported that thousands of New Yorkers had been arrested over the past decade for syringe possession, and that an exception in the law for enrollees of syringe exchange programs is frequently ignored by police officers. Roberto Gonzalez, director of a syringe exchange in Syracuse, told New York Focus that repealing the prohibition would lead to greater participation in syringe exchange programs, which reduce overdoses and raise the odds that users will access addiction treatment.

“More people would be up for…enrolling in the program, and getting the services that they need without fear, because they know that they won’t be charged for syringes. They know that they won’t be harassed,” he said.

And in March, New York Focus reported that incarcerated people in jails and prisons across the state regularly experience forced opioid withdrawal immediately upon being incarcerated, due to the absence of evidence-based addiction treatment programs in the large majority of jails and prisons. “The level of MAT in prisons and jails is paltry and pitiful,” Rosenthal told New York Focus at the time.

Not providing addiction treatment to incarcerated people also increases the risk of fatal overdose upon release, since tolerance for opioids decreases when an individual is forced to abstain while incarcerated. People recently released from incarceration have an overdose mortality rate at least 40 times higher than that of the general population.

The bill to provide addiction treatment to incarcerated New Yorkers, modeled on similar programs pioneered by Rhode Island, is in part funded by $11 million out of the $32 million that New York received from the $573 million settlement of a multi-state lawsuit against McKinsey & Company for its role in boosting opioid sales.

Rosenthal, who sponsored the bill, applauded the use of the McKinsey settlement money for this purpose, but cautioned that additional and more sustainable funding would be required for the program’s long-term success.

“The amount of money we have for medication assisted treatment in prisons and jails is good, but not sufficient. We need to establish a funding stream,” she told New York Focus.

But of the four bills, only the bill creating the opioid settlement fund has been signed by Governor Cuomo so far. He can delay the decision whether to sign or veto the other three until the end of the year, if he wishes.

When a similar bill to remove barriers to addiction treatment for Medicaid recipients passed in 2019, Cuomo vetoed it, citing concerns that it would saddle the state’s Medicaid program with additional costs.

But state Senator Pete Harckham (D-Putnam), chair of the Senate Committee on Alcoholism and Substance Abuse, said that the bill passed this year is different from the one passed in 2019, since it can be paid for with money from federal relief and opioid settlements. “The reason that he gave in past years was the cost. We now have significant new revenues that I think will more than cover those costs,” Harckham said.

Even so, advocates remain on guard. “We won [the bills] through the legislative session, and sadly, are going to have to run a campaign from now until the governor signs those bills,” Budnella said.

Governor Cuomo’s office did not respond to a request for comment on whether he plans to sign the bills.

One reason for this year’s success for harm reduction efforts in the legislature was the new Democratic supermajority in the state senate. Freshman Democratic senators Samra Brouk, Jeremy Cooney, and Michelle Hinchey all flipped districts formerly held by Republicans in the 2020 election, creating a greater caucus of legislators sympathetic to rolling back the drug war.

“New members from upstate New York were really important to this year’s session. Certain people who were holding those seats before were opposing [harm reduction] bills regardless of whether their districts were impacted,” Budnella said.

Senator Pete Harckham (D-Putnam) told New York Focus that support from across the state helped move the bills through the legislature. “We’ve really been able to build consensus in the conference that this is something we need to focus on, because it’s not an urban, rural, or suburban issue, it’s all of the above.”

An Opioid Settlement Fund

The legislature also worked to ensure that money obtained from settlements with opioid manufacturers and distributors would go directly to addressing the overdose crisis. On June 9, the legislature unanimously passed a bill mandating that all funds that the state obtained as a result of lawsuits against opioid manufacturers or distributors would go into a designated “opioid settlement fund” exclusively dedicated to drug use treatment and prevention.

While the McKinsey settlement was finalized several months before the bill was passed, it was also a preemptive step, with lawmakers especially eyeing a then-pending 2019 suit by the office of New York Attorney General Letitia James against major opioid manufacturers and distributors. Just a few weeks after the bill’s passage, on June 26, James delivered, announcing that her office had reached a $230 million settlementwith Johnson & Johnson, one of the defendants in the 2019 suit.

If the opioid settlement bill were enacted, the funds would be guaranteed to go directly to addressing the opioid crisis. But the bill still needed Governor Cuomo’s signature, and the bill’s advocates worried that Cuomo, known for keeping tight control over the state’s finances, might be resistant to relinquishing control over such significant funds.

“This governor often wants to be able to spend money the way he wants, and this legislation takes a little bit of that power away,” said Christine Khaikin, senior health policy attorney at the Legal Action Center, which advocated for the bill.

But James had a trick up her sleeve. Included in the settlement was a provision that conditioned $30 million of the settlement money on Governor Cuomo signing the opioid settlement fund bill; if he refused to sign it, the state would lose out on a significant amount of revenue. He signed it on June 29, three days after James announced the settlement.

“The attorney general’s office has been hugely supportive of the [opioid settlement fund] legislation,” Khaikin said. “They may have felt that they needed to give a little extra push to get the legislation signed by the governor.”

On July 8, James announced that New York was also expected to receive at least $200 million from the resolution of a lawsuit against opioid manufacturer Purdue Pharma and its owners, the Sackler family. The money will be added to the coffers of the opioid settlement fund.

In next year’s legislative session, advocates hope to build on their victories from this year. One initiative is likely to be a push to decriminalize buprenorphine, a medication used to treat opioid addiction that is currently illegal to possess without a prescription, Budnella said. Rosenthal and Senator Gustavo Rivera (D-Bronx) are the lead sponsors of a bill to decriminalize its possession.

“I know people who have gotten caught with buprenorphine and been arrested or had the cops throw it out,” Betancourt, the Users Union leader, said. “A person with diabetes has to have their medication. Why can’t we look at [buprenorphine] in the same aspect?”

Another campaign will be for the authorization of supervised injection sites, facilities found to reduce fatal overdose and disease transmission where drug users can inject IV drugs under medical supervision.

During the 2018 gubernatorial campaign, Governor Cuomo indicated his support for a pilot program of such sites—but then ceased communication with advocates shortly after winning reelection, New York Focus reported in March.