New York Sheriffs Tried to Kill Jail Opioid Treatment Law

The Sheriffs’ Association lobbied against a bill to provide medication for opioid addiction in jails. Since it passed, they’ve failed to evaluate thousands of people for treatment.

Spencer Norris   ·   October 12, 2023
Orange County Sheriff's Department vehicles | Miles Dawydko

As overdoses reached record highs in New York, the state’s sheriffs tried to kill a key statewide measure to keep jailed opioid users alive.

In memos obtained by New York Focus, the New York Sheriffs’ Association opposed the law that requires all jails to provide medication for opioid use disorder, or MOUD. The two nearly identical memos, circulated among lawmakers between 2019 and 2021, argued that the decision to offer the medication should be up to law enforcement.

“The New York State Sheriffs’ Association OPPOSES this legislation, which would require that local correctional facilities provide medication-assisted-treatment (MAT) services,” the memos read. “The decision whether to offer MAT is one that resides, and should remain with, the Sheriff.”

Opioid use disorder is generally considered a protected condition under the Americans with Disabilities Act. The medications, which cut opioid cravings and manage withdrawal symptoms, have been shown to prevent people with opioid addictions from relapsing and overdosing. Many civil suits have argued that failure to treat the disorder constitutes a violation of federal law. In 2018, a wide-reaching federal case resulted in an injunction ordering a Massachusetts jail to offer methadone to an incarcerated man.

Despite the sheriffs’ efforts, the law passed in 2021 and went into effect last year. All New York jails are now required to provide MOUD. But implementation is often left in the hands of sheriffs who didn’t want the regulations in the first place — leaving it up to them to decide what kind of care incarcerated people receive.

Sebastian Solomon, who helped draft the law while with advocacy non-profit Legal Action Center, said that the sheriffs’ resistance to the programs should have disqualified them from being the sole stewards after the law went into effect.

“Substance use disorder is an illness, and we should be treating all illnesses with what is considered the gold standard of care,” said Solomon, now an associate director of policy with the Vera Institute. “The fact that they weren’t doing it on their own tells you there’s no reason it should be in their hands. They were refusing to do it.”

Even with the law in place, early data suggests that the jails aren’t doing everything they can to connect people with MOUD.

Reports obtained from the State Commission of Correction show that the jails failed to evaluate many thousands of incarcerated people for MOUD: 9,525 people in the state’s jails received evaluations between October and December 2022, while the average jail population on any given day was over 15,000. Of those who were evaluated, fewer than one in three were enrolled in a medication program.

The state’s incarcerated population needs access to opioid treatment more than nearly anybody else. The overwhelming majority of people in jail nationally have a substance use disorder, and nearly half of everyone admitted to New York’s alcohol and drug recovery programs have been involved with the criminal justice system. When they’re released, formerly-incarcerated people are between 10 and 40 times more likely to die from an overdose than the general population.

Some jails also seemingly refused to prescribe MOUD despite an exploding opioid problem in the community. Nassau has the highest rate of drug-related arrests of any county outside New York City. The county jail also had the lowest rate of enrollment of any MOUD program, with just seven percent of those evaluated being admitted, despite overdose deaths steadily creeping up.

“The decision whether to offer MAT is one that resides, and should remain with, the Sheriff.”

—New York Sheriffs' Association

In an interview, the Sheriffs’ Association’s associate counsel Alex Wilson insisted that sheriffs broadly support medication programs, but wanted them rolled out in a timeframe that would be easier to accommodate. Eleven of New York’s 62 counties — one out of six — received waivers from the MOUD requirements because there wasn’t a methadone program close enough to provide any, according to the Office of Addiction Services and Supports. Five of the counties still had waivers as of October 4.

“We’re always looking out for the best interests of our members, and we didn’t want to see them be put in a position where they had a legal obligation to provide a service that they just logistically couldn’t provide,” Wilson said.

While the Sheriffs’ Association recognized the benefits of providing medication, the group worried that the medications would impact its members’ abilities to maintain order. Suboxone, a common form of opioid treatment medication, was one of the most common types of contraband in the state’s jails, the memos said. The sheriffs feared that treatment programs would fuel internal black markets for the medication.

“Sheriffs are necessarily concerned about the potential diversion of opioid-based medication in their facilities. It is common for inmates to attempt to smuggle opioids into the jail, and Sheriffs are wary of introducing a controlled substance into a correctional setting as a result,” the memo said. “A Sheriff’s decision to implement MAT, or any type of inmate program, is always influenced by, and generally subordinate to, the practical safety and security concerns that are innate to running a correctional facility.”

Diversion is unlikely to harm opioid users. A year after Rhode Island established the nation’s first statewide MOUD program in 2016, a study found that no one had been hurt by diverted medications. At best, diversion actually reduces the risk of overdose. The overwhelming majority of people who purchase diverted buprenorphine (the ingredient in Suboxone that cuts cravings) use it to prevent withdrawal.

Even the jails that do want the programs to succeed are facing a major shortfall in funding. The 2023 state budget set aside about $8.9 million to cover the programs, in addition to group and individual counseling, withdrawal management services, peer support services, discharge planning, and re-entry support.

“I understand the monetary concerns, but this is about saving people’s lives.”

—Assemblymember Linda Rosenthal

While estimates have varied, most sources agree that the state has set aside too little to finance the programs. The Conference of Local Mental Hygiene Directors suggested nearly $24 million to cover the cost of programming. The Sheriffs’ Association estimated they needed at least three times the budgeted amount to cover the medications alone.

“I understand the monetary concerns, but this is about saving people’s lives,” said Assemblymember Linda Rosenthal, who sponsored the MOUD bill. Rosenthal added that she would push for more funding in future legislative sessions.

The problems are trickling down. New York Focus found that people incarcerated at the Broome County jail regularly go through withdrawals and can wait months to get into the treatment program. The New York Civil Liberties Union has gotten involved in at least one case and sent letters to the jail demanding access for others. In response to New York Focus’s reporting, Rosenthal said that she would seek an investigation into how the law has been implemented.

Antony Gemmell, the NYCLU’s Director of Detention Litigation and a senior staff attorney, said it’s time for the state to step in and make good on that promise.

“There are different jails around the state, like Broome, that are in various ways flouting or skirting the law,” Gemmell said. “We can continue to sort of play whack-a-mole and do that if that’s necessary, and go after or pursue legal action against counties that violate the law. But I think this calls out for the legislature to take a look at the law and how it’s working, and perhaps to ensure greater enforcement of it.”

Spencer Norris is an investigative reporter covering homelessness for New York Focus and ProPublica’s Local Reporting Network. He has exposed deficiencies in opioid treatment in New York’s jails and prisons, as well as a treatment desert spanning most of upstate. Spencer previously worked… more
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