Table of Contents

  1. Introduction
  2. Executive Summary
  3. Section 1: Opioids, Opioid Use Disorder and MOUD
  4. Section 2: MOUD Availability in Jails Nationwide and in NC
  5. Section 3: NC Jails Discussion: barriers to MOUD treatment and problems with existing programs
  6. Section 4: Recommendations and Resources

Section 2: MOUD Availability in Jails Nationwide and in NC

Availability of MOUD in Jails Nationwide

Each year over 9 million people pass through jails in the US.[i] An estimated 15% of those individuals have an OUD.[ii] Despite the scope of the OUD problem and the availability of proven medications, only approximately 1 in 5 adults in the community received any MOUD.[iii] There is even less access to this proven treatment for those who are incarcerated. The Bureau of Justice Statistics released a report in April 2023 reviewing opioid use disorder screening and treatment in local jails in the US for 2019. [iv] The report findings revealed that while approximately 63% of local jails conducted screening for OUD on intake, only 24% of these facilities continued people on MOUD after entering the facility.[v] Continuation was for any MOUD, including less effective antagonist medications.

Another study, using a cross-sectional survey, studied the availability of MOUD in US jails from September 2019 – March 2020.[vi] The researchers found MOUD, either continuation or initiation, is not widely available in US jails.[vii] Most jails did not adhere to the standard of care by providing MOUD to those with OUD.[viii] The researchers initially sent out 2986 surveys and received 836 surveys with analyzable responses.[ix] Of those 836 responses, 32% of jails reported making MOUD available in some capacity: 13% initiated and continued people on at least one medication, 11% of facilities only continued people on MOUD, and 17% provided more than one medication.[x] When only one medication was offered, the most common was naltrexone and the least common was methadone.[xi]

Availability of MOUD in NC Jails

People with disabilities, including those with OUD, are overrepresented in our jails and prisons.[xii] People of color who have OUD are especially overrepresented.[xiii] The ADA protects people with OUD from discrimination. The right to treatment for medical conditions like OUD is protected. Denying medical treatment because someone has OUD is a form of discrimination.

Opioid use disorder is a medical condition and a disability that is protected under the Americans with Disabilities Act (ADA).[xiv] The  US Department of Justice (DOJ) published guidance in April of 2022 outlining protections for people with opioid use disorder (OUD) as a disability covered under the ADA.[xv] The ADA protects people who have OUD[xvi], including those in jails and prisons[xvii], and these facilities may not develop blanket policies that prohibit the use of MOUD to treat this medical condition.[xviii] In 2023 the DOJ entered into settlement agreements with several jails that further outline how facilities must offer FDA-approved MOUD as an option to all individuals entering the facility, continue those already on the medications, and offer MOUD to those with OUD who were not receiving treatment when they entered the facility.[xix]

Further legal support for the availability of MOUD to those with OUD exists through case law. The US Supreme Court held in 1976 that the 8th and 14th Amendments to the Constitution require jails and prisons to provide adequate medical care and not show deliberate indifference to an incarcerated persons’ serious medical needs.[xx] In addition, the US DOJ along with legal advocates across the country have filed lawsuits to protect the rights of those with OUD in carceral settings to have access to all three types of medications, especially agonist medications. There are a growing number of settlement agreements[xxi] and court cases[xxii] that reinforce the right of people with OUD to be provided MOUD in carceral settings.

Examples of Nationwide Cases and Settlements:

  • Other cases and settlements:
    • Pesce v. Coppinger (Mass. 2018): holding that it likely violates ADA and 8th Amendment to deny MOUD without individual assessment and contrary to treating provider’s recommendation.
    • Kortlever v. Whatcom County (Wash. 2024): class action settled with agreement to provide MOUD on class wide basis, including maintenance and induction primarily of buprenorphine.
    • Taylor v. Wexford Health Sources, Inc. (W. Va. 2024): denying defendant’s motion to dismiss claims for discrimination under both ADA and Section 504 of the Rehabilitation Act for denial of continuation of MOUD.
    • P.G. v. Jefferson County (N.Y. 2021): holding that it likely violates Title II of ADA and 14th Amendment of the Constitution to deny pre-trial detainees access to medically necessary methadone treatment.
    • Rokita v. Pa. Dep’t of Corr. (Pa. 2022): holding that refusal to provide plaintiff with access to a physician who could prescribe MAT properly underpins a claim that the DOC acted with deliberate indifference under the 8th Amendment and also violated ADA.
    • Smith v. Aroostook Cty. (Me. 2019): holding that it likely violates ADA to deny incarcerated persons access to MOUD without an individualized assessment of the need for medication. First circuit affirmed in 2019.

***Full citations for these cases available in endnotes 21-22***

DRNC’s Study of MOUD Offered in NC Jails

Given the legal requirements to provide FDA-approved treatments to those in jails with OUD, as it is a disability, DRNC reached out to all the counties in the state to ascertain the accessibility of these life-saving medications for individuals in custody. Beginning in March of 2023, DRNC examined the current availability of MOUD in North Carolina jails for those with OUD. As our staff gathered information, we also provided education and information to people with disabilities who experienced discrimination, outreach and information to the sheriffs, their staff, and other county employees, and engaged in other outreach to community providers.

Methods

DRNC used a variety of approaches to gather the most complete and up-to-date information. Although multiple approaches were used, our staff encountered some barriers to determining what each jail offered.

Initially, in April 2023, DRNC reached out to public health directors in all 100 counties across North Carolina and requested a copy of the jail medical plan. Public health directors are required to annually review and approve jail medical plans.[xxiii] Our staff did not receive many medical plans through this request as many public health directors reported they did not retain a copy or simply referred our staff to the jail to make the request. Staff re-requested the jail medical plans for all counties in a public records request to ensure obtaining the most up to date copy of the plan.

DRNC called the jail facilities in all 100 counties to complete a phone survey (copy available in Appendix A) to learn more about the prevalence of opioid use disorder among those entering NC jails and the provision of MOUD. 30 surveys were completed; however, the rest of the counties did not participate in the survey.

DRNC followed these outreach efforts with a public records request (copy available in Appendix B) sent out in late July 2023. Our team used this request to try to gather information about any existing MOUD plan, decision making around developing an MOUD plan, the number of intakes and the number of intakes with OUD (both by demographics gender, race, ethnicity), policies and medical plans to learn more about MOUD practices, etc… Beginning in September 2023 staff began providing follow-up reminders to those counties that did not provide public records in response to our request. Staff then began follow up to counties that did respond but did not produce the records. Some form of response was received from 49 counties.

Beginning in December 2023, DRNC followed up our efforts with an emailed letter to most of the sheriffs in NC. Letters were not sent to sheriffs with facilities that were already providing both continuation and induction of MOUD. Sheriffs were informed that our report would classify facilities based on the responses (or lack thereof) received. As a result of those letters, DRNC continued to receive more information. A general copy of the letter was also posted on our website.[xxiv]

When information was not available from the jail, other reliable sources of information (e.g., the CORE-NC Data Dashboard – Local Spending Plans[xxv]) were used to determine what care the jail was providing. Some information was also gained during jail monitoring visits performed as part of DRNC’s responsibilities as the federally mandated protection and advocacy agency (P&A) for the state. We used these multiple sources of information to try to determine the overall landscape of MOUD in NC Jails. While this information was collected to the best of our staff’s ability, some missing and contradictory information was received. Information continues to be gained as time goes on, so the findings below are a snapshot at the time of the report.

Findings

The numbers below are comprised of 92 counties (there are two regional jails and 5 counties had limited facilities)

Facility size: Large facilities 650+ person capacity; Medium facilities 649-201 person capacity; Small facilities under 200 person capacity

23 counties offered continuation (plans for pregnant women only or Vivitrol only are not included in this count)

  • The majority of these programs offer at least buprenorphine, many offer both buprenorphine and methadone
    • 2 require that the person bring their buprenorphine with them
  • 7 counties are also working toward offering induction
  • 1 county required that the provider be local
  • 3 are large facilities, 6 are medium facilities, 14 are small facilities

11 counties offered continuation and induction

  • most offer buprenorphine and methadone for continuation;
  • four offer only buprenorphine for induction;
  • one offers continuation and induction for Vivitrol or buprenorphine
  • 3 are large facilities, 6 are medium facilities, 2 are small facilities

3 counties offered MOUD to pregnant women only – all were small facilities

1 county offered a Vivitrol only plan – medium facility

7 counties were developing a plan

  • 2 of these counties were developing a Vivitrol only program
  • 1 is a large facility, 2 are medium facilities, 4 are small facilities

6 counties provided insufficient or contradictory information –3 are medium facilities and 3 are small facilities

26 counties had no MOUD program in the jail-1 is a medium facility, 25 are small facilities

15 counties had no response or responded but did not provide requested information[xxvi] – 1 is a large facility, 2 are medium facilities, 12 are small facilities

5 counties had no jails or had facilities with under 10 cells and are not included in the 92 counties

Discussion

This project was initiated to study the availability of MOUD in NC jails in March of 2023. Ten months later, at the time of this report, several things of note have been identified. Encouragingly, more MOUD plans were developed or are being developed than when at the onset of the project. More jails also intend to move from continuation to include induction. One of the project goals was to encourage people to talk about and think about treating OUD and to provide resources to advocate for action. DRNC believes that this trend of developing formal plans will continue. Some jails have or are expanding their MOUD programs to offer additional supports, such as access to mental health services, case management and peer supports, and help with reintegration after release. However, only about one-third of jails fell into the categories of continuation or continuation and induction of MOUD, so efforts need to continue to improve access to MOUD.

Many jails that responded to our public records request provided monthly intake data of all intakes into the jail. However, very few kept aggregate data of people at intake with an OUD. It was common for the medical providers to be the ones most often screening for OUD, and of those who responded to the question about a screening tool used, most reported using the Clinical Opiate Withdrawal Scale (COWS)[xxvii] protocol to screen intakes. Medical providers in general did not keep this information in aggregate data, but rather in individual case files.

Keeping aggregate data on the number of people entering the facility with disabilities is important for several reasons. It can provide concrete information to the administrators and sheriffs about the scope of the problem in the community. This information can then be used to request additional grants and other sources of funding to support an MOUD program in the facility. This information can also be used to evaluate the effectiveness of an existing program to determine if the program needs to be modified.

DRNC requested and received copies of jail medical plans (or portions of plans). Medical services at detention facilities are most often provided by contracted third party medical providers such as Wellpath, Southern Health Partners, IMS, Advanced Correctional Healthcare, NaphCare, etc. On review of the plans, or portions of plans, received, most medical plans did not contain information on the availability of MOUD but did often refer to detoxification and withdrawal protocols.

The medical plan itself was often not in sync with the actual MOUD policies/practices at the facilities. Sometimes the facility’s medical provider did have an MAT (using the provider’s terminology) or MOUD protocol available, but the facility did not adopt the plan. Some facilities use community providers for all or a portion of the medications and services for their MOUD program. Others use services through public health departments. For consistency, easier access, and better understanding of any MOUD policy, all jail medical plans should contain the current MOUD plan.

Some counties reported having a recovery court or similar program in their county that diverted people from jail in the first place. These programs may be helpful, but all should offer or allow MOUD to help retention in treatment and reduce risk of overdose death.[xxviii]

Although many positive changes were identified, barriers to MOUD and issues with existing plans were also discovered. These barriers will be addressed in the following section.

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[i] Off. of the Assistant Sec’y for Plan. and Eval. (ASPE), Incarceration & Reentry, NIH https://aspe.hhs.gov/topics/human-services/incarceration-reentry-0#:~:text=Each%20year%2C%20more%20than%20600%2C000,release%20and%20half%20are%20reincarcerated (last visited Feb. 8 2024).

[ii] Ashish P. Thakrar, G. Caleb Alexander, & Brendan Saloner, Trends in Buprenorphine Use in US Jails and Prisons From 2016 to 2021, 4 JAMA Network Open 1, 1 (2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8672225/
(citing NASEM, MEDICATIONS FOR OPIOID USE DISORDER SAVE LIVES 98 (2019)).

[iii] Christopher M. Jones, Beth Han, & Grant T. Baldwin, Use of Medication for Opioid Use Disorder Among Adults with Past Year Opioid Use Disorder in the US, 2021, 6 JAMA Network Open (2023), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2807964?resultClick=1.

[iv] Laura M. Maruschak et al., Opioid Use Disorder Screening and Treatment in Local Jails, 2019. Bureau of Just. Stats. (BJS) (2023), https://bjs.ojp.gov/library/publications/opioid-use-disorder-screening-and-treatment-local-jails-2019#0-0 (accessed using full report link on webpage).

[v] Id. at 1.

[vi] Carolyn Sufrin et al., Availability of Medications for Opioid Use Disorder in U.S. Jails, 38 J. Gen. Int. Med. 1573, 1573–75 (2023).

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Marcella Alsan, et al., Health Care in U.S. Correctional Facilities —A Limited and Threatened Constitutional Right, 388 New Eng. J. Med. 847, 847 (2023) (“more than half have a mental health problem, a substance use disorder, or both.”).

[xiii] NCCHC, Opioid Use Disorder Treatment in Correctional Settings (2021), (Mar. 11, 2021) https://www.ncchc.org/position-statements/opioid-use-disorder-treatment-in-correctional-settings-2021 (“While the prevalence of OUD is similar by race and ethnicity, black and brown people are more often incarcerated and more often have their treatment interrupted by incarceration.”) (citation omitted). Additionally, black/African Americans are approximately 5.1 times more likely than whites to be incarcerated, American Indian (Native American)/Alaska Natives are 4.1 times more likely and Hispanic are 2.5 times more likely to be incarcerated than whites. Id. See also Public Safety Performance Project, Racial Disparities Persist in Many U.S. Jails, PEW (May 16, 2023),  https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2023/05/racial-disparities-persist-in-many-us-jails (finding Black/African American people overrepresented in jail populations).

[xiv] See The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131–12134 (1990) (citing Title II, protecting individuals from discrimination in government programs); 42 U.S.C. §§ 12112, 12132, 12182 (prohibiting discrimination on the basis of disability); 42 U.S.C. §12102(1)-(2) (defining disability).

[xv] U.S. Dep’t. of Just. C.R. Div., The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery (Apr. 5, 2022), https://archive.ada.gov/opioid_guidance.pdf.

[xvi] Id. (citing 28 C.F.R. §§ 35.108(b)(2), 36.105(b)(2)). Regulations implementing Title I of the ADA define the term “physical or mental impairment” as including “any physiological disorder or condition.” See 29 C.F.R. § 1630.2(h).

[xvii] U.S. Dep’t. of Just. C.R. Div., The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery (Apr. 5, 2022), https://archive.ada.gov/opioid_guidance.pdf (citing 42 U.S.C. §§ 12131-12134).

[xviii] Id. (citing 42 U.S.C. §§ 12112, 12132, 12182 and § 12102(1)-(2)).

[xix] See e.g., U.S. Atty’s. Off. E.D Ky., U.S. Attorney’s Office Announces Agreement to Ensure Access to Medications for Opioid Use Disorder at Big Sandy Regional Detention (Dec. 4, 2023), https://www.justice.gov/usao-edky/pr/us-attorneys-office-announces-agreement-ensure-access-medications-opioid-use-disorder; U.S. Dep’t. of Just. Off. Pub. Affs., Justice Department Secures Agreement from Pennsylvania Jail to Provide Medications for Opioid Use Disorder (Nov. 30, 2023), https://www.justice.gov/opa/pr/justice-department-secures-agreement-pennsylvania-jail-provide-medications-opioid-use; U.S. Dept. of Just., Agreement to Resolve the Department of Justice’s Investigation of the Cumberland County Jail (May 17, 2023), https://www.justice.gov/opa/press-release/file/1584086/.

[xx] Estelle v. Gamble, 429 U.S. 97, 103 (1976).  Jail officers, doctors, and employees are deliberately indifferent when they know of a serious medical need yet fail to provide treatment, delay treatment or deny treatment for a non-medical reason. Id. at 104–105.

[xxi] E.g., Kortlever v. Whatcom County, ACLU Washington, https://www.aclu-wa.org/cases/kortlever-et-al-v-whatcom-county (last visited Feb. 12, 2024) (Class action settled with agreement to provide MOUD on class wide basis, including maintenance and induction primarily of buprenorphine); Finnigan v. Mendrick, No. 21-CV-341, 2021 WL 736228 (N.D. Ill. Feb. 24, 2021) (settlement provides Plaintiff access to her medication and made plans to implement a policy to provide MAT); Sclafani v. Mici, ACLU Massachusetts, https://www.aclum.org/en/cases/sclafani-v-mici (last visited Feb. 16, 2024) (settlement provides plaintiffs access medications throughout entire stay at facility); Smith v. Fitzpatrick, ACLU Maine (Sept. 28, 2018), https://www.aclumaine.org/en/cases/smith-v-fitzpatrick-et-al (MOUD medications will be provided while plaintiff remains in custody).  See also U.S. Atty’s. Off. E.D Ky., U.S. Attorney’s Office Announces Agreement to Ensure Access to Medications for Opioid Use Disorder at Big Sandy Regional Detention (Dec. 4, 2023), https://www.justice.gov/usao-edky/pr/us-attorneys-office-announces-agreement-ensure-access-medications-opioid-use-disorder; U.S. Dep’t. of Just. Off. Pub. Affs., Justice Department Secures Agreement from Pennsylvania Jail to Provide Medications for Opioid Use Disorder (Nov. 30, 2023), https://www.justice.gov/opa/pr/justice-department-secures-agreement-pennsylvania-jail-provide-medications-opioid-use; U.S. Dept. of Just., Agreement to Resolve the Department of Justice’s Investigation of the Cumberland County Jail (May 17, 2023), https://www.justice.gov/opa/press-release/file/1584086/.

[xxii] See Taylor v. Wexford Health Sources, Inc., No.2:23-cv-00475, 2024 U.S. Dist. LEXIS 1187*11 (2024) (denying defendant’s motion to dismiss claims for discrimination under both ADA and Rehabilitation Act for denial of continuation of MOUD);  Pesce v. Coppinger, 355 F. Supp. 3d 35 (D. Mass. 2018) (holding that it likely violates ADA and 8th Amendment to deny MOUD without individual assessment and contrary to treating provider’s recommendation); Smith v. Aroostook Cty., 376 F. Supp. 3d 146 (D. Me.), aff’d, 922 F.3d 41 (1st Cir. 2019) (granting a preliminary injunction and holding that it likely violates ADA to deny incarcerated person access to MOUD without an individualized assessment of the need for medication); Rokita v. Pa. Dep’t of Corr., 273 A.3d 1260 (Pa. Commw. Ct. 2022) (denying Commonwealth’s preliminary objection and holding that refusal to provide plaintiff with access to a physician who could prescribe MAT, allowed plaintiff to make out a claim that the DOC acted with deliberate indifference under the 8th Amendment and also violated ADA by having policy prohibiting MAT for the general population); P.G. v. Jefferson County, No. 5:21-CV-388-DNH-ML (N.D.N.Y. Sept. 7, 2021) (holding that it likely violates Title II of ADA and 14th Amendment of the Constitution to deny pre-trial detainees access to medically necessary methadone treatment); M.C. v. Jefferson Cty., No. 6:22-CV-190, 2022 U.S. Dist. LEXIS 87339 (N.D.N.Y. May 16, 2022) (granting class certification and preliminary injunction and holding that the facility’s policy to only provide MOUD to pregnant detainees and forcing others to go off of their MOUD without individualized assessments by a medical professional likely violates Title II of the ADA as well as the 8th and 14th Amendments).

[xxiii] 10A N.C. Admin. Code 14J .1001(e).

[xxiv] Open Letter to Sheriffs: ADA Requires MOUD in Jails, DRNC (Jan. 15, 2024), https://disabilityrightsnc.org/news/drnc-newsfeed/open-letter-to-sheriffs-ada-requires-moud-in-jails/

[xxv] North Carolina Opioid Settlements, Data Dashboard—Local Spending Plans, CORE-NC, https://ncopioidsettlement.org/data-dashboards/spending-plans/ (last visited Feb. 13, 2024).

[xxvi] Lack of transparency was an issue for the jails in some of the counties.  This lack of transparency can be problematic for determining whether or not people with disabilities are being provided with the healthcare services that they are entitled to receive.  A total of 17 counties provided no information in response our requests, although some indicated that they would, but had not provided the information as of the time of this report.  For 15 of these counties, we were not able to gather information from other reliable sources about the practices in those facilities. Those counties/facilities include Bertie-Martin Regional Jail, Alamance, Beaufort, Craven, Granville, Halifax, Henderson, Hertford, Mecklenburg, Moore, Pamlico, Rowan, Rutherford, Scotland, and Swain.  2 counties, Robeson and New Hanover County, also did not provide the requested information by the time of the report, but we were able to gather information from other reliable sources.

[xxvii] Donald R. Wesson & Walter Ling, The Clinical Opiate Withdrawal Scale (COWS), 35 J. Psychoactive Drugs 253, 253–59 (2003).

[xxviii] See generally Taylor Sisk, Once-Resistant Rural Court Officials Begin to Embrace Medications to Treat Addiction, NC Health News (Jul. 29, 2023), https://www.northcarolinahealthnews.org/2023/07/29/drug-courts-embrace-medication-assisted-treamen/ (discussing the expansion of MOUD treatments into rural North Carolina); Julia Dickinson-Gomez et al., Barriers to Drug Treatment in Police Diversion Programs and Drug Courts: A Qualitative Analysis, 92 Am. J. Orthopsychiatry 692, 692–701 (2022) (studying the success of drug diversion programs in three states); Douglas B. Marlowe et al., Drug Court Utilization of Medications for Opioid Use Disorder in High Opioid Mortality Communities, 141 J. Substance Abuse Treatment 108850 (2022) (providing recommendations on how diversion programs using MOUD can be expanded).

 

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