Progress, if not perfection? SLP’s end-of-year summary of 2021 California substance use disorder (SUD) legislative proposals
NOTE: Sober Linings Playbook is a personal website. Any views or opinions expressed herein belong solely to the website owner and do not represent those of individuals or organizations the owner may be associated with in a professional or personal capacity, unless explicitly stated.
The news about addiction tends to be bleak.
In 2020 there were 93,000 overdose deaths in the U.S. - a 30 percent increase over the previous year (Can you imagine the public outcry and response a similar one-year spike in unemployment, cancer deaths or homicides would bring?)
The opioid settlement and the Sackler family's immunity from further financial liability are viewed by many as something short of justice. And valid concerns remain about whether settlement dollars will be used appropriately to help victims and support effective treatment and prevention programs.
And let’s not forget fentanyl. The highly potent opioid found its way into much of the illicit drug supply with devastating consequences. Adding insult to injury, unfounded fears of overdose by physical contact with fentanyl has sparked a bit of a moral panic that threatens to increase stigma experienced by drug users and reduce the willingness of first responders and bystanders to render aid to overdose victims.
But not all the news is bad.
Video conferencing technology has made addiction treatment and peer support more accessible. Growing acceptance of Medication Assisted Treatment (MAT) means more people are being given access to this and other evidence-based treatments.
The opioid crisis, at least to some extent, appears to have shifted blame from drug users to drug manufacturers and spawned a narrative about the pathway to addiction that offers more sympathy and less stigma for people who suffer from opioid use disorders.
The rise of the “sober curious” movement has made it okay to question one’s relationship with alcohol and other drugs without hitting rock bottom. Increasingly inclusive views of sobriety that focus more on quality of life than abstinence have opened the door for more people to set foot on the path to recovery.
In my opinion, another bright spot is the effort state and federal lawmakers are making to pursue evidence-based policy proposals aimed at better managing addiction than we have in the past.
At the federal level, the Comprehensive Addiction and Recovery Act (CARA) is being revisited. The Biden administration has loosened (but not eliminated) the X-waiver requirement for doctors prescribing buprenorphine to treat opioid addiction. New York’s Governor Hochul recently signed several anti-addiction measures, including one to decriminalize the sale and possession of syringes. Rhode Island recently passed legislation that would allow for the establishment of “safe injection sites.” Oregon voters approved ballot measure 110, which decriminalizes small amounts of “hard” drugs and establishes a variety of treatment programs and policies.
I focus here on California not because the Golden State is necessarily representative of the nation as a whole, or because it is a bellwether, but primarily because of convenience. California is my home state, and keeping track of legislation nationwide is too large an undertaking for Sober Linings Playbook (SLP).
October 10 was the last day for California’s Governor Newsom to sign or veto bills passed by the Legislature. What follows are summaries of some of the key legislative proposals SLP has been tracking this year. The list is by no means comprehensive, but I believe it’s a solid summary of significant California legislative proposals aimed at advancing the public policy discussion in the areas of harm reduction, treatment industry reform, patient/client rights and alcohol sales.
Harm Reduction
SB 73 - end mandatory minimum sentences | SB 57 - safe injection sites | AB 1344 - CEQA exemption for needle exchange programs | SB 367 - naloxone on college campuses | SB 110 - contingency management Medi-Cal benefit for stimulant use disorders
Treatment Industry Reforms
AB 541 - tobacco assessment and treatment requirement | AB 381 naloxone requirement | SB 434 - prohibits false marketing claims | SB 541- requires disclosure of license or certification | AB 1158 - insurance coverage requirements for programs and contractors | AB 666 - SUD treatment workforce development
Patient/Client Rights
SB 221 - timely access to care | SB 349 - client bill of rights | AB 1542 - secured residential treatment
Alcohol Sales
SB 314, AB 239, SB 793, SB 389 - extension or expansion of alcohol sales
Harm Reduction and Treatment Innovations
Will the end of mandatory minimum sentences pave the way for treating, rather than incarcerating, nonviolent drug offenders?
Senator Wiener’s SB 73 permits a court to grant probation for specified drug offenses which are currently ineligible for probation. According to an October 6, 2021 article in The Hill, the bill was state legislators' fourth attempt at such a proposal. Previous versions in 2018 and 2019 failed due to opposition from law enforcement groups. The proposal was put on hold in 2020 when the COVID-19 pandemic forced lawmakers to pare down their legislative agendas.
According to Senator Wiener:
“The racist, failed War on Drugs has helped build our system of mass incarceration, and we must dismantle and end its vestiges, which are still in place today. Our prisons and jails are filled with people, particularly from communities of color, who have committed low-level, nonviolent drug offenses and who would be much better served by non-carceral options like probation, rehabilitation and treatment.”
In an Oct. 6, 2021 LA Weekly article, California State Director for the Drug Policy Alliance Jeannette Zanipatin said:
“We are grateful to Senator Wiener and Assembly Member Carrillo for leading the fight to remove this antiquated and cruel policy that has allowed the drug war to tie judges’ hands for far too long…Forcing judges to send people to jail when they honestly believe that they and their communities would be better served with probation or other community services is incredibly counterproductive and fiscally irresponsible. We are thankful the legislature and Governor Newsom have realized this, and are taking these important steps to set things right in California.”
Safe injection sites will have to wait in California (and likely elsewhere as well)
Senator Wiener’s SB 57 would have allowed for the establishment of pilot “overdose prevention programs” (OPPs) in Los Angeles, San Francisco and Oakland. The proposal made it out of the Senate but was held in the Assembly and never made it to the Governor’s desk.
Specifically, SB 57 would have allowed approved entities to operate programs that provide “hygienic space supervised by trained staff where people who can use drugs can consume pre-obtained drugs, sterile consumption supplies, access or referrals to substance use disorder treatment” and staff trained to use an opioid antagonist such as naloxone to clients experiencing an overdose. The bill would have also exempted staff from civil, criminal and professional liability for services provided at the sites.
According to the author, “approximately 165 OPPs exist in ten countries, and have been rigorously researched and shown to reduce health and safety problems associated with drug use, including public drug use, discarded syringes, HIV and hepatitis infections, and overdose deaths.” SB 57 bill was approved by the Senate but did not make it out of the Assembly.
The distinction of first-in-the-nation safe injection site legislation belongs to Rhode Island where Governor McKee signed SB 16, which establishes a two-year pilot program to design, open and operate the nation’s first supervised injection sites. But passing the law is only a first step. Before the Ocean State sees any safe consumption sites open their doors, advocates must first get counties to opt in, convince neighbors to accept the centers, get the police to cooperate and hope the federal government doesn’t block the effort.
New California law removes key obstacle for needle and syringe exchange programs
Assembly member Arambula’s AB 1344 makes it easier to establish and operate needle and syringe exchange programs (SEPs) by exempting them from review under the California Environmental Quality Act (CEQA). According to the author, “SEPs are a cost-effective strategy instituted to slow the spread of deadly and disabling conditions. They have a proven track record of reducing the transmission of many deadly diseases, including HIV and hepatitis C.”
While SLP believes providing clean needles, allowing for the disposal of used needles and reducing the spread of disease inherently enhances the quality of the environment, that belief is not universally held.
Opponents of SEPs have filed CEQA lawsuits against programs in Orange County, Butte County, and Santa Cruz. AB 1344 will require opponents to seek other grounds for arguments to keep needle exchange programs out of their neighborhoods.
Proposal to require opioid overdose reversal medication on California college campuses failed to make it to Governor’s desk
Senator Hurtado’s SB 367 would have required California Community Colleges and California State University campuses (and requested the University of California) to distribute a federally approved opioid overdose reversal medication to students and to provide educational and preventive information about opioid overdose and reversal medication.
The bill was approved by the Senate on a 37-0 vote but did not make it out of the Assembly. Senate bill analyses do not list any groups opposed to the measure, which received support from nonprofit advocacy organizations, the treatment industry and law enforcement. Hopefully the lack of opposition means work is still being done on the details and the proposal will return to the legislature for further consideration.
Governor Newsom vetoes proposal to include contingency management as a Medicaid benefit for stimulant use disorders, but asks for federal dollars to pay for a pilot program
SB 110 (Wiener) would have required substance use disorder services provided under Medi-Cal (the state’s Medicaid program) to include contingency management (CM) services as an optional benefit.
Contingency management is a type of behavioral therapy that uses incentives to reinforce desired behavior. Incentives typically include vouchers, small amounts of money or tokens that can be exchanged for rewards.
Contingency management is not widely used despite evidence of its effectiveness and the fact that the federal government has been using it for military veterans since 2011. According to a 2011 article in the Psychiatrist journal, “contingency management is a highly effective treatment for substance use and related disorders” that has been widely tested and evaluated. The U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) reports there is strong evidence to support the use of contingency management for stimulant use disorders for which there are currently no medication assisted treatment (MAT) options available.
An October 8, 2021 article in U.S. News and World Report says Governor Newsom claims to support contingency management but wants to test it out first before signing a law to make it permanent. The state budget approved in July includes money for a pilot program. The Governor has asked for federal dollars to pay for it.
Here is the Governor’s veto message:
'“I am returning Senate Bill 110 without my signature.
This bill would require Medi-Cal substance use disorder services to include contingency management services as an optional benefit under the Drug Medi-Cal organized delivery system, subject to utilization controls.
Given the promise of contingency management as a treatment for stimulant use disorders, the 2021-22 Budget includes funding to support a pilot contingency management Medi-Cal benefit from January 2022 through March 2024. The Department of Health Care Services has sought federal approval for this pilot project and will work expeditiously to implement it once it is authorized.
The outcomes and lessons learned from the pilot project should be evaluated before permanently extending the Medi-Cal benefit. As such, this bill is premature, and I am returning it without my signature.”
SUD Treatment Industry Reforms
California addiction treatment programs will be required to assess for tobacco use and offer cessation treatment or referrals
On Sept. 1, 2021, Governor Newsom signed AB 541 (Berman, 2021), which requires licensed facilities or certified programs to assess a patient or client for the use of tobacco products at the time of initial intake and to provide information and treatment (or a referral to treatment) if the patient or client has a tobacco use disorder.
In a press release, the bill’s author, Assembly member Berman said:
“I was surprised to learn that people with substance use disorders are more likely to die from tobacco-related illness than from the addiction that brings them to treatment in the first place. When patients enter drug treatment, they should be provided with the tools to quit all substances, not become addicted to a new one.”
For anyone who thinks quitting tobacco is too much additional work for people in early recovery, or possibly even a threat to sobriety, the bill’s text makes the evidence-based case for tobacco cessation noting that:
(1) People with mental health and/or substance use disorders are more than twice as likely to smoke cigarettes and are more likely to die from a smoking-related illness than from their behavioral health conditions;
(2) Research shows patients who are concomitantly treated for tobacco use disorder while receiving addiction treatment are 25 percent more likely to remain abstinent one year after treatment compared to those not treated for tobacco use disorder; and
(3) The CDC concludes tobacco cessation in behavioral health treatment could improve both physical and behavioral health outcomes.
Licensed treatment facilities will be required to maintain opioid overdose reversal medication and staff trained in the medication’s use on site
Even if California’s public colleges and universities won’t be required to provide naloxone, addiction treatment programs will have to do so by 2024. Assembly Member Davies’ AB 381, which was signed into law by the Governor, will require licensed addiction treatment facilities to maintain at least two unexpired doses of naloxone or any other approved opioid antagonist on the premises and have at least one staff members on site who has been trained to use the mediation. The bill requires the California Department of Health Care Services to adopt regulations to implement these provisions on or before July 1, 2024.
New laws will require treatment facilities and programs to refrain from fraudulent marketing, disclose license and certification status, carry adequate insurance
Senator Bates’ SB 434 prohibits entities licensed or certified by the state to provide substance use or mental health disorder services from making false statements or providing false information in advertising or marketing. The proposal was named “Brandon’s Law” after Brandon Nelson who died in 2018 at an unlicensed rehab home promising services it did not provide.
The author cites an investigation by the Southern California News Group (Rehab Riviera: An Investigation into the Southern California Rehab Industry) that exposed dishonest operators for taking advantage of vulnerable individuals and highlighted the practice of “body brokering” where prospective rehab clients are bought and sold based on the potential value of insurance payments.
Governor Newsom also signed Senator Bates’ SB 541 which requires an entity licensed or certified by the Department of Health Care Services to provide substance use disorder treatment services to disclose information about its license or certification.
Another bill that was signed into law, AB 1158 (Petrie-Norris), sets minimum requirements for insurance coverage that licensed treatment facilities and recovery residences must carry. The bill’s author also cited the investigative “Rehab Riviera” story as a reason for the bill, arguing that “by guaranteeing minimum insurance coverage levels, patients and their families will be much better protected.”
The Los Angeles County Sober Living Coalition (LACSLC) argues that commercially operated treatment centers should not be confused with small homes used by myriad government entities for vulnerable people. LACSLC says small operators who make a few beds available for poor people will not be able to maintain affordable beds for people who chose recovery if they are held to the same standard as large, licensed recovery centers.
Substance use disorder workforce development proposal fails to move forward this year
Assembly Member Chiu’s AB 666 would have required the Department of Health Care Services (DHCS) to conduct a needs assessment for the substance use disorder (SUD) treatment workforce, determine barriers to entry and implement a SUD workforce development program “to support a career ladder for the SUD workforce.”
Specifically, the bill would have required DHCS to deliver a report on the SUD workforce needs assessment study by July 1, 2022, and to implement a workforce development program no later than January 1, 2024. Under the proposal, the work would have been paid for with $9 million from the state’s $573 million settlement with McKinsey & Company over the consulting firm’s role in the opioid crisis.
Additionally, the bill’s author states the proposal would address the shortage and lack of diversity of SUD professionals by providing tuition assistance for students to study behavioral health related fields, allocating fee waivers for tests and certification expenses, and increasing language access to preparatory materials.
The bill received support from treatment industry advocacy groups and programs. No official opposition was listed in the bill analysis. SLP will be watching to see whether this proposal comes back next year.
Patients’/clients’ rights
Governor Newsom signed into law Senator Wiener’s proposal to strengthen timely care for mental health and substance use disorders
Wiener’s SB 221 requires health plans and insurers to provide patients with timely follow-up care for mental health and substance use disorders and will go into effect July 1, 2022. Specifically, the bill codifies existing timely access to care standards for health plans and health insurers, applies these requirements to Medi-Cal managed care plans, adds a standard for non-urgent follow-up appointments for nonphysician mental health care or substance use disorder providers that is within 10 business days of the prior appointment, and prohibits contracting providers and employees from being disciplined for informing patients about timely access standards.
According to Senator Wiener:
“With our escalating mental health and addiction crises, SB 221 will ensure people receive timely follow-up care when they seek mental health treatment. With the support of health care workers, patients, and advocates, we continue to make huge strides when it comes to taking mental health and addiction seriously. People need care, and they need it in a timely manner. Health care delayed is health care denied. SB 221 is a major victory for the movement to ensure mental health is treated as important as physical health.”
Proposal to create a client bill of rights for persons receiving SUD treatment stalls in the Assembly
Senator Umberg’s SB 349 would have required a SUD treatment provider to adopt a client bill of rights for persons receiving treatment for a SUD, and to make the bill of rights available to all clients and prospective clients. The proposal also would have established requirements and prohibitions related to the marketing and advertising practices of SUD treatment providers.
SB 349 was supported by SUD treatment providers and advocacy groups, including the California Consortium of Addiction Programs and Professionals. The only group listed in opposition was the California Association of Alcohol and Drug Program Executives (CAADPE) who took an “oppose unless amended” position on the proposal, requesting an exemption for programs already licensed or certified by the State of California and under contract with counties.
CAADPE points out that providers licensed or certified by the state are already subject to state laws and regulations, including mandatory patient rights afforded to all patients treated in licensed or certified SUD treatment programs. CAADPE also noted that the majority of publicly funded treatment services now fall under the Drug Medi-Cal Organized Delivery System, which has a robust set of patient rights.
Controversial bill to send people convicted of drug offenses to secured treatment programs vetoed by Governor Newsom
Assembly Member McCarty’s AB 1542 would have authorized California’s Yolo county to offer a pilot Secured Residential Treatment Program for individuals suffering from substance use disorders (SUDs) who have been convicted of “drug-motivated” felony crimes.
Specifically, the bill would have required a judge to offer a defendant voluntary participation in the pilot program “as an alternative to a jail or prison sentence otherwise imposed, if the defendant’s crime was caused in whole or in part by the defendant’s SUD, the crime was not a sex crime, serious or violent felony, or nonviolent drug possession, and the judge makes their determination based on the recommendations of the treatment providers, on a finding by the health and human services agency of the county that the defendant’s participation would be appropriate…”
In his veto message, Governor Newsom acknowledged the importance of diverting individuals from the criminal justice system but raised concerns about the “voluntary” nature of the program:
“Coerced treatment for substance use disorder is not the answer. While this pilot would give a person the choice between incarceration and treatment, I am concerned that this is a false choice that effectively leads to forced treatment.”
Opponents of the measure echoed the governor’s concerns, arguing “secure treatment” is incarceration by another name. Human Rights Watch included the following statement in a letter to the bill’s author and the chair of the Assembly’s Committee on Public Safety:
“This bill proposes forcing people involuntarily into “secured” or locked treatment, regulated by the courts, thus blurring the lines between medical care and punishment, and undermining the goal of helping those in need. It runs directly counter to the principle of free and informed consent to mental health treatment, which is a cornerstone of the right to health. Conflating health treatment and jailing, as envisioned by AB 1542, risks substantial human rights abuse, is ineffective as a treatment, and takes resources and policy focus away from initiatives that are much more likely to help people.”
Alcohol Sales
Several proposals expand, extend COVID-19 easing of restrictions on alcohol sales
If you’re keeping score, you’ve likely locked in your nomination for San Francisco’s Senator Scott Wiener as Sober Lining’s Playbook 2021 California Legislator of the Year. The Senator does have an impressive track record of championing reasonable, evidence-based – and often controversial – proposals to help people who suffer from substance use disorders.
Wiener’s 2021 agenda included proposals to establish safe injection sites and contingency management services for stimulant use disorders, to end mandatory minimum sentences for drug offenders and to ensure timely access to care for people seeking mental health and SUD treatment.
But not so fast! Senator Wiener also authored three bills to extend the COVID-19-related easing of restrictions on alcohol sales. The Governor signed SB 314 which extends restaurants’ ability to serve alcohol in shared or expanded spaces.
Wiener is also listed as a co-author of AB 239, which will allow winegrowers and brandy manufacturers to sell and deliver the fermented fruits of their labor to consumers away from their premises in containers supplied by the consumer.
SB 793, which was ultimately pulled by Wiener and did not move forward, would have established a new alcohol license for designated music venues.
In a similar vein, Senator Dodd’s SB 389, which did pass, will extend restaurants’ ability to sell cocktails to go through 2026.
Proponents make the case that proposals to expand alcohol sales will bring some needed relief to a hospitality industry hard hit by the pandemic.
Opponents such as California’s Alcohol Justice argue expansion of retail sales of alcohol harm public health, increase the risks of drunk driving injuries and deaths, and make alcohol more accessible to minors.
What to make of it all?
For people who support evidence-based treatment for substance use disorders and view those who suffer from addiction as people in need of treatment rather than punishment, there were some clear legislative “wins” in California this year.
The end of mandatory minimum sentences for drug offenses means more convictions may result in treatment instead of incarceration. The CEQA exemption for needle exchange programs will make it more difficult for NIMBY lawsuits to shut them down. New laws will require greater transparency in the treatment industry and require more timely access to care.
On the other hand, some may view the failure of the safe injection sites, contingency management and SUD treatment industry workforce development proposals as setbacks.
I take a more measured view. Perhaps it’s because my experience working in and around the Capitol in Sacramento has taught me patience and persistence (I once worked on a very worthy retirement security legislative proposal that didn’t become law until 8 years after it was first introduced!).
Sometimes well-reasoned proposals fail because of strong and monied opposition. But often it’s simply because the details of a program or policy – or the funding sources – have not been worked out and require further discussion.
And in a world where addiction is still viewed through a moralistic rather than medical or mental health lens, where using drugs to treat substance use disorders is often considered substituting one addiction for another, and where headlines describe contingency management as “paying people to stay sober,” it’s unrealistic to expect novel policy solutions to succeed the first time out of the gate, no matter how strong the evidence behind them.
So why does my first year of paying attention to substance use disorder legislative proposals leave me hopeful? Because each proposal, whether successful this year or not, spurred healthy public debate (and hopefully a bit of education) to further the discussion about harm reduction, treatment industry reforms, patients’ rights and other addiction-related topics.
Sober Linings Playbook