Despite the Trump Administration’s declaration of a state of emergency on October 26, 2017, the federal response to the opioid crisis largely languished on the back burner—much to the chagrin of states in the trenches of the opioid epidemic. However, based on the flurry of activity over the past several weeks, the federal government response now seems to be gathering substantive momentum, with various agencies and government actors launching attacks on all fronts—administrative, legislative, and enforcement alike. The federal government’s recent efforts present opportunities for health care organizations, life sciences companies, and health tech companies to get involved at the ground level to help influence opioid policy and provide needed products, services, and support to reduce the incidence of opioid abuse and address the health care needs of patients.

Administrative Activity

  • Food and Drug Administration (FDA) Draft Guidance on Medication-Assisted Treatment for Opioid Dependence. On April 20, 2018, the FDA released the first of two draft guidance documents to help drug companies develop medication-assisted treatment (MAT) options for people with opioid use disorder (OUD). The April 20 guidance outlines the FDA’s current position on “drug development and clinical trial design issues” related to the study of the sustained-release (“depot”) version of buprenorphine, one of the three primary prescription drugs for the treatment of OUD. The guidance specifically outlines instances in which the submission of a new drug application (NDA) through § 505(b)(2) of the Federal Food, Drug, and Cosmetic Act may be appropriate, based on whether the proposed new drug (1) is similar to a drug that has already been approved, or (2) has novel features compared to an approved drug. The guidance also outlines the types of efficacy studies that the FDA recommends for depot buprenorphine drugs. Comments on the draft are due by June 22, 2018, and may be submitted via Federal Register website here. The FDA’s forthcoming second guidance is intended to provide a framework for the development of novel clinical products, measures, or other “end points” that can form the basis of additional MAT approvals. No release date has been set for this guidance.
  • Omnibus Funding for Centers for Disease Control and Prevention (CDC) “Opioid Prescription Drug Overdose (PDO) Prevention Activity.” As part of its more than $1 trillion spending package passed on March 23, 2018, Congress’s Omnibus bill (H.R.1625 (115)) allocated $30 million in funding for Prescription Drug Monitoring Programs (PDMPs). Along with the legislation, the House Appropriations Committee also issued an explanatory statement that included direction to the CDC to promote the use of PDMPs, including “making them more interconnected, real-time, and usable for public health surveillance and clinical decision making.” The CDC is also “encouraged to work with the Office of the National Coordinator for Health Information Technology [ONC] to enhance the integration of PDMPs and electronic health records.”
  • Trump Administration’s “Stop Opioid Abuse and Reduce Drug Supply and Demand” Initiative. On March 18, 2018, President Trump announced the creation of his “Stop Opioid Abuse” Initiative during his speech in Manchester, New Hampshire. The Initiative includes three major components:

    1. Reduce demand and over-prescription. Part One of the Initiative is focused on educating Americans about the danger of opioids, as well as curbing the over-prescription of opioids. This portion of the Initiative would include: a nationwide evidence-based campaign to raise public awareness; supporting research and development efforts for innovative technologies and therapies to prevent addiction (including a vaccine); and implementing a “Safe Prescribing Plan” that includes creating a national interoperable PDMP.
    2. Cut off the supply of illicit drugs. This portion of the Initiative is aimed primarily at enforcement, and includes preventing opioids from entering the United States (via land, air, and sea); creating various enforcement task forces and teams (described in detail in the “Enforcement Activities” section below); and increasing criminal penalties for opioid dealers, up to and including the death penalty.
    3. Help those struggling with addiction. The third and final prong of the Initiative focuses on helping those struggling with addiction by using evidence-based treatment and recovery support services. This includes supplying first responders with naloxone to reduce overdoses; incentivizing the use and improvement of overdose tracking systems at the state and local level; and treating criminal offenders struggling with addiction.
  • National PDMP and National Electronic Prescribing Platform. On December 11, 2017, FDA Commissioner Scott Gottlieb proposed the creation of an interoperable national PDMP platform. Speaking on behalf of the FDA’s Opioid Policy Steering Committee, Gottlieb suggested that a national PDMP would help “identify patients who could be misusing or abusing prescription opioids and provide real-time alerts about potentially harmful drug-drug combinations.” President Trump himself has backed the idea, calling for the leveraging of federal funds to ensure that states transition to a national PDMP as part of his “Stop Opioid Abuse” Initiative. Additionally, the Acting Administrator of the Drug Enforcement Agency (DEA), Robert A. Patterson, testified on March 20, 2018 about the DEA’s need for a national or an interoperable PDMP solution because the DEA has had limited access to state PDMP data. Gottlieb has also called for a national e-prescribing platform, modeled after the national e-prescribing platform for Part D prescriptions proposed in the Every Prescription Conveyed Securely Act, introduced by Rep. Katherine Clark (D-MA) in July 2017.
  • FDA Risk Evaluation and Mitigation Strategies (REMS) Drug Safety Programs to Educate Providers. The FDA is exploring whether it can use drug safety programs, known as REMS, to educate doctors on opioid prescribing. REMS are programs for certain medications with serious safety concerns, and are used to help ensure the benefits of the medication outweigh its risks. REMS include a risk mitigation goal, as well as information communicated to and/or required activities to be undertaken by one or more participants who prescribe, dispense or take the medication (e.g., health care providers, pharmacists, or patients). The FDA has authority to require drug manufacturers to use REMS, but does not have the authority to mandate physician education because they cannot regulate the practice of medicine. However, a national PDMP could address this authority gap. On January 30, 2018, FDA Commissioner Gottlieb announced the agency’s release of a revised and updated Blueprint, “Opioid Analgesic REMS Education Blueprint for Health Care Providers Involved in the Treatment and Monitoring of Patients with Pain,” which “contains core educational messages for health care providers involved in the treatment and monitoring of patients with pain,” and also includes more information on pain management.
  • Surgeon General Advisory on Naloxone. On April 5, 2018, Surgeon General Jerome Adams issued an advisory encouraging expanded use of the overdose-reversing drug naloxone. The advisory calls on prescribers, substance use disorder treatment providers, and pharmacists to: (1) learn how to identify patients at high risk for overdose; (2) find out whether their states allow pharmacists to prescribe naloxone independently, or to dispense naloxone under a standing order or collaborative practice agreement; (3) prescribe or dispense naloxone to those at elevated risk for opioid overdose, and to their friends and family members; and (4) use their states’ PDMPs. Adams’ advisory also directs patients and the public to talk with a doctor or pharmacist about getting naloxone, learn the signs of opioid overdose, and get trained to administer naloxone. FDA Commissioner Scott Gottlieb backed Adams’ recommendation and noted that the agency is encouraging drug manufacturers to develop an over-the-counter version of naloxone. While many stakeholders are proponents of the Surgeon General’s proposal, they have also raised the issue of cost as a potential barrier to supplying the drug. (The most well-known and user-friendly version of naloxone, known as Narcan, costs $125 for a two-pack for regular consumers and $75 for two doses for health departments and first responders.)

Legislative Activity

  • Recently-Introduced Legislation. Members of Congress have not been shy about making a commitment to combat the opioid epidemic—and using their legislative heft to do it. Various members of Congress on both sides of the aisle have introduced almost 100 different bills in the House and Senate over the past 4 months (building on bills introduced in 2017 during this 115th Congress), many of which have been considered and discussed during a series of legislative hearings held by the House Energy & Commerce Committee and the Senate Committee on Health, Education, Labor and Pensions (HELP) specifically focused on legislative efforts to address the opioid crisis. To show the various solutions advanced to combat the opioid epidemic, below is a selected list of some of these legislative proposals.

    • H.R. __ (marked up and passed out of the House Energy & Commerce Health Subcommittee by voice vote on April 25, 2018) – This proposed legislation, authored by Representative Morgan Griffith (R-VA), is intended to enhance and improve state-run PDMPs. Specifically, the draft is intended to improve current federal support for PDMPs by requiring a coordinated effort between the CDC, the Substance Abuse and Mental Health Services Administration (SAMHSA), and the Office of the National Coordinator for Health Information Technology (ONC) to improve surveillance, data collection, and integration of PDMP data into physician clinical workflow. The goal is for timely, complete and accurate information to be delivered to providers and dispensers, allowing them to make the best clinical decisions for their patients at the point of care.
    • H.R. 3331 (marked up and passed out of the House Energy & Commerce Health Subcommittee by voice vote on April 25, 2018) – This proposed legislation, authored by Representative Lynn Jenkins (R-KS), is intended to promote the testing of incentive payments for behavioral health providers to adopt and use certified electronic health record technology.
    • The Opioid Response Act of 2018, S. 2680 (introduced April 16, 2018) – This bill from the Senate HELP Committee highlights four different agencies—the FDA, the CDC, SAMHSA, and the National Institutes of Health (NIH)—to encourage their coordination in addressing the opioid epidemic. The draft legislation contains public health approaches that significantly overlap with the Trump Administration’s “Stop Opioid Abuse” Initiative. To spur development of new treatments for pain as well as addiction, the NIH would be given special flexibility to move faster on opioid-related research. The FDA would also be tasked with helping to create new medications by updating the development process for new non-addictive and non-opioid pain medicines. The draft does not include any new funding, but does authorize the creation of a number of new grant programs and the addition of funding to existing grant programs. In coordination with SAMHSA, the bill also prioritizes funding in states with the highest overdose rates. (Lawmakers are still discussing specific funding amounts for many of the grants.) The draft legislation also authorizes new grants for communities to set up comprehensive opioid recovery centers that are required to provide medication-assisted treatment, counseling, and any inpatient treatment or housing services as needed. The draft also creates an interagency task force to help recommend best practices for supporting children and families who have experienced or are at risk of experiencing trauma, which often leads to substance abuse.
    • Special Registration for Telemedicine Clarification Act of 2018, H.R. 5483 (introduced April 12, 2018; marked up and passed out of the House Energy & Commerce Health Subcommittee by voice vote on April 25, 2018) – This bill, authored by Reps. Buddy Carter (R-GA) and Rep. Cheri Bustos (D-IL), will clarify telemedicine waivers. Federal law permits the Attorney General to issue a special registration to health care providers to prescribe controlled substances via telemedicine in legitimate emergency situations, such as a lack of access to an in-person specialist. Unfortunately, the waiver process has never been implemented through regulation, and some patients do not have the emergency access they need for treatment. This bipartisan draft directs the Attorney General, with the Secretary of HHS, to promulgate interim final regulations within 30 days of passage of the law.
  • Congressional Committee Actions to Spur Legislation, Administrative Action, and Consider Industry Stakeholder Input. Despite the slew of legislation introduced to combat the opioid epidemic as of late, Congress is still calling for input from the industry for recommendations on how to stop opioid abuse (including in Medicare). Various committees have taken a prominent and active role in framing the dialogue around the opioid epidemic.

    • Combatting the Opioid Crisis (Senate) – The Senate HELP Committee has held four hearings in 2018 to discuss ways in which the Committee can develop legislation to utilize data and technology to prevent addiction.

      • At the Committee’s most recent hearing, on April 24, 2018, it held a legislative hearing to mark up and pass their opioid bill out of Committee.
    • Combatting the Opioid Crisis (House of Representatives) – The House Energy & Commerce Committee has already held four hearings and two events throughout Spring 2018 to discuss topics related to the opioid crisis and consider relevant legislation.

      • At the Committee’s most recent hearing, on April 25, 2018, the Health Subcommittee (chaired by Rep. Michael C. Burgess, M.D. (R-TX)), held a legislative markup hearing and advanced 57 opioid-related bills to the full Energy & Commerce Committee.  These bills—if passed out of full Committee—would be poised to improve access to care for individuals suffering from substance use disorder, provide the health care system with tools and resources it needs to care for patients, and help prevent future misuse of opioids.
      • The House Energy & Commerce Committee held a public event where they listened to personal stories from the Opioid Crisis on April 19, 2018.
      • The House Energy & Commerce Health Subcommittee Chairman Burgess led a group of bipartisan members of the Energy and Commerce Committee in a Special Order on the House floor on April 18, 2018. The members spoke about the opioid crisis that is ravaging the entire country, and the Committee’s ongoing legislative and investigative efforts to help stem the tide.
    • The Opioid Crisis: Stopping the Flow of Synthetic Opioids in the International Mail System (House of Representatives) – On April 25, 2018, the House Ways and Means Trade Subcommittee held a hearing to discuss ways in which Congress can develop policy to stop the flow of synthetic opioids in the international mail system.
    • Tackling Opioid and Substance Use Disorders in Medicare, Medicaid and Human Service Programs (Senate) – On April 19, 2018, the Senate Finance Committee held a hearing to identify policies to evaluate and improve the federal response to the opioid epidemic.
    • Curbing Opioid Abuse Among Medicare Part D Beneficiaries (House of Representatives) – On February 28, 2018, the House Ways & Means Committee sent a letter to CMS Administrator Verma to solicit information about CMS’ efforts given a recent HHS OIG report finding that one-third of Medicare Part D beneficiaries filled an opioid prescription, and nearly 90,000 beneficiaries received extreme amounts of opioids that year.

Enforcement Activity

  • Department of Justice (DOJ) Prescription Interdiction & Litigation (PIL) Task Force. On February 27, 2018, Attorney General Jeff Sessions announced the creation of the Prescription Interdiction & Litigation (PIL) Task Force to “target[] opioid manufacturers and distributors who have contributed to [the opioid] epidemic.” The Task Force will use the criminal and civil penalties currently at its disposal, coordinate law enforcement activities with HHS, and explore potential legislative and regulatory changes to existing laws. It will also examine existing state and local government lawsuits against opioid manufacturers “to determine of [the DOJ] can be of assistance. The Task Force is part of the Trump Administration’s “Stop Opioid Abuse” Initiative. Sessions also announced that Mary Daly – a former U.S. Attorney in the Eastern District of New York and the Eastern District of Virginia – was hired to spearhead the anti-opioid efforts as the new Director of Opioid Enforcement and Prevention Efforts. The DOJ press release is available here.
  • DOJ Joint Criminal Opioid Darknet Enforcement (J-CODE) Team. On January 29, 2018, Sessions announced the creation of the DOJ’s Joint Criminal Opioid Darknet Enforcement (J-CODE) team, a new resource available to law enforcement to help curb online opioid trafficking. J-CODE is also part of the Trump Administration’s “Stop Opioid Abuse” Initiative.
  • Curbing Opioid Use in Medicare Part D and Medicaid. In his January 17, 2018 testimony before the Subcommittee on Oversight of the House Ways & Means Committee, HHS-OIG Deputy Inspector General for Investigations Gary Cantrell identified several initiatives designed to curb and address the opioid epidemic under Medicare Part D and Medicaid:

    • Restrict certain beneficiaries to a limited number of pharmacies or prescribers;
    • Expand drug utilization review programs to include additional drugs susceptible to fraud, waste, and abuse, including HIV and antipsychotic medications that are often used in combination with opioids;
    • Require plan sponsors to report to CMS all potential fraud and abuse and any corrective actions they take in response; and
    • Improve Medicaid data by establishing a deadline for when CMS’s national Medicaid database (the Transformed Medicaid Statistical Information System (T-MSIS)) will be available for multistate program integrity efforts.
    • Cantrell’s testimony follows on the heels of a July 2017 Data Brief, in which HHS-OIG expressed concerns about the “extreme use and questionable prescribing” of opioids in Medicare Part D.” Likewise, in 2016, HHS-OIG announced that one of its top management challenges was curbing the abuse and misuse of controlled and non-controlled drugs in Medicare Part D and in Medicaid.
  • Government Accountability Office (GAO) Calls for Increased Oversight Of Medicare Part D Prescription Opioids. In response to the opioid crisis, GAO Health Care Director Elizabeth H. Curda testified before the Subcommittee on Oversight of the House Ways & Means Committee, discussing the GAO’s findings and recommendations regarding CMS oversight of prescription opioids. The GAO’s accompanying report (released in October 2017) further detailed the recommended steps necessary to combat the opioid crisis, including increased data collection by CMS, analyses, and reporting requirements for plan sponsors.
  • DEA Restrictions on Manufacture of Intravenous (IV) Forms of Opioids Create Critical Supply Shortages. On November 8, 2017, the Drug Enforcement Agency (DEA) released a final order mandating a 20% reduction in the amount of opiate and opioid medications that can be manufactured in 2018. The order established manufacture restrictions (called “aggregate production quotas” (APQs)) on the IV form of opioid painkillers – including fentanyl, ketamine, and hydromorphone – in an effort to curb the volume of such drugs entering the market. Although the APQs were instituted to restrict the presence of opioid pills in the marketplace, providers (especially hospitals) are now experiencing a critical shortage of liquid opiates necessary for general surgery anesthesia, sedation, trauma treatment, and chronic pain management. Over two-thirds of health care workers surveyed by the Institute for Safe Medication Practices reported that they were unable to give patients the recommended treatments in light of the shortages. Because the DEA’s APQs are done quarterly, the current 20% reduction is scheduled to last until at least mid-April 2018.

We will continue to stay abreast of these fast-moving developments in the government’s effort to combat the opioid crisis.

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Photo of Payal Nanavati Payal Nanavati

Payal Nanavati is a counsel in the firm’s Washington, D.C. office, where she practices in the Health Care and Government Contracts groups. Payal’s government contracts practice focuses on defending companies under the False Claims Act, litigation before the Armed Services Board of Contract…

Payal Nanavati is a counsel in the firm’s Washington, D.C. office, where she practices in the Health Care and Government Contracts groups. Payal’s government contracts practice focuses on defending companies under the False Claims Act, litigation before the Armed Services Board of Contract Appeals, and bid protests before the Government Accountability Office. Her health care practice includes working with providers and plans seeking to comply with laws and regulations applicable to digital health initiatives, fraud and abuse, and mental health parity.

Payal is a co-host of Crowell & Moring’s health care podcast, Payers, Providers, and Patients – Oh My!, which covers legal and regulatory issues that affect health care entities’ in-house counsel, executives, and investors.

Payal’s recent pro bono representations include clients seeking asylum or legal immigration status under the Violence Against Women Act and successfully defending against eviction attempts by a client’s landlord. During law school, Payal served as a staff member for the Journal of Gender and Law.

Photo of Jodi G. Daniel Jodi G. Daniel

Jodi Daniel is a partner in Crowell & Moring’s Health Care Group and a member of the group’s Steering Committee. She is also a director at C&M International (CMI), an international policy and regulatory affairs consulting firm affiliated with Crowell & Moring. She…

Jodi Daniel is a partner in Crowell & Moring’s Health Care Group and a member of the group’s Steering Committee. She is also a director at C&M International (CMI), an international policy and regulatory affairs consulting firm affiliated with Crowell & Moring. She leads the firm’s Digital Health Practice and provides strategic, legal, and policy advice to all types of health care and technology clients navigating the dynamic regulatory environment related to technology in the health care sector to help them achieve their business goals. Jodi is a contributor to the Uniform Law Commission Telehealth Committee, which drafts and proposes uniform state laws related to telehealth services, including the definition of telehealth, formation of the doctor-patient relationship via telehealth, creation of a registry for out-of-state physicians, insurance coverage and payment parity, and administrative barriers to entity formation.

Traci Vitek