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By Taylor Knopf
As the number of drug overdoses in North Carolina and across the country continue to climb, state lawmakers rolled out a second piece of legislation aimed at curbing the flow of prescription opioids into the illegal drug market.
The Heroin and Opioid Prevention and Enforcement (HOPE) Act aims to give law enforcement more tools to stop the diversion of prescription pills by allowing expanded access to the Controlled Substance Reporting System, which tracks the identifying information of people who are prescribed opioids.
The HOPE Act also makes it a class G felony for a first responder or home health worker to steal a patient’s medication, on par with robbery. And it would create a class E felony for any health care provider to steal a patient’s medication by diluting it or replacing it with a drug other than the one the patients were prescribed. Other class E felonies include child abuse and assault with a deadly weapon.
“As sad as it is, we have some bad actors in the medical field who have by their deeds fueled this crisis,” said Rep. Greg Murphy (R-Greenville) during the press rollout of the bill. “It is tragic that we have to put this into legislation … These activities are rare, but we have to seal every door and stem every breach that allows this crisis to continue.”
Additionally, the bill clarifies the laws regarding fentanyl, a drug that is typically used in cases such as breakthrough cancer pain or end of life care. Heroin and other drugs laced with fentanyl and other synthetic fentanyl have caused much of the increase in opioid-related deaths.
The bill comes with the promise of $10 million for community-based addiction treatment and funds for more naloxone for law enforcement and the state’s drug-takeback program. This year’s budget passed last week and these items were not included. Lawmakers say the money is designated for the 2019-20 budget.
State legislators and Attorney General Josh Stein introduced the HOPE Act last week, which passed through the House Health Committee on Wednesday. It’s seen as part two of the STOP Act, the key piece of opioid legislation passed last year limiting the number of prescription painkillers that can be given for acute pain.
“Where the STOP Act focused on prescriptions going from doctor to patient, the HOPE Act is about stemming the flow of lawful pharmaceuticals into the illegal drug trade,” Stein said in a press conference at the General Assembly last week. “The HOPE Act will give law enforcement more tools to stop the spread of these deadly and addictive drugs in our community.”
And we can expect there will be a “third chapter” in the string of opioids legislation next session, said bill co-sponsor Rep. Craig Horn (R-Weddington) during Wednesday’s House Health Committee.
As Horn told committee members that he knew of no opposition to the HOPE Act, members of the public raised their hands. Horn then clarified that no lawmakers opposed the bill.
Law enforcement access to the CSRS
One aspect of the bill that raised concerns of a number of advocacy groups was giving law enforcement expanded access to the Controlled Substance Reporting System.
“What I see is they tried to put as many protections in as possible, training, policies, to get permission from SBI (State Bureau of Investigation) and penalties for misuse,” said Donald McDonald, executive director of Addiction Professionals of North Carolina. “All that is in there, I just don’t understand why we are going in that direction anyway.”
But that was never the intention of the CSRS when it was established in 2005, McDonald said. The idea behind the system was always access, but now lawmakers want to broaden that access.
“The original intent was to primarily identify people with problems and refer to treatment and additionally to stop diversion for illegal use,” McDonald said.
The APNC alerted supporters of the HOPE Act and its concerns in its newsletter “The Empowered Advocate” earlier last week, saying “that allowing local law enforcement access to CSRS data presents a potential threat to civil liberties not outweighed by any possible benefit to North Carolinians, especially now that the largest threat to public safety and health is illicit heroin and fentanyl.”
The N.C. Substance Use Disorder Federation sent a similar call to action letter to its members saying, “It is unfortunate that the General Assembly chose to couch $10M in life-saving addiction treatment and recovery support funding in a bill also including provisions that promote government overreach into the privacy of patients and potentially threaten the civil liberties of North Carolinians,” the email reads.
“The bill’s characterization of people with substance use disorders as ‘abusers’ reinforces the very stigma that makes treatment and recovery more difficult to access. The HOPE Act represents a backwards culture shift away from treating substance use disorder as a disease and toward criminalizing illness.”
Laura Brewer, spokeswoman for the Attorney General’s office, noted that federal and state law enforcement personnel who investigate the diversion of prescriptions drugs to illegal channels already have access to the CSRS.
“In that context we have developed a proposal to provide limited access to local diversion investigators in a manner that aggressively safeguards the security and confidentiality of the data,” she said.
Safeguards Brewer identified include mandatory training and certification of local “certified diversion investigators” and their supervisors which covers appropriate use of the CSRS, provisions of the federal patient confidentiality (HIPAA) law and proper handling of confidential data.
Brewer noted that there will be a new felony offense for any law enforcement officer who misuses CSRS data. She said currently there is only the possibility of a civil penalty. Additionally, CSRS requests are limited to “individuals who are already the subject of a bona fide drug investigation,” Brewer said.
High Point Police Chief Kenneth Shultz talked about the need to see CSRS data in real time during the press conference last week.
“We have gangs that come down throughout the East Coast and hit pharmacies with fraudulent prescriptions,” he said. “Opioids sell for a lot of money on the streets.”
“They’re (the gangs) coming down, and unless we can act in real time, they push through and are getting the drugs and leaving the area and all we have is the wake of destruction in their paths,” Shultz said.
‘Death by Distribution’
When the HOPE Act was rolled out last week, it included a new felony charge called “death by distribution of a dangerous drug.” Essentially, an individual could be charged with murder if they sold drugs to someone who overdosed and died.
There was a lot of pushback against this from advocacy groups including Addiction Professionals of NC, the NC SUD Federation and the N.C. Harm Reduction Coalition.
The new refrain from Stein and Gov. Roy Cooper had been “we cannot arrest our way of this opioids crisis.” But advocates felt that this new sentencing piece did just the opposite.
On Wednesday, lawmakers eliminated the “death by distribution” charge from the HOPE Act.
“We found some significant difficulties with that,” Horn said. “It’s been pulled out of this bill.”