The opioid crisis is a challenging problem as the dynamics between the supply and demand provide for the need of a multifaceted approach to finding solutions. You can review a primer on opioid supply and demand here.
James Madison spoke of there being two threats to liberty: abuse of liberty and abuse of power (tyranny). Unfortunately, patient liberty is threatened by “evil-doers” who abuse the system and “do-gooders” who abuse power. At the forefront of any solution should be protection of the patient’s liberty.
Because of the intricate nature of the opioid market, attacking the supply side without addressing the demand or only addressing one portion of the equation can lead to an expansion of a problem elsewhere. Much like when one squeezes one end of a balloon, the other end expands. Unlike a balloon where one pin can pop it, the opioid crisis will take a multi-pronged approach.
Supply of Legally Made Opioids
The supply side of the opioid crisis includes problems with both illicit and legitimate opioids. The legitimate or legal supply involves the production of FDA approved opioids by pharmaceutical companies that are transferred to a “middleman” supplier who supplies pharmacies and hospitals with opioids that are dispensed to patients after receiving a prescription or as part of hospital care.
Illicit opioids include heroin and now fentanyl, sufentanil, and their analogues on the streets. It also includes diverted legitimate opioids from prescription medicines being sold or used on the street.
Production, marketing, distribution, prescribing, using, and disposing of legitimate opioids has impacted this portion of the equation. Obviously, the production of long acting opioids like OxyContin that appear to have been marketed in an aggressive and deceptive manner per lawsuits has been of great concern. Discovery of these alleged practices has led the state of Tennessee to become involved in the lawsuit involving Purdue Pharma and has driven pharmaceutical companies to alter their formulations of long acting opioids, as well as their marketing techniques.
In my medical training, I don’t recall ever being “sold a bill of goods” when it comes to marketing of these opioids, but that’s not to say it didn’t happen. I recall doing an assignment on addiction amongst physicians when I was in medical school, and I’ve always treated opioids, regardless of their formulation, as potentially addictive.
The distributors or wholesalers are the middlemen between the pharmaceutical companies and the hospitals or pharmacies. They house the opioids and deliver them to the dispenser. Some of them have played a part in the opioid crisis by turning a blind eye to suspicious distribution of controlled substances. I spoke about this issue personally with the Tennessee Department of Health a couple of years ago. While there is a process in place for overseeing the distributors, I was not convinced of the tightness with which the process occurs. I looked to help address my concerns with legislation that also impacted physicians, pharmacies, clinics, and hospitals.
My bill, House Bill 2004, passed and became Public Chapter 675 in 2018. It helped provide a whistleblower hotline and provided whistleblower protections for individuals who in good faith report prescribing, distributing, or administering abuses by entities that prescribe, dispense, or handle opioids. Unscrupulous distributors, pill mills, pharmacies, doctors, nurse practitioners, or medical practices have prescribed or dispensed unnecessary opioids often in the name of profit. Employees, other physicians, pharmacists, or nurses who knew of or suspected the abuses felt powerless to report their suspicions due to blowback or potential lawsuits. The bill helped alleviate those concerns.
Obviously, over-prescribing of opioids has been of major focus of the opioid crisis, but the issue isn’t as simple as some may think. More pills equals more of a chance at developing tolerance, dependence, or addiction, but it, also, increases the amount of leftover pills and diversion of those pills to the street. There have been many different reasons behind a surge in prescribed opioids, but we have started to see those numbers on the down trend.
One can trace some of the concern back to prohibition of physicians having the ability to “call in” a prescription, particularly a refill. The concern was that it was too easy for a practitioner to prescribe opioids; therefore, if a patient really needed opioids, then they would physically go to the doctor’s office for any second prescription. Of course, when adding an additional burden on a prescriber and a patient, such as another office call, visit, and paperwork, prescribers just began increasing the numbers of pills prescribed on the initial prescription. Instead of receiving 15 pills, prescribers just upped the prescription to 30 and patients, often, would have numerous left over pills.
One solution Senator Haile and I passed was HB 2440 which is PC 1007. It allows for partial filling of an opioid prescription while allowing for prorated co-pay and cost sharing. Instead of a patient having to receive two 10 pill prescriptions with increased costs to the patients and providers, a patient can elect to take a single prescription of 20 pills and only receive 10 pills at a time. If they need the final 10, they can return to the pharmacy, but if not, they don’t need to worry about having pills available at their home for diversion. When the TN Together program sunsets, this process will be the standard in our state.
Speaking of TN Together, it was the opioid prescribing law that was passed in 2018. The goal was to decrease the number of opioids prescribed with the thought that by decreasing the numbers on the initial prescription, one decreases the risk of a patient from entering the addiction pipeline. Unfortunately, when it was first proposed, I saw two major problems. First, it treated every patient the same regardless of their size or weight. Secondly, it was significantly burdensome for patients and providers. The net result would be that legitimate patients would suffer.
Speaker Cameron Sexton and I spent weeks advocating for patients and working to amend and improve the legislation while keeping patients at the forefront. In the end, a very comprehensive law was passed that provided protections for patients while providing significant safeguards for patients. It wasn’t exactly as I wanted and we had to amend it further this year, but it will decrease opioids in the medicine cabinets while helping change the prescribing practices for providers.
Unfortunately, many providers, insurers, and corporations that operate pharmacies are using the law as a scapegoat to further infringe on patient’s needs. That problem is something that I am looking to address this session.
While there have been other measures, one last bill worth mentioning from 2018 was HB 1993 by Rep. Ron Gant. Though I voted for the bill in 2018, I did not co-sponsor it. I expressed reservations due to the timing of the legislation and an increased burden to providers that could have had negative consequences to patients. In the end, the enacting date on the bill was delayed and I voted for the bill. This year, we amended the bill to have the enacting date coincide with the new CMS requirements which was my original concern for patients and providers. House Bill 1993 will require electronic prescribing under certain circumstances in order to better track the prescribing of controlled substances. This will help cut down on doctor shopping by patients looking for multiple prescriptions.
Supply of Illicit Opioids
The supply of illicit opioids includes synthetic opioids and analogues, as well as heroin, but it, also, includes the illicit diversion of otherwise legally prescribed opioids. Though overprescribing of traditional opioids has led to increased risk of addiction and increased opportunity for diversion, the number one TBI tested opioid for diversion is buprenorphine. It is an agonist-antagonist opioid that is used frequently for drug abuse treatment. Unfortunately, drug treatment patients have been receiving these medications and selling them on the streets.
In 2018, I passed House Bill 2002 which became public chapter 674. It allows for long acting injectable or implantable buprenorphine in Tennessee for the treatment of opioid abuse. Understanding that opioid abuse relapse and diversion of oral forms of buprenorphine is high, allowing and promoting treatments that can last anywhere from one to several months will decrease the number of pills in circulation while improving recovery treatment compliance.
While tacking the diversion of otherwise legally prescribed opioids is of major concern, it is the trafficking of heroin, fentanyl, carfentanil, and their analogues that should be at the top of every legislator’s radar. Unfortunately, many legislators have only been focusing on the prescribing side of the opioid issue. Although opioid prescriptions have decreased in Tennessee, overdoses have continued to increase. It is the illicit side of the equation that needs attention.
Heroin is about five times stronger than morphine while fentanyl is 100, sufentanil is 1000, and carfentanil is 10,000 times as strong. While fentanyl, sufentanil, and carfentanil have legitimate medical and veterinary medical uses, their potency, in the wrong hands, can be addictive and deadly.
Drug traffickers are making fake opioid pills that many believe are everyday Lortab or Percocet but contain the more potent synthetic opioids or analogues instead. They are also mixing heroin with the synthetics or analogues. Why? Because they are more potent and can lead to quicker addiction. In certain statutes, they carry less of a penalty than heroin (C vs A or B felony) and one can transport millions of lethal doses in a suitcase as opposed to needing a truck or van.
While some of the illicit supply is being manufactured in the U.S., much of the supply is coming from China through our ports and through Mexico. It is at the federal level involving control of our borders and ports where a major impact can and must be made. And while the Tennessee General Assembly doesn’t enact laws to directly impact the confiscation of opioids at the borders or at ports of entry, we can and have enacted laws that can help.
It is important to note that opioids and other illicit drugs are distributed through extensive trafficking networks which include points of contact throughout our states and communities. If one understands that any policy that hinders or distracts federal authorities at the ports or borders, then the policy increases the ease of opioid trafficking. Additionally, if one understands that much of the trafficking is coming from Mexico, any policy that strengthens the networks by refusing to address illegal immigration also contributes to the problem.
The bottom line is that open border policies increase the ease of illicit opioid influx while sanctuary city policies strengthen contact points within the trafficking network. If you support either policy, you aren’t serious about the opioid crisis.
In Tennessee, we have outlawed sanctuary cities (Former Rep. Joe Carr) and in 2018 added punitive financial measures toward any municipality that violates the anti-sanctuary city law with House Bill 2315 (Rep. Jay Reedy). While these policies help, they certainly aren’t the complete solution.
As it currently stands, trafficking heroin, a Schedule 1 restrictive drug, carries either a Class A or B felony depending on the amount of product. Fentanyl, sufentanil, and carfentanil, all Schedule 2 drugs, carry a Class C felony charge for trafficking. Regardless of the medical uses of a drug, if one understands that Schedule 2 opioids can be manufactured illicitly, are more potent than heroin, and are easier to move large doses of product, then it stands to reason that the penalties for these drugs should be equivalent to heroin. Otherwise, drug traffickers have less of a deterrent to push these drugs.
For the past two years, I have tried to pass legislation that equalized these penalties. Despite my bill being supported by the TBI, the Sheriff’s Association, and the Chiefs of Police, the bill was not funded in either the Governor’s proposed budget or in supplemental budget proposals. Ironically, my bill received a $3.7 million fiscal note in 2018. I filed the exact same bill this year and receive a fiscal note of $11 million. The problem didn’t get three times as bad in a year, but it goes to show that the bill should have been passed when it had a much more reasonable cost. I will plan to review the viability of this bill and see about running it again.
Though my bill was not passed, the Haslam Administration passed House Bill 1832 which changed the schedules and penalties for illicitly made analogues. It was a step in the right direction that I supported, but it fell short of addressing fentanyl, sufentanil, and carfentanil.
Rep. Mary Littleton also carried and passed House Bill 2190 during the 110th General Assembly. It increased the penalty to a second degree murder for the killing of another by unlawful distribution or unlawful delivery or unlawful dispensation of fentanyl or carfentanil, when those substances alone, or in combination with any scheduled controlled substance, including controlled substance analogs, are the proximate cause of the death of the user. I also cosponsored this legislation and amended it to include carfentanil.
This year, the Lee Administration put forth and passed House Bill 201 which was similar to my bill House Bill 120. Instead of quantifying the weight by the amount of opioid, the weight was quantified by the total weight of the seized substance. So, if fentanyl was mixed with an inert substance and weight greater than 15 or 150 grams, then the felony penalties are increased. This bill was a step in the right direction, though 150 grams of pure carfentanil is enough to kill millions of people.
Think long and hard about that last sentence. Throughout the country, there have been fentanyl and carfentanil drug busts that contained from 8 to over 30 million lethal doses. In my opinion, anyone in possession or trafficking millions of lethal doses isn’t just looking to supply drugs and get people addicted. To me, they are committing an act of domestic terrorism. Even though we have passed several measures to crack down on illicit opioids, I am still not convinced that the issue has garnered the complete consideration needed to address this problem. I plan to introduce a bill that will add trafficking of significant lethal doses of opioids to our domestic terrorism statute.
As one can see, Tennessee has taken several steps to address the supply side of the opioid equation. Progress has been made in various aspects, but there is more that can be done. Stay tuned for part three on “The Supply and Demand of Opioids” where I will address the demand side of the equation.
Bryan Terry, MD (R-Murfreesboro) is the Chairman of the Tennessee House Health Committee. This is Part Two of a three part series on Opioids: Supply and Demand.