Introduction

At this point in the opioid epidemic, most people are familiar with the staggering number

of individuals who have encountered or been affected by opioid use. In 2019, 1.9 million people

in the US had opioid use disorder (OUD), and 10.1 million people used opioids. 1 Both those

struggling with OUD and those using opioids

can be at risk for harmful consequences like

overdose. Further, millions more struggle with

substance use disorder (SUD).2 The need for

treatment of OUD and SUD is clear.

The goal of Beyond Opioids is not just

to inform the public and legal community about

the devastating harms that overdose crises have

caused, but to inform about the solutions and

the role we can all play to stop this crisis within

our state, especially as attorneys, judges, and

members of the legal community.

1
See Substance Abuse and Mental Health Services Administration. (2020). Key substance use and mental health
indicators in the United States. Results from the 2019 National Survey on Drug Use and Health. Available at
https://www.samhsa.gov/data/sites/default/files/reports/rpt29393/2019NSDUHFFRPDFWHTML/2019NSDUHFFR
1PDFW090120.pdf.
2
Substance Abuse and Mental Health Services Administration. Oct. 26, 2021. SAMHSA releases 2020 National
Survey on Drug Use and Health. https://www.samhsa.gov/newsroom/press-announcements/202110260320.

1
 I. Understanding Medication-Assisted Treatment (MAT) and its Relationship to

the Courtroom

a. What is Medication-Assisted Treatment (MAT) or Medications for Opioid

Use Disorder (MOUD)?

MAT, medication-assistant treatment, is the use of medications in combination with

counseling and behavioral therapies to provide a “whole-patient” approach to the treatment of

SUD.3 MAT features a medication treatment plan called MOUD, or medications for opioid use

disorder, which reinforces the idea that the medications do not just “assist” treatment. 4 The

medications used in MOUD programs are approved by the Food and Drug Administration (FDA)

and are clinically driven and tailored to meet each patient’s needs.5

Not only has research shown that a combination of medication and therapy can

successfully treat SUD, but MOUD can also be used to prevent or reduce opioid overdose. 6

MOUD is primarily used for the treatment of addiction to opioids such as heroin and prescription

pain relievers that contain opiates.7 The main goals of MOUD, in addition to full recovery, are to

improve patient survival, increase retention in treatment, decrease illicit opiate use and other

criminal activity among people with OUD, increase patients’ ability to gain and maintain

employment, and improve birth outcomes among women who have OUD and are pregnant.8

3 Medication-Assisted Treatment (MAT), SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION
(SAMHSA) https://www.samhsa.gov/medication-assisted-
treatment#:~:text=Medication%2Dassisted%20treatment%20(MAT)%20is%20the%20use%20of%20medications,tr
eatment%20of%20substance%20use%20disorders (last visited August 1, 2022).
4
Medication First. About Medication First (2018), https://www.medicationfirst.org/about.
5
SAMHSA, supra note 3.
6
Ibid.
7
Ibid.
8
Ibid.

2
Additionally, research has shown that MOUD can contribute to lowering a person’s risk of

contracting HIV or Hepatitis C by reducing the potential for relapse. 9

b. What medications are used and how do they work?

The medications used to treat SUD have been approved by the FDA and are evidence-

based treatment options.

For Alcohol Use Disorder, the most common medications used are acamprosate,

disulfiram, and naltrexone.10 Often, these medications work by blocking opiate receptors

involved in the rewarding effects of drinking and craving alcohol. 11 A doctor would assess a

patient’s current use of alcohol and determine which medication would work best as some are

better for dealing with withdrawal versus some that work better to suppress cravings, for

example.12

For OUD, buprenorphine, methadone, and naltrexone are among the most common

medications used.13 These medicines work as both agonists, activating opioid receptors in the

brain, and antagonists, blocking opioids by attaching to the opioid receptors without activating

them.14 Patients encountering the legal or criminal justice system are often encouraged to use

Naltrexone, an antagonist, which can have some major downsides. For example, a person who is

physically dependent on opioids needs to be abstinent from heroin for 5-7 days, or abstinent from

methadone for 7-10 days in order to begin Naltrexone treatment. 15 Further, patients taking

9
SAMHSA, supra note 1.
10
Ibid.
11
See National Institute on Alcohol Abuse and Alcoholism and SAMHSA, Medication for the Treatment of Alcohol
Use Disorder: A Brief Guide (2015), available at https://store.samhsa.gov/sites/default/files/d7/priv/sma15-4907.pdf
12
Ibid.
13
SAMHSA, supra note 1.
14
Indian Health Service. Pharmacological Treatment. https://www.ihs.gov/opioids/recovery/pharmatreatment/.
15
Providers Clinical Support System. Guide for Families: Medications for Opioid Use Disorder. June 10, 2021.
https://pcssnow.org/resource/guide-for-families-medications-for-opioid-use-disorder/.

3
naltrexone have lost their tolerance to opioids, and will be at risk of accidental overdose if they

drop out of treatment and stop taking naltrexone. 16 Therefore, a patient should assess risks and

benefits of each medication with their doctor or prescriber.

In general, these medications are used to treat opioid use disorders to short-acting opioids

such as heroin, morphine, and codeine, as well as semi-synthetic opioids like oxycodone and

hydrocodone.17 The medications can be used for short

periods of time or for the rest of a patient’s life,

depending on their treatment needs.18 Naloxone (brand

name – Narcan) is used to prevent opioid overdose by

reversing the toxic effects of the overdose. 19 Naloxone

has saved the lives of thousands of people.20 The World

Health Organization even considers it one of a number

of medications considered essential to a functioning

healthcare system. 21

c. Gold Standard in OUD Care

MOUD is considered the “gold standard” in OUD care because of the overwhelming

evidence of its effectiveness.22 First, MOUD cuts the mortality rate from any cause related to

16
Ibid.
17 SAMHSA, supra note 1.
18
Ibid.
19
Ibid.
20
Naloxone for Opioid Overdose: Life-Saving Science, NATIONAL INSTITUTE ON DRUG ABUSE (June 2021),
https://nida.nih.gov/publications/naloxone-opioid-overdose-life-saving-science.
21
SAMHSA, supra note 1.
22
See Carli Suba et. al, Medication-Assisted Treatment for Opioid Use Disorder: The Gold Standard (May 16,
2018), available at https://healthlaw.org/wp-content/uploads/2018/05/MAT-IB-Final-51718-1.pdf.

4
substance use by half or more for patients with SUD.23 Second, individuals who receive MOUD

are half as likely to suffer relapse than those who receive other types of therapy. 24 Last,

methadone and buprenorphine are highly cost-effective and much more effective than counseling

and behavioral therapy without medication.25 In general, one dollar spent on SUD prevention and

treatment leads to between two and ten dollars of savings

in health care, criminal justice, and educational costs.26

The former Secretary of the Department of Health and

Human Services, Alex Azar, stated that treating OUD

without MOUD is “like trying to treat an infection

without antibiotics.”27 Ultimately, misunderstandings

around OUD and SUD inhibit effective treatment. If

OUD and SUD are not understood as a medical disorder,

but rather viewed as choices one has complete autonomy over, access to effective treatments like

MOUD will continue to be limited. The Surgeon General identified OUD as a chronic brain

disease that results from changes in neural structure and function that are caused over time by

repeated use of prescription opioids, heroin, or other illicit opioids.28 Greater understanding of

these conditions has resulted in more effective treatments. It simply does not make sense to

demand someone to stop using substances without any treatment as this is essentially like telling

a person who has type-II diabetes to not take insulin. In some cases, those with type-II diabetes

23
Ibid, 2.
24
Ibid.
25
Ibid, 3.
26
Ibid.
27
Ibid, 2.
28
Martin Rosenzweig, Treating Opioid Use Disorder for What It Is: A Chronic Medical Condition (Oct. 16, 2017),
https://www.naco.org/blog/treating-opioid-use-disorder-what-it-chronic-medical-condition.

5
may no longer need insulin after making some lifestyle changes. In other case, some may need to

take insulin for the rest of their lives.

Imagine if there was a drug that could cut the all-cause mortality rate among cancer

patients as MOUD does for SUD/OUD patients – it

would be a momentous discovery. Yet, moralistic

stigma surrounding these drugs inhibits us from

understanding MOUD for what it is.

In addition to MOUD, community-based

recovery support like a Peer Recovery Support system

can be extremely beneficial in OUD or SUD recovery.29

Peer support workers are people who have been

successful in the recovery process and can help others experiencing similar situations. 30 These

peers help people stay engaged in the recovery process and have been shown to reduce the

likelihood of relapse by effectively extending the reach of treatment beyond the clinical setting

into the everyday environment.31 The peer support role includes many activities such as

• Advocating for people in recovery

• Sharing resources and building skills

• Building community and relationships

• Leading recovery groups

• Mentoring and setting goals32

29
Linda M. Richmond, Surgeon General’s Report on Opioids Emphasizes ‘Gold Standard’ Treatment (Oct. 12,
2018), https://psychnews.psychiatryonline.org/doi/full/10.1176/appi.pn.2018.10b12.
30
Who Are Peer Workers?, SAMHSA (April 26, 2022), https://www.samhsa.gov/brss-tacs/recovery-support-
tools/peers.
31
Ibid.
32
Ibid.

6
 Peer recovery did not really exist in Arkansas before 2017.33 The United States

government awarded financial assistance to the states which supported the development of the

Arkansas Peer Model, started by a small group of recovering individuals who envisioned change

in the behavioral health system. 34 While the amount of peer support staff has grown since the

program began, many more peer recovery specialists are needed.

A Peer Support Specialist is allowed to provide Peer Support under the Outpatient

Behavioral Health Services (OBHS) program reimbursed by Arkansas Medicaid. 35 OBHS

requires strict compliance to Peer Support Specialists (PSS) requirements such as supervision by

a Mental Health Professional and completion of annual training related to PSS functions. 36 These

requirements may create a barrier to providing individuals with SUD PSS because of a lack of

funding. The more judges and attorneys know about these issues, they can better advocate for a

system that is properly funded and provides the gold standard of care.

There is a current Arkansas Peer Specialist Program (APSP) that includes an innovative

three-tiered credentialing process that allows an individual to progress through the core,

advanced, and supervision levels of The Arkansas Model. 37 The three levels within this model

are (1) Arkansas Core Peer Recovery Specialist (PR); (2) Arkansas Advanced Peer Recovery

Specialist (APR); (3) Arkansas Peer Recovery Peer Supervision (PRPS).38 The first level

requires the individual to have a GED or have graduated from high school, have a minimum of

two years of abstinence-based recovery from lived experience with substance use disorders

33
Ibid.
34
Ibid.
35
See Arkansas Department of Human Services, Peer Support Specialist, Family Support Partner, and Youth
Support Specialist Standards (Sept. 2019). https://humanservices.arkansas.gov/wp-content/uploads/Peer-Support-
Youth-Support-Family-Support-Standards-with-application-09.06.19.pdf.
36
Ibid.
37
Arkansas Peer Specialist Program, NAADAC https://www.naadac.org/arkansas-peer-specialist-program (last
visited Aug. 1, 2022).
38
Ibid.

7
and/or mental health disorders, and have not committed a sexual offense or murder or have any

active warrants.39 The individual must then apply and if approved, become a Peer in Training

(PIT) which requires a certain number of experience and education training hours.40 This training

is extensive and thorough to maintain a high quality of care.

d. MAT/MOUD is not substitution of one drug for another.

The key thing to understand about medications like methadone and buprenorphine

(Suboxone) is that although they are themselves opioids, they are used in a medical setting and

when taken as prescribed, they do not produce the euphoric high that opioids do when they are

misused.41 Patients can be physiologically dependent on these drugs, but are not addicted. 42 This

means that while a patient may have physical cravings and consequences of not taking

medications such as Methadone or Suboxone, they are not addicted in the sense that their usage

is out of control and the substance is controlling their priorities, or meet the Diagnostic and

Statistical Manual of Mental Disorders (DSM) criteria for SUD/OUD.43 Therefore, these

medications should be thought of as any other medicine that a patient relies on to maintain health

and well-being.

e. What about diversion?

As with any prescription drug, there is a risk that the medication will be misused or

diverted. However, strong consensus among researchers is that most people use diverted

buprenorphine primarily for its intended purpose – for its therapeutic, rather than euphoric,

39
Ibid.
40
Ibid.
41
German Lopez, There’s a highly successful treatment for opioid addiction. But stigma is holding it back, VOX
NEWS (Nov. 15, 2017), https://www.vox.com/science-and-health/2017/7/20/15937896/medication-assisted-
treatment-methadone-buprenorphine-naltrexone.
42
Changing the Narrative – “Trading one addiction for another”, HEALTH IN JUSTICE ACTION LAB
(NORTHEASTERN UNIVERSITY SCHOOL OF LAW) (2022), https://www.changingthenarrative.news/medication-oud.
43
Is Suboxone really “trading one addiction for another”? ROGERS BEHAVIORAL HEALTH (Sept. 27, 2018)
https://rogersbh.org/about-us/newsroom/blog/suboxone-really-trading-one-addiction-another.

8
effects.44 Another study showed that a significant percentage of people who use diverted

buprenorphine would rather be acquiring it legally, in

treatment with a prescription.45 Further, barriers to

treatment play a greater role in determining which

MOUD a patient receives rather than which

medication would actually be best for them. This

paradox is extremely important to understand in the

treatment community.

Statistics show that methadone and buprenorphine together make up just 15 percent of

diversion reports nationally, while oxycodone and hydrocodone account for two-thirds. Further,

buprenorphine related emergency room visits are far below those for other opioid products.46

Diving further into the statistics, the most common reasons for illicit buprenorphine use

were consistent with therapeutic use –

• 79% of illicit use was to prevent withdrawal.

• 67% of illicit use was to maintain abstinence.

• 53% of illicit use was to self-wean off drugs.

The following comments among respondents in a diversion study reveal motivations for

use of diverted buprenorphine –

• “It’s difficult to find a doc that is taking patients. Or have to wait a year for a new

patient appointment.”

• “Costly to see a doctor who would prescribe it even with insurance.”

44
Mark Mravic, A Question of Growing Importance: What is MAT Diversion? TREATMENT MAGAZINE (May 26,
2021), https://treatmentmagazine.com/a-question-of-growing-importance-what-is-mat-diversion/.
45
Ibid.
46
Ibid.

9
 • “Hard to get into program, long waiting lists.”

• “It usually comes down to money [since] some doctors are cash only to get into their

Suboxone program”47

For these reasons, denying use of MOUD because of the risk of diversion causes more

harm than good. Ultimately, denying medications to patients with opioid use disorder is

dangerous. Research consistently finds that medication outperforms abstinence-only treatments

on a variety of metrics, such as all-cause mortality and treatment retention. 48

f. Transportation Barriers

Many clinicians who treat patients with SUD cited transportation as one of the most

significant barriers to treatment. This is particularly true for patients living in rural areas where

the closest treatment clinics are almost an hour away.49 This problem is apparent in Arkansas,

where majority of our counties are considered rural,

coupled with a very limited number of clinics that offer

MOUD. It can be essentially impossible to make it to

appointments at these clinics if one does not have a car or

a driver’s license. Transportation to a clinic costs a

patient significant time and money. For example, the

average amount spent on transportation for an individual

47
Ibid.
48
Medications to Treat Opioid Addiction Are Effective and Save Lives, But Barriers Prevent Broad Access and Use,
Says New Report, NATIONAL ACADEMICS (March 20, 2019),
https://www.nationalacademies.org/news/2019/03/medications-to-treat-opioid-addiction-are-effective-and-save-
lives-but-barriers-prevent-broad-access-and-use-says-new-report.
49
See Amanda M. Bunting et. al, Clinician identified barriers to treatment for individuals in Appalachia with opioid
use disorder following release from prison: a social ecological approach (Dec. 3, 2018), available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6278109/.

10
to access methadone in a rural county for the first month of treatment is $300. 50

Arkansas offers a Non-Emergency Transportation (NET) Program that can give a patient

a ride to and from doctor’s appointments or other covered Medicaid services.51 To be able to get

a ride from NET, an individual must be on Medicaid, try to find another ride first, and must have

no other way to get to the appointment. 52 While this resource can be helpful, it is not as

accessible as it may seem as patients must determine who their NET transportation broker is in

their region, call at least 48 hours before the appointment, and have a referral if needing to travel

outside of their region.53 This means that a patient must have reliable telephone or Internet

service to be able to facilitate a NET ride. If there are complications that come up and the ride

does not show up, the patient is left without a way to get to their appointment meaning they

might be missing something as critical as their once-a-month shot, which can have major side

effects and devastating consequences for their recovery. As previously mentioned, a patient on

naltrexone is at much higher risk of overdose after it is discontinued.54

A clinic has cited major issues with a specific NET broker which has caused many

patients to not receive their care. 55 Therefore, while NET is an ideal resource on paper, it may

not be functioning as efficiently or effectively as needed. The legal community can help improve

issues similar to this by first understanding the disconnect between the way a program was

intended to function versus how it is actually functioning. Then, attorneys can identify specific

50
Robert A. Kleinman. Comparison of Driving Times to Opioid Treatment Programs and Pharmacies in the US
(July 15, 2020). JAMA Psychiatry. https://jamanetwork.com/journals/jamapsychiatry/fullarticle/2768026.
51
Bunting, supra note 49.
52
NET (Non-Emergency Transportation), Arkansas Department of Human Services,
https://humanservices.arkansas.gov/divisions-shared-services/medical-services/healthcare-programs/net-non-
emergency-transportation/ (last visited Aug. 1, 2022).
53
Ibid.
54
Roxanne Saucier et. al. (2018). Review of Case Narratives from Fatal Overdoses Associated with Injectable
Naltrexone for Opioid Dependence. National Library of Medicine. https://pubmed.ncbi.nlm.nih.gov/29560596/.
55
Conversation with a clinician at Western Arkansas Counseling and Guidance, Inc. (July 11, 2022).

11
instances in which litigation may be necessary or resort to informing and encouraging the

legislature to rethink policy.

II. Misunderstanding and Misinformation Harming Arkansans

a. Relapse or Return to Use

Substance use disorder is a chronic condition and our treatment systems often do not

reflect this fact. Relapse occurs when a person stops maintaining his or her goal of reducing or

avoiding the use of alcohol or other drugs and returns to some level of use.56 Further, the term

“relapse” may even be influencing a misunderstanding of OUD/SUD as a disease.57 For

example, a person with diabetes who appears in the emergency room in glycemic crisis is not

told that she has relapsed, and this is what we are telling

people who are in the emergency room dealing with an

opioid overdose after being in recovery. 58 Recovering

from substance use disorder is an extensive process, and

the reality is that there will likely be times in which a

patient relapses.59 Relapse can occur due to a multitude of

factors such as ongoing emotional and psychological

issues, social or economic problems, or rejection by social support networks.60 It can take a

person five or six attempts before successfully maintaining change. 61 It is important to

understand that relapse is simply a feature of recovery. Relapse does not mean that a person has

failed and has lost their ability to meaningfully or productively function.

56
Relapse, ALCOHOL AND DRUG FOUNDATION, https://adf.org.au/reducing-risk/relapse/ (last visited Aug. 1, 2022).
57
Anne M. Fletcher. (Nov. 4, 2019). One More Time: Can we PLEASE Do Away with “Relapse?”.
https://rehabs.com/pro-talk/one-more-time-can-we-please-do-away-with-relapse/.
58
Ibid.
59
ALCOHOL AND DRUG FOUNDATION, supra note 16.
60
Ibid.
61
Ibid.

12
 There are many instances in which an individual may be required to be drug screened

within the legal system, whether it be for drug court, divorce, or child custody cases.62 Testing

positive for a substance for which an individual is currently in recovery can have debilitating

consequences including loss of custody of a child or being sent to jail or prison. These

consequences can be life-altering and can have a great chance of minimizing motivation or

ability to continue in recovery. While many desired results in the legal system may require

complete abstinence for valid reasons, judges and attorneys should reconsider measurements of

success when dealing with individuals recovering from

SUD. Further, with how contaminated the drug supply is

today, it is common for a person to not be aware of every

substance she is taking which can result in a positive test

for multiple substances. It is important to not just assume

someone is lying when they test positive for a substance

that they are denying they took. Clinicians working in

recovery services see individuals’ ups and downs as they

navigate one of the most challenging tasks of their lives.

One clinician stated that she wished the court system

would recognize and validate a patient showing up to her

treatment appointment even if relapse is occurring.63 The legal system fails to acknowledge the

accomplishment of showing up to treatment as a vital part of the recovery process. Therefore,

shifting our understanding of recovery and relapse could help keep a person struggling with SUD

on a productive path for longer while not unnecessarily limiting a person’s freedom or rights.

62
Ibid.
63 Conversation with a clinician at Western Arkansas Counseling and Guidance, Inc. (July 11, 2022).

13
 b. The Treatment Process

A harmful misunderstanding affecting the treatment and recovery process of those that

have encountered the legal system is that one approach will work for all. SUD recovery is a

deeply personal journey and different strategies work for different people. 64

Historically, the most common approach to SUD treatment has been abstinence, which

expects an individual to completely stop the use of any drugs.65 Opponents of abstinence-based

treatment point out that the rigidity of these programs can be harmful because a person may lose

access to support if she relapses or misses a meeting. 66 Further, in the age of fentanyl, a synthetic

opioid up to 50 times stronger than heroin, this approach is especially dangerous because people

become more likely to increase their use and overdose on fentanyl. 67

Another aspect of care is harm reduction, which focuses on educating people about safer

substance use when an individual is not ready to commit to abstinence. 68 Harm reduction is a

more individualized approach that meets a patient where she is. This can result in a higher

likelihood of sticking with treatment, ultimately permanently abstaining from drugs, and

significantly reducing risk of death or serious harm from overdose. 69 Regarding accountability

within harm reduction, there are practices that can be put into place to facilitate self-

accountability such as frequent check-ins by an attorney or ordered reports or appearances by a

judge.

c. Recognizing When You’re the Expert… and When You’re Not

64
Renee Fierro, When it Comes to Addiction, What is the Best Path to Recovery – Abstinence or Harm Reduction?
SUMMA HEALTH (Sept. 24, 2019),https://www.summahealth.org/flourish/entries/2019/09/harm-reduction-vs-
abstinence.
65
Ibid.
66
Ibid.
67
Centers for Disease Control and Prevention. (2022). Fentanyl Facts.
https://www.cdc.gov/stopoverdose/fentanyl/index.html.
68
FIERRO, supra note 64.
69
Ibid.

14
 A judge or attorney’s expertise is the law and legal procedures, and it is not realistic to

expect an attorney or judge to become an expert in SUD. However, this occupation is unique in

that a legal professional is required to immerse oneself in another person or entity’s distinct

circumstances to understand how the law relates to their needs. This demands extensive research

and diligent efforts to learn in areas where understanding is lacking. This sometimes involves

yielding to another professional’s expertise. A judge or attorney may have had so much exposure

to clients with SUD that they think they have full

understanding of the recovery process and can independently

determine the best route for the individual to take. However,

treatment is evolving through more extensive research and

practices can shift from that which the attorney or judge is

familiar. Therefore, yielding to treatment providers and

medical professionals for their expertise to treat patients is

critical. Their decisions along with the patient’s decisions are

what should drive the patient’s treatment program and an

attorney or judge should only concern themselves with the

treatment’s relationship to the legal issues at hand, without

suggesting an alternative medical or treatment route because it worked for a previous client or a

person they knew. Just as a medical professional is expected to respect an attorney or judge’s

expertise in the law, attorneys and judges must also respect the expertise of medical

professionals. It is always best to seek the opinion of a medical professional or treatment

provider when dealing with SUD in the legal system. Clients with SUD often need to work with

15
medical professionals to evaluate their medical needs and determine the best course of action in

their recovery.

III. How Arkansas’s Opioid Epidemic can be Fought in the Courtroom

a. Trauma-Informed/Focused Case Handling

The overwhelming conclusion of many recent studies examining the relationship between

SUD and trauma is that many people who have been exposed to traumatic experiences are at a

higher risk for developing SUD.70 Further research has shown that there is also a strong

relationship between adverse childhood experience, substance use, and poor mental health

outcomes, particularly Post Traumatic Stress Disorder (PTSD).71 This trauma can come from

experiences such as child abuse, criminal attack, disaster,

or war. The intention of using substances may be to cope

or “self-medicate” against memories or reminders of

horrific traumatic experiences, or could help keep

symptoms of PTSD, like insomnia and anxiety,

subdued.72 Many people struggling with SUD find

themselves in a viscous cycle in which exposure to

traumatic events produces increased substance use,

which can in turn, create new traumatic event experiences, leading to worse substance use. 73

Because consequences of untreated or unresolved trauma, SUD, or mental health issues

include situations in which individuals will encounter the legal system at some capacity, it is

70
Lamya Khoury et. al, Susbtance use, childhood traumatic experience, and Posttraumatic Stress Disorder in an
urban civilian population (Dec. 2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3051362/.
71
Ibid.
72
Ibid.
73
Ibid.

16
critical to incorporate trauma-informed practices within the court system. Being trauma-informed

in a courtroom does not mean that a judge or attorney is responsible for providing trauma care to

clients and it also does not mean that individuals will not face legal consequences in their

situations.

Substance Abuse and Mental Health Services Administration (SAMHSA) describes a

trauma-informed court as one in which “judges recognize the people appearing before them have

personally experienced acts of violence or other traumatic life events, and are also cognizant of

the stress of the courtroom environment impact on trauma survivors.”74 A judge or attorney

practicing within the courtroom can pay attention to how they are communicating with clients,

the procedures surround the court system, and the environment within the courtroom. 75 The

following are some examples trauma-informed approaches to common courtroom experiences:

• Communication: If an individual has been ordered to take a drug test and the test

comes back positive for an illicit substance, a judge might typically say something in

a scolding tone like, “Your drug screen is dirty.” A trauma survivor may interpret this

as the judge saying they are dirty and that something is wrong with them. Instead, a

judge could use language such as, “Your drug screen shows the presence of drugs.” 76

• Procedures: There might be an instance in which an attorney and judge need to

conduct a sidebar conversation. A trauma survivor might interpret this as suspicious

or might see it as her attorney betraying her which will likely cause shame and fear.

However, an attorney could use a trauma-informed approach in this situation and tell

74
Kate Anticoli, Approaching the Bench in Trauma Informed Courts, https://10e11.com/blog/trauma-informed-
courts/#:~:text=SAMHSA%20describes%20a%20trauma%2Dinformed,environment%20impact%20on%20trauma
%20survivors (last visited Aug. 1, 2022).
75
Ibid.
76
Ibid.

17
 her client exactly what is happening and why, assuring the client that she will be told

of any important information discussed about her or her case. 77

• Environment: Many court proceedings are public and this means that a trauma

survivor might have to recount intense and painful experiences in front of strangers

which could likely cause extreme fear and anxiety, especially in situations where an

individual is testifying against an abuser. A judge’s trauma-informed approach might

be to offer for an individual to approach the bench and conduct testimony in a tone

loud enough for only the necessary parties to hear. An attorney could request this

option or conduct any proceedings possible in the most private manner.78

These examples show that trauma-informed approaches in the courtroom are easily

attainable. Further, trauma-informed treatment can

make court time more efficient by better facilitating

the needs of the individual client. It is simply just

considering what kind of communication,

procedure, and environment would make a person

with trauma in their past more comfortable. 79

Trauma in the courtroom is prevalent, so it is best to

treat everyone in the courtroom as someone who has

experienced trauma. It is important to be transparent

with the clients, honor their autonomy and give

them some agency which can be empowering. One size does not fit all in terms of treating clients

77
Ibid.
78
Ibid.
79
Ibid.

18
a certain way in the legal system, so trauma-informed treatment can help a judge or attorney

remember to be patient and understanding of each individual.

b. Drug and Family Court

In the past twenty years, the amount of “problem-solving courts” or “specialty courts”

has grown exponentially across the country. 80 Programs such as mental health courts, domestic

violence courts, drug courts, and family courts, span a range of issues affecting millions of

Americans that overlap with the court system. 81 The goal of these specialty courts is to address

the root causes of justice system involvement through “specialized dockets, multidisciplinary

teams, and a non-adversarial approach.”82 Arkansas currently as a total of forty-nine adult drug

courts, sixteen juvenile drug courts, fourteen DWI courts, five HOPE & Swift courts, sixteen

veterans treatment courts, five alternative sentencing courts, two family treatment courts, and

two mental health courts.83 The number of drug courts is significantly higher than other specialty

courts. Drug courts are used uniquely for individuals with SUD or those that have some level of

drug use.

Drug courts could be improved to better serve the needs of those with SUD by adopting

evidence-based practices that are consistent with medical treatment standards. For example, drug

court professionals have an affirmative obligation to learn about current research findings related

to the safety and efficacy of MOUD.84 Further, these professionals should make reasonable

efforts to attain reliable expert consultation on the appropriate use of MOUD for their

80
See Raymond L. Billotte et. al, Challenges and Solutions to Implementing Problem-Solving Courts from the
Traditional Court Management Perspective, AMERICAN UNIVERSITY AND BUREAU OF JUSTICE ASSISTANCE (June
2008) https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/au_probsolvcourts.pdf.
81
Ibid.
82
Arkansas Judiciary, Specialty Courts, https://www.arcourts.gov/courts/circuit-courts/specialty-court-programs
(last visited Aug. 1, 2022).
83
Ibid.
84
State Justice Institute, Recommended Practices for Incorporating Medication for Opioid Use Disorders in Courts
– Webinar (Jan. 2022).

19
participants, which includes partnering with SUD treatment programs that offer regular access to

medical and psychiatric services.85 Drug courts block evidence-based SUD treatment practices if

they impose blanket prohibitions against the use of MOUD, prohibit the use of a particular

medication for OUD, or otherwise interfere with

clinical, medication decisions. There is no one-size-

fits-all approach to treating OUD, and decisions need to

be made by clinicians and patients.

SUD medications are grossly underutilized in

the criminal justice system. For example, MOUD

administered prior to and immediately after release

from jail or prison has been shown to significantly increase and incarcerated or formerly

incarcerated individual with OUD’s engagement in treatment, reduce illicit opiate use, reduce

rearrests, technical parole violations, and re-incarceration rates.86 Further, recently released

individuals have a significantly higher risk of overdose death. 87 Evidence supporting the

effectiveness of several SUD medications is incontrovertible, and there is no empirical

justification for denying them to drug court participants.88 It is imperative that courts use every

tool available to help save lives for those at risk of overdose.

Another specialty court directly related to SUD recovery is family treatment court. In

Arkansas, family treatment court is a juvenile or family court docket of which selected abuse,

85
Ibid.
86
Ibid.
87
Andrew Tayler et. al. (2022). Overdose Deaths and Jail Incarceration. Vera.
https://www.vera.org/publications/overdose-deaths-and-jail-
incarceration#:~:text=Substantial%20evidence%20shows%20that%20incarceration%20is%20associated%20with,in
creased%2C%20so%20too%20have%20rates%20of%20overdose%20death.
88
STATE JUSTICE INSTITUTE, supra note 84.

20
neglect, and dependency cases are identified where parental SUD is a primary factor. 89 The

objective is to “unify judges, attorneys, child protection services, and treatment personnel to

provide safe, nurturing, and permanent homes for children while simultaneously providing

parents the necessary support and services to become drug and alcohol abstinent.”90 While the

measure for stabilized recovery is related to an abstinence-based model in these courts, it could

be beneficial to explore alternative recovery models to determine what works best in promoting

long-term recovery. The Family Treatment Court’s Best Practices Standards state that

participants receive MAT for SUDs based on an objective determination by a qualified medical

provider.91 Further, the standards state that this court does not exclude individuals who are

prescribed or are considering MAT from entering, remaining in, or completing the court’s

program.92 However, it is less clear whether this policy is followed in practice. Dealing with

SUD in family treatment courts is a challenging task as there are more people affected by an

individual’s recovery process than there might be in a drug court. However, this makes it even

more important to ensure that this court is functioning properly and providing the best paths to

recovery.

The court has a responsibility to recognize the rights of the people before them in

specialty courts. For example, there was a voluntary resolution between the Department of

Health and Human Services (HHS) and the Office for Civil Rights (OCR) and the West Virginia

89
Arkansas Judiciary, Family Treatment Courts, https://www.arcourts.gov/courts/circuit-courts/specialty-court-
programs/family-treatment-
court#:~:text=Family%20drug%20court%20is%20a,abuse%20is%20a%20primary%20factor (last visited Aug. 1,
2022).
90
Ibid.
91
See Center for Children and Family Futures and National Association of Drug Court Professionals, Family
Treatment Court Best Practice Standards (2019), available at
https://www.arcourts.gov/sites/default/files/Family%20Treatment%20Court%20-
%20Best%20Practice%20Standards.pdf.
92
Ibid.

21
Department of Health and Human Resources Bureau for Children and Families (DHHR) in 2020

that stated West Virginia cannot bar foster parents or guardians because of MOUD.93 This

decision reflects how the law is catching up with a better understanding of SUD and its

treatment, which benefits both the court and the individuals before the court.

c. Housing

Although SUD affects individuals at all socio-economic levels, there is a correlation

between poverty and substance use as poverty increases stress, decreases self-esteem and social

support.94 Therefore, problems related to poverty such as homelessness can make it significantly

harder for an individual to recover from SUD. Stable

housing has been identified as a major issue for

patients among MOUD providers across Arkansas.95

Further, Arkansas has the fourth worst child and

family homelessness problem in the United States,

and many of the families involved with the child welfare system have a parent or guardian who

suffer from a serious mental illness or co-occurring mental illness and SUD.96 Because many

issues related to housing can cause an individual or family to have to appear before a court or

have some interaction with the legal system, the legal community must be informed of housing

issues in their communities.

93
See Voluntary Resolution Agreement between the U.S. Department of Health and Human Services Office for Civil
Rights (OCR) and the West Virginia Department of Health and Human Resources Bureau for Children and Families
(2020), available at https://www.hhs.gov/sites/default/files/ocr-agreement-with-wv-dhhr.pdf.
94
Action Association, Addiction and Poverty: Is There Really a Correlation?, NCCAA (Nov. 27, 2020)
https://www.nccaa.net/post/addiction-and-poverty-is-there-really-a-correlation.
95
Conversations with clinicians at Western Arkansas Guidance and Counseling and Compassionate Care Clinic
(July 2022).
96
AR Discretionary Funding Fiscal Year 2019, SAMHSA (2019) https://www.samhsa.gov/grants-awards-by-
state/AR/discretionary/2019/details.

22
 One cause of lack of housing is landlords’ resistance to lease to individuals experiencing

homelessness, especially if they have a history of SUD.97 This is most often because there is

great misunderstanding and stigma associated with SUD, especially when there are criminal

charges or convictions related to substance use. 98 Sometimes people are excluded from recovery

homes or homeless shelters just because they are on MOUD.99 Further, the reality is simply that

affordable housing is becoming more unattainable which has been caused by a range of factors

such as a housing shortage and underfunded programs.100 Millions of people are affected by

these issues and it is critical the legal community understands that many clients who encounter

the system are suffering because of environmental factors.

As understanding of housing issues expands, many attorneys and professionals across the

country are working to use the law to protect individuals that may be discriminated against

because of their SUD. For example, there was a Department of Justice (DOJ) settlement in early

2022 with a Colorado Residential work and housing program that excluded people based on their

SUD or use of MAT, finding that this exclusion was in violation of the American Disabilities

Act (ADA), Title III. 101 Additionally, there were multiple DOJ settlements with Skilled Nursing

Facilities that stated “non-suboxone” policies barring residents from using suboxone in their

recovery were facially discriminatory. 102 In Arkansas, people are being denied stable and

97
Beth Dedman and Grant Lancaster, Mental Illness and Drug Abuse Bar Homeless from Safe Housing, THE
ARKANSAS TRAVELER (Oct. 3, 2018), https://www.uatrav.com/news/article_996a25c6-c745-11e8-a650-
f3303eeff440.html.
98
Ibid.
99
Addiction and Mental Health Parity, LEGAL ACTION CENTER https://www.lac.org/work/priorities/building-health-
equity/addiction-and-mental-health-parity (last visited Aug. 1, 2022).
100
The Problem, NATIONAL LOW INCOME HOUSING COALITION https://nlihc.org/explore-issues/why-we-
care/problem (last visited Aug. 1, 2022).
101
Settlement Agreement Between the United States of America and Ready to Work, LLC Under the Americans With
Disabilities Act (2022), available at https://www.justice.gov/crt/case-document/file/1490111/download.
102
The United States Attorney’s Office District of Massachusetts, U.S. Attorney’s Office Settles Disability
Discrimination Allegations with Operator of Skilled Nursing Facilities (Dec. 29, 2020),
https://www.justice.gov/usao-ma/pr/us-attorney-s-office-settles-disability-discrimination-allegations-operator-
skilled-0.

23
affordable housing to meet their basic needs through practices finally being recognized as

discriminatory, and housing facilities may soon face consequences of continuing these actions if

they do not change their policies.

d. Employment

Possibly one of the most well-known areas in which those with SUD or those taking

MOUD are discriminated against is in employment. It is not uncommon for an employee to be

terminated after the employer discovers the employee receives MOUD, or even because the

employee is in recovery from SUD.103 This, again, stems from stigma and misunderstanding

about SUD and MOUD. However, a person in recovery from SUD whose treatment plan

includes MOUD can and does function at the same level and capacity of employees who do not

have SUD. Employment discrimination can be detrimental to an individual’s recovery as it robs

them of an opportunity to earn a living and have a productive outlet. In turn, the lack of purpose

and earning ability caused by this discrimination can easily drive a person out of recovery.

Lawyers and other professionals have acted to ensure the individual’s employment rights

are protected. For example, there are several employment cases and Equal Employment

Opportunity Commission settlements which have stated that there should be no automatic bars

on employment related to SUD recovery except for positions within Departments of

Transportation that require a Commercial Drivers’ License. 104 Therefore, the ADA protects a

person who is taking an opioid medication as directed in an MOUD program as the use of the

medication is legal, and you cannot be denied a job because of this, unless you cannot do the job

103
Kelly K. Dineen and Elizabeth Pendo, Substance Use Disorder Discrimination and the CARES Act: Using
Disability Law to Inform Part 2 Rulemaking, https://arizonastatelawjournal.org/2021/02/23/substance-use-disorder-
discrimination-and-the-cares-act-using-disability-law-to-inform-part-2-rulemaking/ (last visited Aug. 1, 2022).
104
Use of Codeine, Oxycodone, and Other Opioids: Information for Employees, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, https://www.eeoc.gov/laws/guidance/use-codeine-oxycodone-and-other-opioids-
information-employees (last visited Aug. 1, 2022).

24
safely and effectively.105 Additionally, there are some legal challenges at the forefront of

employment discrimination based on taking MOUD related to professional licensure. In March

2022, there was a DOJ Investigation of the Indiana State Board of Nursing in which notice was

given that the nursing assistance program’s requirement that nurses taper off methadone and

buprenorphine violated Title II of the ADA.106 Therefore, employers who are consistently

discriminating against those that are in recovery and specifically

those using MOUD, based on stigma and misunderstand, risk

violating a person’s rights under the ADA, and possibly the

Constitution as well.

e. Jails and Prisons

It is all too common for an incarcerated person with OUD

to be denied MOUD, as the criminal justice system fails to

recognize how this vital public health tool can and does curb the

deadly effects of the opioid epidemic.107 If MOUD is not outright denied to an incarcerated

person, there are several common loopholes in MOUD legislation and policies that keep people

from this essential element of their treatment. 108 For example, some programs require dosages of

MOUD be so low that they are clinically ineffective or sometimes the program only offers one or

two of the three FDA-approved medications which means that if the only one available does not

work for someone, they simply do not receive MOUD.109

105
Ibid.
106
Department of Justice – Office of Public Affairs, Justice Department Finds that Indiana State Nursing Board
Discriminates Against People with Opioid Use Disorder (March 25, 2022), https://www.justice.gov/opa/pr/justice-
department-finds-indiana-state-nursing-board-discriminates-against-people-opioid-use.
107
See Over-Jailed and Un-Treated, ACLU (2021), available at
https://www.aclu.org/sites/default/files/field_document/20210625-mat-prison_1.pdf.
108
Ibid.
109
Ibid.

25
 However, recent court cases 110 and legal challenges have confronted these issues as an

incarcerated individual’s Constitutional or ADA rights are likely being violated by these

practices. For example, in January 2021, the Department of Justice concluded that there was

reasonable cause to believe that the conditions at the Cumberland County Jail in New Jersey

violated the Eighth and Fourteenth Amendments of the Constitution after investigating practices

there.111 This violation resulted from failure to screen for or provide adequate mental health

treatment to inmates at risk of self-harm and suicide, including a heightened risk due to the jail’s

failure to provide MOUD where clinically prescribed.112 Further, there is a pending challenge

based on numerous courts’ restrictions of MOUD in Pennsylvania, and it is likely that these

kinds of challenges will continue to increase. The legal system is hopefully beginning to

recognize that an incarcerated individual’s rights cannot be denied simply because they are in jail

or prison.

f. Insurance

Many private insurance plans purport to cover MOUD. In reality, the medications may

simply not actually be covered, there are arbitrary time limits for SUD care, inadequate treatment

networks, or pre-authorizations are required before care is administered. 113 These issues become

a substantial barrier for those seeking treatment because they simply cannot afford MOUD.

The insurance system is complex, but there are some steps legal professionals can take

such as appealing coverage denials and filing complaints with government regulators. Further,

110
Sally Friedman and Rebekah Joab. (April 2022). Clint Mueck v. LaGrange Acquisitions, L.P.
https://www.lac.org/resource/clint-mueck-v-lagrange-acquisitions-l-p.
111
ACLU supra note 108.
112
Ibid.
113
Does Insurance Cover Treatment for Opioid Addiction?, HHS.GOV,
https://www.hhs.gov/opioids/treatment/insurance-coverage/index.html (last visited Aug. 1, 2022).

26
these decisions can be litigated if necessary and those in the legal community can advocate with

state insurance departments for enforcement of these policies that claim to cover MOUD.

g. Judges and attorneys can and should be part of the solution.

Those in the legal community are in a unique position to play a role in combatting the

devastating effects of the opioid epidemic. There are many ways attorneys can contribute their

knowledge and expertise to this problem. First, attorneys cannot be effective advocates if they

are not educated. Attorneys have numerous resources and the ability to learn about what the

current state of the opioid epidemic is and how it is evolving.

They can attend conferences, read articles, speak with clients,

and speak with peers to learn more about what the needs are

within this crisis. If there is something going on with a client

that an attorney does not fully understand, it is their

responsibility to do the necessary research to best fulfill their

role as the client’s representative.

The next way an attorney can help is to advocate.

This may seem basic as it is a necessary aspect of being an

attorney, but sometimes avenues of advocacy are overlooked when dealing with issues that can

involve great effort and challenge. There are many levels at which an attorney can advocate for

clients with SUD such as crafting legal arguments in their individual cases, communicating with

treatment providers, sending letters to insurance companies, and taking on pro bono cases.

Further, an attorney can file complaints. These complaints could be with various

government enforcement agencies such as the Department of Justice. This might be a good place

27
to start because of their recent investigations into issues relating to SUD and MAT. Complaints

can be effective while not taking up too much time out of a busy schedule.

The role of a judge is immensely important and critical to the function of our state’s legal

system. At any level, a judge’s decisions will affect not only the lives of the people in a case

before them, but the lives of people throughout her jurisdiction and community. A judge has a

duty to protect the rights of individuals before the court and promote fairness.

The Arkansas Judicial Code of Conduct states that a judge “shall perform duties of

judicial office, including administrative duties, without bias or prejudice.”114 Misinformation or

misunderstanding surrounding SUD can create bias or prejudice, even if a judge is not aware of

any conscious bias or prejudice. Therefore, a judge has a duty to examine her bias and thoughts

about those before her and make sure she is performing her judicial duties as impartially as

possible. This includes digging deeper into the circumstances of individuals before the court and

understanding all factors which influenced their situation. Further, the Judicial Code of Conduct

also requires that a judge should “be patient, dignified, and courteous to litigants, jurors,

witnesses, lawyers, court staff, court officials, and others.”115 This responsibility requires a judge

to facilitate proper handling of the court room by treating all those within it with dignity and

respect. Those struggling with SUD are people that deserve to be treated with dignity and respect

regardless of the stigma and misinformation surrounding their disease. As judges, it is essential

to recognize that these people have rights and these rights must be enforced.

114
Arkansas Judicial Code of Conduct Rule 2.3 (Amended Dec. 15, 2016), available at
https://www.jddc.arkansas.gov/wp-content/uploads/2020/05/Judicial_Code_of_Conduct.pdf.
115
Arkansas Judicial Code of Conduct Rule 2.8 (Amended Dec. 15, 2016), available at
https://www.jddc.arkansas.gov/wp-content/uploads/2020/05/Judicial_Code_of_Conduct.pdf.

28
 There are ample resources available for judges to

educate themselves on topics regarding SUD. This

includes attending conferences, speaking with colleagues,

and maybe even visiting an MOUD clinic to speak with

medical professionals. There is nothing to lose when

trying to educate yourself as much as possible.

Understanding a person’s situation more makes a judge

significantly better at their job.

Conclusion

While the opioid epidemic has destroyed countless lives and communities, there is hope

in that the understanding of the underlying disease is becoming more widespread to offer better

treatment and care for those suffering. MAT/MOUD faces harmful misunderstanding and stigma

which causes many people to be denied a gold standard of medical care. The legal community

has a responsibility to combat these negative consequences by understanding the role it plays in

contributing to the stigma and misunderstanding. Once this role is acknowledged, Arkansas’s

legal community can take proactive steps in advocacy to ultimately save lives of those struggling

with SUD.

29