‘Kentucky shouldn’t wait.’ What the state is doing to address the opioid epidemic

With the second highest overdose death rate in the United States, some Kentucky lawmakers are calling attention to what they feel is a lack of support for addressing mental health issues and alternatives to incarceration to combat substance use disorder.

In March 2021, the state General Assembly and Gov. Andy Beshear’s administration sought outside help from the Pew Charitable Trusts, an independent non-profit, non-governmental organization, on changes the state needs to address the opioid crisis by supporting new laws and programs that address the issues.

Where Kentucky falls short in handling opioid use disorder

Pew Charitable Trusts identified ways Kentucky could resolve shortcomings in its efforts to fight substance use disorder: Eliminating barriers to medicine to treat opioid use disorder in community-based treatment, expanding access to treatment for people who are pregnant or parenting and expanding access for people in rural areas.

The organization also recommended that Kentucky expand access to prevention and treatment recovery services and create a robust diversion program.

Pew made the recommendations after assessing the state’s substance use treatment programs and policies by meeting with 100 stakeholders throughout health care, government and community organizations. In addition, they analyzed federal and state data, and reviewed the current legal landscape, according to a Pew Kentucky memo provided to government officials.

The organization recommended 12 options for Kentucky to consider when addressing opioid use disorder. One option was for the General Assembly to fund medication for opioid use disorder pilots in rural and urban jails. The money would help provide medication to those in need in the jails, maintenance during their jail stay and connection to a community-based provider once they’re released.

Another suggestion was to consider a court-required clinical assessment for substance use disorder and a referral process for individuals. The hope was that this assessment would shift people into treatment rather than placing them in jail, according to the memo.

How a recently-signed KY law can help combat substance use

State Sen. Whitney Westerfield (R-Crofton), chairman of the Kentucky Senate Judiciary Committee, took recommendations to heart in the 2022 session, when he sponsored Senate Bill 90 – establishing a conditional dismissal program throughout the state.

The bill passed with near-unanimous support, and Beshear signed it into law April 20.

“Everyone is touched by this. All parts of Kentucky, and all parties are affected by this,” he said. “There is a fertile ground for people on the ideology spectrum to work together and we do. Everyone wants to be rid of the specter of addiction and to help those struggling to be better.”

Senate Bill 90 aims to reduce incarceration by implementing an 11-county, four-year pilot “conditional dismissal” program that diverts people with mental health and substance use disorders who qualify based on medical assessments by providing support and services in the community.

Individuals can receive treatment for a behavioral health disorder instead of going to jail. With an agreement between the defendant and prosecutors, their charges are dismissed if they complete the treatment program.

The option is only available to defendants charged with crimes less than a Class D felony. They also can’t have a previous conviction for a higher felony, or be charged with violent offenses or sex offenses.

The project began in January with Kenton, Greenup, Fletcher, Clark, McCracken, Daviess, Pulaski, Madison, Oldham, Hopkins and Christian counties participating.

The counties were chosen by former state Supreme Court Chief Justice John Minton, but Westerfield asked they consider criteria of geographical diversity, willing county participants and counties where medical providers are easily accessible.

Senate Bill 90 also requires that clinical assessments be conducted by a medical professional. At present, the treatment decisions are done by non-clinicians through pretrial services staff.

Money from the $28 billion opioid settlement awarded in February 2022 will help finance this program with $10.5 million allocated each year, Westerfield said.

Policy experts want expansion: ‘The goal should be keeping people alive’

Kungu Njuguna, a policy strategist with the American Civil Liberties Union of Kentucky, said state lawmakers made a great start on addressing substance use disorder but they need to do more.

“I think we have to end the stigma around (substance use disorder) and mental health,” he said. “The goal should be keeping people alive. We are losing neighbors and family.”

Njuguna said efforts to fight further criminalization of substance use disorder will help people work towards recovery. He also said helping address the opioid crisis and high levels of incarceration requires the state to overhaul laws criminalizing substance use disorder.

“Kentucky needs to take a real look at our criminal code and who we capture,” he said. “If we’re serious about ending the opioid epidemic we have to stop criminalizing people with substance use disorder and that starts with the criminal code.”

Njuguna is part of Kentucky Smart on Crime, a coalition of 14 organizations focused on justice reforms in the state. It was started in 2016. Both Njuguna and the coalition believe the pilot program implemented through Senate Bill 90 needs to be offered in all 120 counties in order to help resolve Kentucky’s substance use issues.

“When (all 14 groups) can agree on something in all aspects, that should say something,” Njuguna said. “... We want to keep the conversation going and (SB 90) is a great start to changing how we handle people with substance use disorder in the criminal justice system.

“This pilot project (starts) in January, but we think Kentucky shouldn’t wait. We should go ahead and expand the program statewide because there are people suffering in all 120 counties. If we can divert them away from incarceration to get treatment that can help them, we need to do that now – not wait and see if the pilot is a success.”

Jennifer Hancock, CEO and president of the Volunteers of America Mid-States, which is one of the entities involved in Kentucky Smart on Crime, agreed that the pilot model should be accelerated.

“That is a great start, but it is in 10 out of 120 counties,” Hancock said. “We need to make sure this is successful, learn what we can and grow fast so we can be nimble and responsive to what we are learning to take the pilot to scale. These are good people who have been affected by a terrible disease, who end up doing things that are harmful to our society and our communities.

“But it begs the question, how do we remedy and hold them accountable in ways that are meaningful?”

Just ahead of the 2023 General Assembly, the coalition said it was focused on investment in mental health and substance use disorder treatment, reclassification of simple possession, increasing access to expungement, reform of the persistent felony offender statute and more.

Bills like SB 90 have been a rarity, according to an analysis from the Kentucky Center for Economic Policy, a partner organization with Smart on Crime. From 2011 to 2022, the General Assembly has enacted six times as many laws to increase incarceration as to reduce it, according to the KCEP.

Westerfield also hopes the program can expand to other Kentucky counties, and said addressing the opioid epidemic is something lawmakers have as a primary focus.

“Substance use disorder has not, not been a subject of a session since I have been there. There are a number of committees that look at it, and we tinker with ideas, policy and changes. I don’t believe there is any slowing of momentum for that,” he said.