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What declaring a national emergency over the opioid epidemic could actually do

President Donald Trump said he will declare a national emergency. Here’s what that could mean.

President Donald Trump. Michael Reynolds/Pool via Getty Images

After months of anticipation, President Donald Trump may finally declare a national emergency over the opioid epidemic this week.

“It’s a national emergency. We’re going to spend a lot of time, a lot of effort, and a lot of money on the opioid crisis,” Trump told reporters in August. “It is a serious problem, the likes of which we’ve never had. You know, when I was growing up, they had the LSD, and they had certain generations of drugs. There’s never been anything like what’s happened to this country over the last four or five years.”

Since August, however, the actual emergency declaration hasn’t come. White House officials said it has been going through an expedited legal review. Then, last week, Trump announced the declaration would come this week.

Such a declaration was the top proposal from Trump’s commission on the opioid epidemic — which pointed out in its preliminary report more than two months ago that due to drug overdoses, there are “approximately 142 Americans dying every day, [and] America is enduring a death toll equal to September 11th every three weeks.”

But what will declaring a national emergency actually do?

I turned to public health experts for answers. From the top, they emphasized that there’s a lot of uncertainty. For one, it remains unclear which law, if any, Trump will invoke to declare an emergency. The move would also be unprecedented; such declarations are typically held for immediate, short-term crises like hurricanes and contagious disease epidemics, not long-term public health issues like the opioid crisis.

But a declaration could potentially unlock some support to address the crisis, including a bit of funding and special regulatory waivers that could bolster prevention programs as well as access to addiction treatment and the opioid overdose antidote naloxone.

This wouldn’t be enough to solve the crisis by any means. But, Lainie Rutkow of Johns Hopkins Bloomberg School of Public Health said, it “could make a difference, or it could at least jump-start things that would then be helpful in the longer term.”

How an emergency declaration could work

The Trump administration can declare a national emergency through two different laws: the Stafford Act or the Public Health Service Act. The Stafford Act would involve a declaration from the president, and it would unlock resources typically reserved for natural disasters like hurricanes and tornadoes. The Public Health Service Act would require a declaration from the secretary of health and human services, and it would unlock other resources and tools focused more on the medical side.

The immediate impact of such a declaration, some experts said, is it would send a message.

“When an emergency is declared, whether it’s by the president or by a state governor, the first thing that it does is give the public notice,” Rutkow said. “In many ways, it’s a communication tool to express how severe a particular threat is.”

Generally, the effect of a declaration through either law is that it expedites access to resources and different tools in response to a crisis. But depending on which law the administration uses to declare an emergency and what guidance the administration gives along with such a declaration, the resources that are unlocked could vary.

The Stafford Act could be used to mobilize and coordinate different federal and state agencies to home in on the opioid crisis. This could also come with limited money from the federal disaster relief fund, which amounted to about $3.3 billion as of September. That money could be used to scale up law enforcement or addiction treatment in response to the crisis.

The Public Health Service Act would allow the mobilization and deployment of medical staff in underserved areas. Rutkow said this could be used to staff up or train providers for medication-assisted treatment, which is considered the gold standard for opioid addiction care. Or it could be used to waive state licensing requirements for doctors, letting addiction specialists go into areas that currently don’t have enough access to such care.

The opioid addiction medication, Suboxone. Spencer Platt/Getty Images

A declaration through either law could also allow Section 1135 waivers for Medicaid. This would let the HHS secretary bypass regulatory hurdles that normally apply to the public health program. For example, under the Social Security Act, federal Medicaid funds can’t reimburse services from inpatient facilities that treat “mental diseases,” including addiction, with more than 16 beds. Eliminating this barrier through 1135 waivers would let states open more treatment options, which is something that the Trump commission on the opioid epidemic recommended.

The Trump commission’s report also argued that a national emergency would allow the HHS secretary to negotiate lower prices on naloxone. It’s unclear just how this would work, although some experts speculated that the federal government could try to negotiate lower prices through Medicare under emergency conditions.

Rutkow also pointed to the emergency declarations that several states have made in response to the opioid crisis, which allowed them to use more funding to, as one example, scale up treatment and the use of naloxone. For instance, Alaska Gov. Bill Walker’s declaration allowed Jay Butler, chief medical officer of the Alaska Department of Health and Social Services, to issue a standing order for naloxone across the state, making the drug accessible to anyone without the prescription it typically requires.

Still, with much of this, there’s a lot of uncertainty. Rutkow cautioned, “No one can point you to the exact model for how this would work for an emergency that’s been declared for a noncommunicable health condition. This is a new thing.”

Some experts are skeptical. Tom Frieden, the former head of the Centers for Disease Control and Prevention (CDC), told me the Stafford Act “doesn’t seem appropriate or useful” for this situation, because it’s usually saved for immediate, short-term crises. As for the possible benefits of the Public Health Service Act, he said that “it’s an in-depth legal question of what these are and whether they’d be helpful.”

For one, he argued that the message sent by an emergency declaration wouldn’t do much. “There’s always the argument that declaring something an emergency increases attention to it, but in this case there’s a lot of attention — just not a lot of effective action so far,” Frieden said.

He added, “[I]t could help, in the right context, as part of a comprehensive response, and if it encourages both funding and better collaboration between public health and law enforcement. If it’s just a political statement not backed by money or commitment to more action, and if it’s a way to propagate the criminalization of addiction, then it would be counterproductive. So, no easy talking point, but it depends on how it’s done.”

This, at least, seems to be a point of agreement about an emergency declaration: It all comes down to how it’s done, and it should only be one part of a broader solution.

The opioid epidemic needs a more comprehensive fix

The opioid epidemic began in the 1990s, when doctors became increasingly aware of the burdens of chronic pain. Pharmaceutical companies saw an opportunity, and pushed doctors — with misleading marketing about the safety and efficacy of the drugs — to prescribe opioids to treat all sorts of pain. Doctors, many exhausted by dealing with difficult-to-treat pain patients, complied — in some states, writing enough prescriptions to fill a bottle of pills for each resident. The drugs proliferated, landing in the hands of not just patients but also teens rummaging through their parents’ medicine cabinets, other family members, friends of patients, and the black market.

Eventually, many opioid users progressed to heroin and the synthetic opioid fentanyl. Not all painkiller users went this way, and not all opioid users started with painkillers. But statistics suggest many did: A 2014 study in JAMA Psychiatry found 75 percent of heroin users in treatment started with painkillers, and a 2015 analysis by the CDC found people who are addicted to painkillers are 40 times more likely to be addicted to heroin.

As the crisis has gone on, an increasing amount of people with opioid addiction have even started on heroin. A 2017 study in Addictive Behaviors found that 51.9 percent of people entering treatment for opioid use disorder in 2015 started with prescription drugs, down from 84.7 percent in 2005. And 33.3 percent initiated with heroin in 2015, up from 8.7 percent in 2005.

As a result, a lot of people are dying: In 2016, more than 64,000 people died of drug overdoses in the US, according to preliminary data from the CDC. This is the highest death toll from overdoses recorded in any single year in US history — surpassing the highest-ever single-year death tolls from guns, car crashes, or HIV/AIDS.

This is a result of essentially two simultaneous crises — which Keith Humphreys, a Stanford University drug policy expert, explained as the dual problems of “stock” and “flow.” On one hand, you have the current stock of opioid users who are addicted; the people in this population need treatment or they will simply find other, potentially deadlier opioids to use if they lose access to prescribed painkillers. On the other hand, you have to stop new generations of potential drug users from accessing and misusing opioids.

A full solution to the opioid crisis would address both problems. And it would require a big public investment, which experts say could total in the tens of billions of dollars a year. (For reference, a 2016 study estimated the total economic burden of prescription opioid overdose, misuse, and addiction at $78.5 billion in 2013.)

Activists march on Capitol Hill to stop the opioid crisis. John Moore/Getty Images

As I noted in my explainer about how to stop the opioid epidemic, we have a pretty good idea of what these resources would go to: They could be used to boost access to treatment, pull back lax access to opioid painkillers while keeping them accessible to patients who truly need them, and adopt harm reduction policies that mitigate the damage caused by opioids and other drugs. (More details in the full explainer.)

Yet Trump and Congress haven’t taken much action. The most notable bill Congress has passed is the 21st Century Cures Act, which was signed into law last year by President Barack Obama and added $1 billion over two years for drug addiction treatment — far from what experts say is necessary.

In fact, since Trump took office, the federal government has actually worked against some of the solutions to the crisis. Trump’s budget proposal would do little to nothing to boost prevention or access to addiction treatment. Congress, with Trump’s support, has worked (unsuccessfully — for now) to repeal Obamacare and, as a result, reduce access to insurance that can pay for treatment.

Meanwhile, Trump has talked up the role of the border wall and law enforcement — neither of which would have a significant effect on the opioid crisis, according to experts.

This has left public health advocates and experts hoping for anything to address the crisis. So even if a national emergency declaration may not amount to much, it would at least be something to address the deadliest drug overdose crisis in US history.

“The big question I haven’t seen answered is if the opioid crisis isn’t an emergency, I’d like to hear a little more about what’s the definition of an emergency,” said Butler of Alaska, who’s also president of the Association of State and Territorial Health Officials. “I recognize that people will say that this is a problem that has evolved over 20 years, but I don’t think that changes the fact we’re in a situation that requires an unusual, more enhanced response right now.”

For more on the solutions to the opioid epidemic, read Vox’s explainer.