In a new report, congressional researchers highlighted the “uncertainty” of the federal government’s position on safe drug consumption sites, while pointing out that lawmakers could temporarily resolve the issue by advancing an amendment modeled after the one that has allowed medical marijuana laws to be implemented without Justice Department interference.
As it stands, federal law has been interpreted in a way that makes it so the harm reduction centers, where people can use currently illicit drugs in a medically supervised environment, are prohibited. That policy is at the center of a federal lawsuit that the Justice Department initiated under the Trump administration to challenge a Philadelphia-based non-profit that sought to open a safe consumption site.
The Congressional Research Service (CRS) addressed the issue in a report released on Tuesday that broadly discusses opioid regulations under the Controlled Substances Act (CSA), with about half the length of the document being devoted to supervised consumption site policy.
As CRS pointed out, New York City opened the first locally sanctioned harm reduction centers in the U.S. late last year, and officials have already reported positive results in saving lives.
“While DOJ actively opposed the operation of supervised consumption sites under the Trump Administration, to date the Biden Administration has not sought to invoke the CSA against such facilities,” the report says. “In February 2022, DOJ stated that it was “evaluating supervised consumption sites, including discussions with state and local regulators about appropriate guardrails for such sites, as part of an overall approach to harm reduction and public safety.”
“In the meantime, uncertainty remains as to the legality of supervised consumption sites under the CSA,” CRS said. “Congress could resolve that uncertainty by enacting legislation. If Congress decided to allow supervised consumption sites to operate, it could consider the breadth of such authorization. One option would be to exempt supervised consumption sites from CSA control entirely.”
The research agency also floated the idea of Congress approving a temporary spending bill rider “to exempt from federal prosecution facilities operating in compliance with state and local law, as it has done with state-sanctioned medical marijuana activities.”
Since 2014, Congress has passed, and the president has signed, spending bill riders that block the Department of Justice from spending appropriated funds to interfere with the implementation of state medical cannabis laws. CRS says lawmakers could adopt a similar approach for harm reduction centers.
Rep. Pramila Jayapal (D-WA) has on two occasions, in 2019 and 2021, filed amendments to appropriations legislation that would do just that—but they were both withdrawn before receiving congressional consideration for reasons that aren’t clear.
Meanwhile, in contrast, the CRS report notes that Rep. Jaime Herrera Beutler (R-WA) filed a bill earlier this year that would punish jurisdictions that allow safe consumption sites by prohibiting federal funds “from being made available to a state, local, tribal, or other entity that operates or controls an injection center (i.e., a medically supervised injection site) in violation of the federal statute.” It has not advanced this Congress, however.
“Another option would be for Congress to impose specific registration requirements for supervised consumption sites under the CSA, as it has done for entities that administer medication-assisted treatment for opioid addiction,” CRS continued.
The report was published days after National Institute on Drug Abuse (NIDA) Director Nora Volkow tacitly endorsed the idea of authorizing safe consumption sites, arguing that evidence has effectively demonstrated that the facilities can prevent overdose deaths.
Volkow declined to specifically say what she would do if she were president and the Trump-era lawsuit was dropped, but she said that safe consumption sites that have been the subject of research “have shown that it has saved a significant [percentage of] patients from overdosing.”
The comments represent one of the strongest positions in favor of safe consumption sites to come from a federal official, and they’re all the more notable given the federal government’s position in a lawsuit that’s so far blocked the non-profit Safehouse from providing the service.
That said, the White House drug czar recently said that the Biden administration is reviewing broader drug policy harm reduction proposals, including the authorization of supervised consumption sites—and he went so far as to suggest possible decriminalization.
A study published by the American Medical Association (AMA) in July found that the recently opened New York City facilities have decreased overdose risk, steered people away from using in public and provided other ancillary health services to people who use currently illicit substances.
In October, the Supreme Court rejected a request to hear a case on the legality of establishing the Safehouse facilities, but the case is still before a lower federal court. Attorneys for the proposed site say that they’ve had “productive” conversations with DOJ in recent months, which is part of the reason why they’ve mutually agreed to extend the deadline for a federal response in the case several times.
Most recently, last week, lawyers for Safehouse and DOJ participated in a status conference before the federal judge in the case. The Biden administration has until December 5 to file a formal response in the lawsuit under the current timeline.
The National Institutes of Health (NIH) put out a pair of requests for applications (RFAs) in December for an effort that will provide funding for efforts to investigate how that and other harm reduction policies could help address the drug crisis.
Office of National Drug Control Policy (ONDCP) Director Rahul Gupta previously said that it’s critical to explore “any and every option” to reduce overdose deaths, and that could include allowing safe consumption sites for illegal substances if the evidence supports their efficacy.
The secretary of the U.S. Department of Health and Human Services (HHS), Xavier Becerra, has also signaled that the Biden administration would not move to block the establishment safe injection sites, stressing that “we are literally trying to give users a lifeline.”
But a department spokesperson later walked those remarks back, stating that “HHS does not have a position on supervised consumption sites” and the “issue is a matter of ongoing litigation.” In any case, it would be up to DOJ to decide whether to pursue operators of the facilities under the Controlled Substances Act.
In 2021, Rhode Island’s governor signed a bill establishing a pilot program to allow safe consumption sites to operate in the state.
A New York Assembly committee advanced a bill in May to establish a statewide safe consumption site program, allowing regulators to authorize facilities where people could use currently illicit drugs in a medically supervised environment.
In a pair of setbacks for advocates, however, Vermont’s governor vetoed a bill in June that would have simply created a working group tasked with crafting a plan to open safe consumption sites and the governor of California vetoed a bill in August to permit a pilot program for the harm reduction centers.
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