Will hospitals get their fair share of legal awards against opioid makers?

A landmark $572 million judgment against Johnson & Johnson over its role in the opioid crisis in Oklahoma may be just the start of fighting over how the money will be spent.

If the tobacco settlements of the 1990s are any guide, little will be spent on directly addressing the problem, and healthcare providers will play only a small role in the decisionmaking.

Some argue the money awarded to states through such legal actions should come with guarantees that the bulk of it will go directly toward helping those needing treatment.

“The lesson from the tobacco settlements is that unless the state attorneys general structure the settlements in a way that mandates the money be spent to address the opioid problem, it won’t happen,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids.

He said addiction stakeholders must keep public pressure on states so there’s not a repeat of what has occurred in the years since states won the historic 1998 settlement against the country’s major tobacco companies. The Tobacco Master Settlement Agreement has required tobacco companies to pay billions toward tobacco-related healthcare costs.

But over the past 20 years, states have spent just 2.6% of the more than $453 billion they have received in both settlement payments and tobacco taxes on tobacco cessation and prevention programs, according to a Campaign for Tobacco-Free Kids report released last December. Myers said states had virtually no stipulations on how much of the settlement money they were required to spend on tobacco-related health issues, which led many policymakers to use the funds for other purposes.

Barbara Eyman, Washington counsel for America’s Essential Hospitals, which represents the nation’s safety-net hospitals, said hospitals should look to partner with patient and public health advocates to lobby for the money that comes from such legal actions to help fund their treatment and recovery initiatives. “There’s a broad coalition of stakeholders who really would have a common interest in seeing the funding flow to help the people the suits were intended to help in the first place,” Eyman said.

E. Gordon Gee, president of West Virginia University, said healthcare providers need to have a seat at the table when it comes to deciding how opioid settlement money is spent in order to describe the tremendous burden they have experienced as a result of the crisis.

Gee recently announced he has partnered with former Ohio Gov. John Kasich to create a not-for-profit organization to help advocate for requirements that the proceeds from any national opioid settlement go directly to hospitals instead of local and state governments.

An estimated 2,000 lawsuits are currently pending against opioid manufacturers that have been filed by local, county and state government entities across the country. “People need to understand the kind of strain and incredible expense we’re going through to deal with this issue,” Gee said. “It’s a very compelling story—the information side of this I think will tell the story for us.”

In March, Purdue Pharma, makers of OxyContin, agreed to pay Oklahoma $270 million to settle a lawsuit the state brought against the company for allegedly helping to fuel the opioid addiction crisis. But the terms of the agreement required about $200 million go toward a plan to establish a new national center for addiction studies and treatment at Oklahoma State University. Only $12.5 million from that settlement was allocated to the state’s municipalities and counties to address their costs for the epidemic’s effects.

Patti Davis, president of the Oklahoma Hospital Association, said her members view the Johnson & Johnson ruling as more of a marathon rather than a sprint in terms of when hospitals might start to receive some of the funding to help with their treatment efforts as the pharmaceutical giant appeals the ruling.

Davis said she was optimistic that the terms of the state’s abatement plan in the order signify there will be opportunity for providers to discuss with policymakers how best to allocate those resources.

A bigger concern she had regarding the ruling was that it was simply not enough to meet the level of demand for recovery and prevention programs that many expect will be needed for decades.

In his ruling, Cleveland County (Okla.) District Judge Thad Balkman awarded Oklahoma enough to fund just one year of the state’s plan to abate the public nuisance caused by opioid abuse despite the state asking for around $17 billion to cover programs over the next 20 years. “These programs that are specified in the abatement plan are going to need to be sustainable because one year of funding is not a silver bullet,” Davis said.

Reports indicate that several opioid manufacturers may seek to settle future litigation brought by municipalities rather than risk losing similar high-profile court cases. Such a scenario could likely result in states receiving much-needed money to fund their substance abuse response efforts more quickly compared with having a long, drawn-out court fight.

But many of the state governments that stand to receive millions of dollars face questions as to how they will ultimately distribute the funds, and whether the lion’s share will reach healthcare providers on the front lines of the opioid fight.

“It is up to the state to use it in the right way,” said Gary Mendell, founder and CEO of the addiction recovery advocacy organization Shatterproof. Mendell provided expert testimony for the Johnson & Johnson trial. “The state should allocate the money to where it’s going to help the most people effectively related to the opioid epidemic—that’s where it should go, but there’s no guarantee.”

Oklahoma’s plan as stated in the judge’s order includes using the money to expand opioid use disorder prevention, treatment and recovery services; provide housing and employment services for patients; and enable all the state’s primary-care practices and emergency departments to receive training in patient screening, interventions and treatment referrals.

Such funding would go far toward increasing access to addiction medicine services in a state that has historically had significant gaps in healthcare coverage. In 2017, Oklahoma had the second-highest uninsured rate in the country behind Texas at 14%, according to a Kaiser Family Foundation analysis, with the state’s health system ranking 50th among states and the District of Columbia for performance, according to a June Commonwealth Fund analysis.

Meanwhile the state remains one of the hardest-hit areas for drug addiction in the country. In 2017, Oklahoma had the sixth-highest rate of opioid prescribing in the U.S. at 88.1 prescriptions for every 100 persons, well above the national average of 58.7 per 100, according to the Centers for Disease Control and Prevention. Despite data indicating the rates of opioid prescribing and death from opioids have started to decline in recent years as prescription opioid sales have fallen, more than 700 died from drug overdoses in Oklahoma in 2017, according to the CDC.