The opioid stewardship bill made its last committee stop in the Senate this week, in the Senate Finance Committee. Unlike other committees, the Finance Committee does not take public testimony but focuses on the broader policy questions and fiscal issues at stake in a bill. It is made up of some of the most senior members. The bill, SF 730 is authored by the Chair of the Finance Committee, Sen. Julie Rosen.
We oppose this bill for many reasons. Most notably because it contains two new taxes and an increase in an existing tax. All of these taxes are labeled "fees," but they fit the definition of a tax as per Minnesota statute. Other Senators raised points about the Pharmaceutical industry's marketing being responsible for doctors over prescribing due to Pharmaceutical industry marketing. Many legislators see this as an issue of culpability, where the Industry needs to "have some skin in the game" or pay what are essentially damages.
One of the first questions from Senators came from Senator Michelle Benson, Chair of the Health and Human Services Finance committee. After admitting she did not like the bill she posed a question to other opponents asking about how the state should deal with the costs of opioid addiction.
There are a couple of ways to respond to such a plea. One is to do as Senator Benson asks and look at the HHS spreadsheet from last year and start picking on programs to cut. But that is a rough and almost impossible road given that every program has dependent clients, plus unions, plus activist groups and in many cases, paid lobbyists to keep the money flowing. This is on top of any legislators who regard themselves as its special protector.
Another is to stop regarding each crisis as a one-off that must be dealt with individually by the legislature with special considerations and programs in perpetuity. Although each crisis seems more terrible than the last and more worthy of attention, this is budgeting by crisis in an incremental fashion.
It's no secret that legislators with particular experience of the opioid crisis bring a great deal of emotion and energy to the solving of this problem and they especially want to punish, and exact damages from the pharmaceutical companies that they believe are responsible. But there are many parties in this mess. Doctors who allowed advertising to sway their judgment and overcome their training. Patients who wanted total pain relief fast and demanded "something stronger" than over the counter meds. Parents of minor children who did not intervene or ask questions when the addiction process could have been stopped. It's easy to point at the drug companies because they are the ones that financially benefitted from the sale and overprescription of these powerful, dangerous drugs. But this isn't the same culpability as say, a pollution belching factory. There were a lot of individual choices that were made to get to this point. Each actor in this mess is well aware of the problem, and many groups have already taken corrective steps to change their behavior. This can be seen in that many of these identified root causes are being stopped or changed.
Legislators are not in a good position to assess guilt or innocence nor are they able to accurately assess damages. That's a job for the courts, both state and federal. The legislature can tax or not tax. If it creates taxes, the State will collect money from one party and give it to another. Sen. Rosen complained that if the drug companies pass the cost of the tax on to the customer, (people seeking pain relief, hospitals and taxpayers since we will all be paying for Medicaid patients) that would be "criminal." But that was engaging in hyperbole because it's not criminal, it's how products are developed, sold and made. The price recovers the cost. Without this process, we would get no new drugs, perhaps new painkillers without addictive and dangerous side effects.
And we have to ask who will get the money? The fund would pay for addiction treatment but also for grants for other groups where we may lose sight of the "results-based" goals. The legislature is notorious for creating programs, never ending them and only providing oversight when there is a blatant or criminal waste of taxpayer money going on.
But as Sen. Benson and other Senators pointed out in this hearing, there is a cost to taxpayers of the increase in addiction. Poignantly, Sen. Benson mentioned opioid addicted babies. Who should pay that cost?
There is no solution when the question is framed that way. There may be a solution when we disaggregate the problem into addiction treatment, public safety and education with the professionals that are responsible telling us what they need to handle the problem. It's completely legitimate to fund these core functions of government with taxpayer money. What we don't think is right is creating a new fund, that will not serve to address liability but will add more taxes to health care, something that we cannot afford now.
It's easy for legislators to fall into the trap of wanting to "Do Something," ANYTHING to solve a problem. But unintended consequences are also important to consider.
There are other troublesome aspects of the bill. One that should give anybody pause is the way that it inserts the law between a doctor and a patient in not providing a clinical judgment exception for doctors to prescribe more than seven days worth of an opioid drug. (An earlier version of the bill had it at four days). The current version also attempts and fails to clearly define acute vs. chronic pain and doesn't even touch on chronic acute paid. (For example, someone who suffers from a condition where they periodically and suddenly suffer from acute pain, but the condition is chronic). Sen. Carla Nelson who represents Rochester brought up the question of whether legislators were qualified to be making these judgments but Sen. Rosen was unwilling to make a clinical judgment exception at this point.
Status of the bill: laid over in the Senate Finance Committee while the author continues to work on some portions of the bill with stakeholders. The Governor has a similar program in his supplemental budget. The House version stripped the taxes out of the bill and pays for new opioid addiction programs out of the general fund.