With addiction bill passed, now Oregon faces biggest challenge

This session, lawmakers culminated months of discussions and debate that roped in everyone from police officers to addiction specialists with a bill that sets Oregon on a new path to tackle drug addiction.

House Bill 4002, which Gov. Tina Kotek said she’ll sign, directs local agencies to build a new system to recriminalize drugs while trying to shepherd people addicted to drugs toward recovery. Though it will create a new misdemeanor in September, it emphasizes treatment over jail time.

To succeed, the plan needs the cooperation of county officials, police, prosecutors, public defenders, medical providers and others. It requires the creation of new programs and allocates $211 million to build and expand addiction services, treatment and related programs across the state.

The new programs that are supposed to deflect people away from the criminal justice system are not supposed to be cut from the same template. From county to county, they will look different – and run differently.

Washington County District Attorney Kevin Barton compared the work ahead to building an airplane. The Legislature has provided the airplane parts. But local agencies will need to put them together in a program to take off.

So far, 23 of Oregon’s 36 counties have said they plan to start new programs. The list encompasses all urban counties in the Portland area, Eugene and all the state’s larger cities, as well as many rural counties.

An earlier version of the proposal – that lawmakers ultimately scuttled – would have made the deflection programs mandatory throughout the state – with a requirement that a drug user get an assessment and attend at least one follow-up appointment.

But the final bill is more flexible: It directs law enforcement agencies and behavioral health entities to collaborate on building programs to steer drug users toward treatment, recovery services, housing and other services.

By giving law enforcement, prosecutors and local officials a voice in how the programs will operate, lawmakers were able to garner enough support to get the law passed.

But the big question now is: Will this approach work?

Oregon ventured alone in decriminalizing drugs. Now it is trying another approach, that exists in Seattle but is untested in Oregon. Officials don’t have much time to build the new system either: They need to have new programs in place by September when the misdemeanor kicks in.

And in the meantime, drug users will continue to overdose at a high rate.

The new system will include new and expanded addiction treatment facilities throughout the state. Lawmakers also provided more money for recovery houses so people have a place to stay off the streets and away from the direct temptation of using.

These services are supposed to aid people in the years ahead and gradually pull Oregon out of its fentanyl-fueled drug crisis. But drugs will continue to flood the state. The programs won’t all work the same, and each county may face different obstacles. These new programs could forge new connections among siloed professionals involved with drug users, but specialists do not expect the rollouts to be smooth.

Critics say a lot is at stake and that a lot of parts need to fit together to make this new approach work.

Lifting barriers

Much of the public attention on House Bill 4002 centered on unwinding Measure 110 by recriminalizing drug possession. But the bill also aims to boost access to addiction medication and expand treatment options.

It will prevent commercial and Medicaid insurers from requiring a patient to get a prior authorization or their permission before paying for a medication. Prior authorizations can be a barrier to treatment.

The bill will also allow pharmacists to provide emergency refills of addiction medication treatment, allowing patients to stay on the medication if it’s lost or stolen.

The bill will offer drug users the chance to stay out of the criminal justice system, with jail as a last resort.

In counties that set up deflection programs, when police officers find someone with a small quantity of hard drugs, the person will be given the option to enter a program and connect with a medical provider or other services to start their recovery. If they do, they will not face any jail time, a criminal charge, and they won’t need a lawyer.

If the person declines to enter a deflection program, they will be charged with the misdemeanor, but will be offered probation with treatment if it’s available. Under the bill, the person will only serve jail time if they violate or fail their probation.

Everyone who is charged through the court system will eventually have their cases expunged. The emphasis on probation instead of jail in the courts is a requirement in all counties, including the 13 that have not opted for deflection programs.

For a deflection program to succeed, it needs to create a pathway – or bridge – to connect the drug user to treatment, one expert said.

Dr. Todd Korthuis, an addiction treatment specialist at Oregon Health & Science University, said the state will need strong pathways.

“I think there’s an opportunity for these legislated deflections programs to meaningfully connect people to treatment who are looking for it,” Korthuis said in an interview. “And yet I haven’t seen any plans around this, and it matters a lot – how they’re doing it, where they’re doing it and how well funded they are.”

The strongest pathways, he said, will need to be a “true partnership” between deflection programs and treatment providers who prescribe addiction medications.

Dr. Moxie Loeffler, Oregon medical director of Community Medical Services in Salem, treats people with opioid addiction. She said the bill’s passage will help criminal justice officials and health care to work together closely.

“This passage could be part of building a bridge between those systems that will benefit our patients,” Loeffler said.

The idea is to remove some of the stigma surrounding addiction.

“The goal of having deflection programs in place will make people in criminal justice and law enforcement aware of the opportunity to treat patients, and to think of people in custody as patients first,” Loeffler said.

Oregon treatment options are limited

Oregon lacks addiction treatment – both inpatient and outpatient. In national studies, the state always ranks at or near the bottom in access to treatment.

A recent state report found Oregon has a shortage of nearly 3,000 beds for behavioral health and addiction treatment.

That shortage has continued since voters passed Measure 110 in 2020, even though the law allocated hundreds of millions of dollars of cannabis revenue for various services, including treatment.

The $211 million funding in House Bill 4002 comes in addition to the Measure 110 money and specifically aims to expand treatment by helping counties set up new programs as well as providing money for new residential facilities, recovery housing, clinics and court programs. It also allocated money for addiction treatment in jails.

The services set up under Measure 110 will continue. But as counties put together their programs, drug users will still face difficulty accessing treatment. That’s also a concern in gaining public confidence that the system works, said Grant Hartley, Multnomah County director for Metropolitan Public Defenders.

“Treatment is not available,” Hartley said. “That’s the thing that’s getting lost and frankly giving the public a false sense of confidence in this. We don’t want somebody going through all that process and being screened and wanting treatment, only to say that we don’t have it available because they won’t trust the process in the future.”

Hartley supports setting up deflection programs. And for many, the deflection programs may be the only opportunity for people to connect with services, given the lack of public defenders to help people who enter the courts system, he said. But, he said, the system will only work if services are available.

Often, street-level intervention with case managers and specialists who are in recovery is the most successful in drawing drug users toward treatment, he said.

“That person doesn’t know that this officer is actually really nice and progressive and really wants them to just get treatment and doesn’t care about them going to jail,” Hartley said. “They see a badge and a gun.”

Others share similar concerns.

Tera Hurst is executive director of the Health Justice Recovery Alliance, a nonprofit with members that provide various services funded under Measure 110. She said that when people seek services and can’t get them, they withdraw and that it becomes difficult to steer them towards recovery.

She also worries about the tight timeline.

“One of my biggest concerns with this bill is that the people are going to kind of try and do this really fast,” Hurst said. “And they’re not going to actually kind of take the time that it needs to really build it out and build the relationships between the providers and law enforcement.”

Designing the systems

Regional differences are likely to emerge among county programs. House Bill 4002 gives broad guidance, but leaves the details up to local authorities.

As officials discuss how to design their programs in Washington County and elsewhere, they are looking at what steps should be required to complete deflection, said Barton, the Washington County district attorney.

“Where do we say that we’ve successfully deflected someone?” Barton said. “That is, I think, a big unanswered question at this point. And that’s where it’s going to look different, I suspect between different counties.”

He said for the system to work, the drug user needs to take meaningful action towards recovery.

“It can’t just be ‘Well, we gave someone a pamphlet or we let them call a phone number or they talked to someone one time or three times,’” he said.

Counties could also set different timetables for how long someone has to sign up for a deflection program, and they could vary on whether they have people on call around the clock to respond to police officers.

Counties will have different types of challenges. For example, Barton said, Multnomah County has fewer police agencies than Washington County. With its wider mix of police agencies of different sizes, Washington County could face more difficulty in getting the agencies in Forest Grove, Beaverton, Sherwood and Tigard, for example, to coordinate to make the program work.

“Our job is to make sure that all of these instruments are playing the same song together, and we have to make sure that we’re singing in unison,” he said.

Other potential landmines

Under House Bill 4002, a drug user will not go to jail unless their probation is revoked or they violate it. The maximum penalty will be up to six months in jail.

A suspect also could face a jail sentence if they don’t show up for a court appearance. A failure to appear charge carries up to 364 days in jail.

Hartley, the public defender, said that’s a concern because of the lack of public defenders and prosecutors dismissing cases when suspects have to wait too long. Each county’s criminal justice situation also varies.

For example, Washington County has seen an increase in failure to appear cases in the last few years, Barton said. In 2023, the county had more than 7,800 failure to appear incidents, he said.

“So how are we going to address that landmine as we move forward?” Barton said.

He said police can’t simply arrest people and put them in jail when they fail to appear.

Each county will have to look for different solutions. Washington County, for example, might use its Community Corrections Center to house people and get them into treatment when they fail to make court appearances. The facility, which would ensure that suspects are supervised while trying to get them into treatment, has room for about 215 people. It also allows people to leave on work release, though he said that’s not used as much as it could be.

Lawmakers promise accountability

The bill requires the Oregon Criminal Justice Commission to report to the Legislature yearly on how the programs are working, including showing how many people are arrested. The state’s own analysis found that people of color would be disproportionately more likely to end up in jail.

Kotek has promised to hold counties accountable to try to ensure that the new programs don’t backfire. Lawmakers said they will also monitor how the new approach is working. They said they will revisit the issue. They did not consider the bill to be the only solution to solving Oregon’s addiction problem.

“(There) is going to be active and intentional engagement from the Legislature,” said Senate President Rob Wagner, D-Lake Oswego. “We need to all be doing what we can to pull in the right direction to address the addiction crisis in Oregon.”