The Kids Are Not Alright: Leveraging Existing Health Law to Attack the Opioid Crisis Upstream

The opioid crisis is now a nationwide epidemic, ravaging both rural and urban communities. The public health and economic consequences are staggering; recent estimates suggest the epidemic has contracted the U.S. labor market by over one million jobs and cost the nation billions of dollars. To tackle the crisis, scholars and health policy initiatives have focused primarily on downstream solutions designed to help those who are already in the throes of addiction. For example, the major initiative announced by the U.S. Surgeon General promotes the dissemination of naloxone, which helps save lives during opioid overdoses. This Article argues that the urgency and gravity of the opioid crisis demand a very different approach. To stop the epidemic, interventions are needed long before people are on death’s doorstep. Rather, it must focus on upstream interventions that stop people from becoming addicted in the first place. To accomplish this, we should leverage an existing legal infrastructure that is already capable of such a preventive response. Although largely overlooked as a tool in tackling this epidemic, children’s Medicaid, known as the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit, provides a mechanism to identify at-risk children and the treatment necessary to shift their life trajectories off of the road to addiction. This Article lays out a blueprint for the ways in which EPSDT, the largest provider of children’s health insurance in the country, facilitates best practices in substance abuse prevention through (1) regular mental health and substance abuse screening in the doctor’s office and (2) the provision of medically necessary treatment for children at risk for and engaged in opioid and other substance abuse. This upstream approach is consistent with Lifecourse Health Development theory, which emphasizes strategies that address risk factors and burgeoning health conditions in childhood before they become debilitating. Indeed, through the Medicaid statute and its legislative history, executive branch guidance, and judicial precedent, all three branches of the federal government have endorsed the power of Medicaid EPSDT to address health conditions early and preventively. This Article argues that this existing infrastructure should be leveraged so that at-risk children can access mental health and substance abuse services before a next generation falls victim to the greatest public health crisis of our time