New records reveal the cost of Pa.’s failure to clarify rules around addiction treatment and marijuana

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HARRISBURG — The failure by Gov. Tom Wolf’s administration to clarify federal rules around addiction treatment funding and medical marijuana caused even greater confusion and serious consequences than previously disclosed, a follow-up Spotlight PA investigation has found.

In September 2019, the federal agency that pays out hundreds of millions of dollars to Pennsylvania each year to combat the addiction crisis began warning recipients not to permit “marijuana use for the purposes of treating substance use or mental disorders.” That was particularly serious here, in one of the few states to endorse cannabis as a treatment option for opioid use disorder.

The rules weren’t as restrictive as they might have seemed, however. A few months later — on Jan. 1, 2020 — federal officials sent new guidance to the Department of Drug and Alcohol Programs that said people could still use medical marijuana as long as they worked toward alternative treatment options.

But for 17 months, the Wolf administration didn’t communicate the change with local drug and alcohol offices directly responsible for delivering services to Pennsylvanians.

In Bucks County, the local drug and alcohol office believed it wasn’t allowed to fund someone’s addiction treatment if they used marijuana for anxiety, opioid use disorder, and other behavioral health conditions. That understanding wrongly led Tyler Cordeiro, a 24-year-old Bucks County man, to be denied funding assistance in September 2020. He died of an overdose weeks later.

In Chester County, uncertainty over the rules led officials to avoid a grant program aimed at expanding and improving initiatives that provide alternatives to jail, potentially costing the county up to $200,000.

And in Delaware County, a social services agency added marijuana restrictions to a homeless assistance program, despite concerns that they could create another barrier to housing.

“Sounds like a Pandora’s box waiting to Explode!” one county official wrote in June.

It’s impossible to know the full scope of harm caused by the state’s delayed action. But a Spotlight PA investigation — based on a review of hundreds of pages of documents and emails obtained through open records requests — revealed workers on the front line of Pennsylvania’s opioid epidemic faced conflicting messages, widespread uncertainty, and fears of losing critical funding.

Among the findings:

In an interview in late August, the department’s secretary, Jennifer Smith, didn’t acknowledge any specific mistakes.

“We did the best we could given the decisions that we had to make and given the information that we had,” Smith told Spotlight PA. “Looking back, if we had known more, could we have made different decisions? Sure. But we didn’t have that information. All we knew at that time was what we knew.”

Smith said she wouldn’t explain how the department reached the decision not to share the January 2020 guidance, which she said was sent as a follow-up to a phone call that only specific state agencies were permitted to join.

But she contended the state “did not have the authority to distribute” the clarification from federal officials — something they directly dispute.

The Substance Abuse and Mental Health Services Administration said the guidance went out to all recipients of its multibillion-dollar State Opioid Response grant program. A spokesperson for the federal agency said it considered the information a formal communication that state officials had the authority to share with other agencies and organizations.

“SAMHSA wanted to make sure states knew how SAMHSA funding could and could not be used,” the spokesperson said in September.

A previous Spotlight PA investigation first exposed the delayed guidance and its impact on Cordeiro. His mother, Susan Ousterman, spent months this year reaching out to the Department of Drug and Alcohol Programs with concerns over confusion about the marijuana rules.

» READ MORE: Failure by Pa. officials to clarify rules around medical marijuana, addiction treatment had serious consequences

Emails show Smith reached out to SAMHSA in May 2021, after Ousterman began asking questions. The federal agency soon after shared the January 2020 guidance again, this time on SAMHSA letterhead.

“This is wonderful!!!” Smith replied.

Smith’s department released a public bulletin about the federal clarification in June. Then, in August, SAMHSA eliminated the most confusing and restrictive language from its rules.

The new federal rules eliminate any confusion, the Department of Drug and Alcohol Programs said in a statement that didn’t acknowledge any communication failures — or even disagreements between different agencies.

The department said it “will continue to have open lines of communication” with the federal government, county drug and alcohol offices, and addiction treatment providers “to ensure that all Pennsylvanians seeking substance use disorder treatment have the ability to access treatment with no barriers, and without discrimination or prejudices.”

But some state and federal lawmakers contend the department’s answers fall short, and have criticized the delay or said they want more details to prevent such failure in the future.

» READ MORE: Feds roll back ‘confusing’ addiction funding rules that had deadly consequence in Pa.

“I definitely think some answers from the department should be obtained to explain how it is that it took so much time,” State Sen. Art Haywood (D., Montgomery), minority chair of his chamber’s Health and Human Services Committee, said earlier this month.

Citing Spotlight PA’s reporting, State Rep. Frank Farry, chair of the House Human Services Committee, in July sent questions to the Wolf administration about the issue and asked for “a detailed response.” Even with the federal changes, Farry thinks more needs to be done on the state level.

“I think it’s pretty important that we continue to work on it,” said Farry, a Bucks County Republican. “I’m hopeful that we can turn this very sad story into a positive, and ensure the next young man or woman that is in that situation gets the help that they need, so that they can get on that course to recovery.”

Chester County officials had questions.

They were interested in applying for a grant from the Pennsylvania Commission on Crime and Delinquency — in partnership with the Department of Drug and Alcohol Programs — aimed at expanding and improving programs that provide alternatives to jail.

Up to $2 million in federal money was available, and one of the stated goals was “to better respond to Pennsylvania’s opioid crisis.”

Individual counties could receive up to $200,000 for 12 months.

But Erik Walschburger, a deputy district attorney from Chester County, had concerns about eligibility, he told the commission by email in May 2021.

“I was wondering when this issue was going to rear [its] head,” one commission official wrote to colleagues in response.

The application instructions included a restriction on any organization that permits someone to use marijuana for “treating substance use or medical disorders.” Chester County’s drug court had to allow participants to use medical marijuana, Walschburger said, because of a state Supreme Court ruling the previous year.

Did that make the county ineligible?

Privately, emails show, commission officials came to the incorrect consensus that they could not give Chester County any federal funding.

“Unless there’s some other language or other guidance from the feds, whose money this is, it can’t be used as described,” agency chief counsel Debra Sandifer wrote to her colleagues.

There was guidance that would have clearly shown Chester County was eligible, as long as it encouraged medical marijuana patients to explore alternatives, as well.

But the Department of Drug and Alcohol Programs did not tell the commission about the January 2020 clarification until “around late May/early June 2021,” a commission spokesperson said.

In response to Walschburger’s initial inquiry, commission officials — in consultation with the drug and alcohol department — decided not to directly address the marijuana issue. Instead, the commission sent him an email on June 8 thanking him for his patience and telling him that all counties were eligible to apply, and submitted applications would go through an extensive review process.

By that point, Chester County’s application was due in a week. The situation still seemed uncertain, so county officials decided not to apply.

“Had the answer been more concrete that our program was eligible and a more timely response provided, an application likely would have been pursued,” Walschburger told Spotlight PA.

Even after the state drug and alcohol department was aware of the clarification, at least some on the inside operated as if it didn’t exist.

In February of this year, months after Cordeiro’s death from a drug overdose, Ousterman reached out to the Department of Drug and Alcohol Programs about her son’s difficulty accessing treatment. She followed up multiple times with concerns about medical marijuana rules.

“As I said before, it’s hard to be confident the flaws are being fixed if there is no recognition to what went wrong in the first place,” she wrote in one of the emails.

Jodi Skiles, a bureau director in the department, connected Ousterman with Diane Rosati, executive director of the drug and alcohol office in Bucks County — where Cordeiro lived at the time of his death.

Skiles didn’t mention the less restrictive guidance when writing to Ousterman about the “medical marijuana disqualification” in April, and Rosati told Spotlight PA that, at the time, she didn’t know the SAMHSA clarification existed.

Rosati said her office believed it could provide funding assistance to people who used medical marijuana for physical health issues but not behavioral ones including opioid use disorder. She said that understanding was based on comments that the department’s secretary, Jennifer Smith, made more than a year ago.

“I want to be clear — our office had no confusion, we were following the DDAP regs regarding medical marijuana for behavioral health issues,” Rosati said in a June email to state officials.

Smith said there were only a few times counties reached out to the department with questions about the marijuana prohibition, and when they did, the department told them to contact SAMHSA directly. She said she didn’t know how many did so.

“But it was really up to the county to determine how safe they felt providing certain funding streams based on that tie to the federal requirement,” Smith told Spotlight PA.

Still, a Spotlight PA review of emails and subsequent interviews found, as with Bucks County, several others deferred to the Department of Drug and Alcohol Programs’ guidance and requirements. The department enters into contracts with counties and sends state and federal money to them so they can coordinate local prevention and treatment services.

Michele Denk, executive director of the association that represents the state’s 47 county drug and alcohol offices, said counties did not believe they should reach out to federal officials directly. They would have been hesitant to circumvent the state, she added.

“We were not really directed to reach out to SAMHSA until after August,” Denk said. “There would have been some hesitancy on our part … to go around our funding source and contact SAMHSA directly until after [Smith] says, you know, go ahead, just go ahead.”

Experiences with the medical marijuana issue varied by county, Denk said. Some never ran into a problem, she said, while others created workarounds but still worried they were handling the issue incorrectly. Those counties also feared that even raising the question could put funding in jeopardy.

“There were a lot of questions,” Denk said. “But talking about them — there was no thought that there was going to be a resolution.”

Rosati said Bucks County updated its practices in June to reflect the clarification, then again in August after the federal policy changed. Now, the office can fund people who use medical marijuana without question, she said.

“I would say though that it was unfortunate that we didn’t receive the guidance earlier on,” Rosati said. “And I’m sure everybody would agree with that.”

This spring, Finally Home — an intervention program in Delaware County for people with opioid use or stimulant use disorder who are homeless or at imminent risk of homelessness — added new restrictions on marijuana use.

The program, which receives SAMHSA money, is only a few years old, but it’s seen success, said Eileen Kemske, social services director for the organization that runs Finally Home. From October 2019 through September 2020, the organization enrolled 38 households, and about 85% maintained housing and remained engaged in treatment, she said.

The change surrounding marijuana came at the request of the county drug and alcohol office. Kemske said she and others were worried about the effect it would have on tenants and landlords alike. Landlords receive money through the program, so does that, she wondered, mean they couldn’t use medical marijuana either?

“I don’t know,” Kemske said. “It was very confusing language to us.”

Kemske’s organization pushed back but ultimately added SAMHSA language and made client participation contingent on agreeing “to not utilize medical marijuana as part of your treatment.”

Based on the January 2020 clarification from federal officials that the state didn’t share, that ban wasn’t necessary — something Kemske had no way of knowing.

A Delaware County official later told Spotlight PA that the county made the request based on guidance from the Department of Drug and Alcohol Programs earlier this year.

After SAMHSA eliminated the confusing language, Finally Home updated its handbook. But as of September, it still banned participants from using medical marijuana.

“Now that we’re talking through this … the statement below that you’re referencing should probably also come off,” Kemske told Spotlight PA earlier this month. “So that’s something that I’m going to have to reach out to the county about.”

Less than an hour later, Kemske emailed Spotlight PA with the latest revised handbook. Participants no longer had to agree to abstain from medical marijuana.

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