The ACLU of Vermont accused Vermont Health Commissioner Mark Levine of inappropriately altering a document about spending opioid settlement funds, a move the nonprofit called an “egregious” violation of state law.
The document in question is a set of recommendations from the Opioid Settlement Advisory Committee, a body tasked with deciding how to spend the state’s share of settlement dollars from prescription opioid makers and distributors.
On Dec. 22, the advisory committee — which includes lawmakers, state and local officials, and substance abuse recovery experts — met to complete its year-end spending recommendations to the Legislature. Levine is the committee’s “nonvoting chair,” per state statute.
Vermont currently has about $5 million in settlement funds to spend in the upcoming fiscal year. At that meeting, the committee largely agreed that about $2.6 million of that money should be spent on overdose prevention centers, according to a tally recorded by the committee.
But after that meeting, Levine unilaterally removed that recommendation “without taking a formal vote; noticing a public meeting; receiving public comment; or publicly documenting the change,” Harrison Stark, a staff attorney at the Vermont ACLU, wrote to Levine in a letter on Thursday.
That change, he said, represents “an unlawful usurpation of the Committee’s harm reduction mandate.”
The Vermont Department of Health received the ACLU’s letter and is “reviewing the content and claims raised,” department spokesperson Ben Truman told VTDigger in an email.
“As a matter of our overall response to the complex challenges of the opioid crisis, the department has not (wavered) from its commitment to preventing overdose deaths, and getting people the help, treatment and supports they need to live and succeed in recovery,” Truman said.
Overdose prevention centers, sometimes called safe injection sites, allow people to use illicit drugs in a safe and supervised facility, where staffers are on hand to respond to overdoses.
Committee members recommended setting aside $2.6 million annually “for staffing, facility, medical supplies, equipment, program, and miscellaneous costs,” according to a list of members’ top priorities.
But after that Dec. 22 meeting, Levine and other members of the Scott administration appeared to discuss those recommendations, according to heavily redacted emails shared with VTDigger by the ACLU after the nonprofit obtained them via a public records request.
On Dec. 28, Levine and other state officials exchanged emails with the subject line “summary of opioid recommendations.” The bodies of those emails were entirely redacted when provided in response to the ACLU’s public records request.
About a week later, Levine emailed Chief Prevention Officer Monica Hutt the subject line “High level OPC discussion.docx.” The body of the email and the title of an attached document were also redacted.
In a Jan. 12 email to the advisory committee circulating the final draft of recommendations, Levine explained that the request to fund overdose prevention centers had been removed because the Legislature was considering a bill — H.72 — to pay for two sites with a separate source of money.
“I look at this favorably, as it provides us with more opportunities to fund a broader array of initiatives across the continuum,” Levine wrote in his email. “Please note that I did clearly delineate the committee’s position on (overdose prevention centers).”
H.72, which passed out of the House last month and now is in the Senate Committee on Health and Welfare, proposes to create a pilot project of two overdose prevention centers funded by fees — not settlement money — paid by pharmaceutical companies.
Gov. Phil Scott has come out in opposition of the bill, and has signaled that he might veto it.
On Jan. 16, Levine sent a formal memo detailing the settlement advisory committee’s recommendations to the chairs of the House and Senate Appropriations Committee. Those recommendations did not include any money for overdose prevention centers.
Levine explained that omission in his memo.
“It is clear that the legislature plans to fund these centers from a non-settlement source,” he wrote. “Therefore … we have excluded this from the current set of recommendations for use of settlement funds so as to maximize our ability to support a broad array of initiatives.”
But Levine’s apparent alteration of the committee’s recommendations runs afoul of both Vermont’s Open Meeting Law and the law that created the Opioid Settlement Advisory Committee, said Stark, the ACLU staff attorney.
In an interview, Stark said the change was “particularly egregious,” given the advisory committee’s purpose of making recommendations on how to prevent overdose deaths.
“Regardless of what you think about the merits of overdose prevention sites, it is at the very least an issue of extreme public interest and public concern,” he said. “Any deliberation or official action taken about it needs to happen in the public. And in a way that’s responsive to public input and public debate.”
Levine’s apparent change appears to have rankled at least one of his colleagues on the advisory committee.
In a Jan. 19 email provided in response to the ACLU’s records request, Scott Pavek, a substance use policy analyst with the city of Burlington and a member of the opioid settlement advisory committee, told committee members that Levine’s memo “serves to give a veneer of legitimacy” to the Scott administration’s policies.
“I feel as though I am being trotted out like a token drug addict to reference in a footnote justifying decisions made by the Governor’s Office,” wrote Pavek, a longtime substance abuse recovery advocate. “Each member who stepped up to serve on this Committee deserves better — our communities deserve better, too.”
