kit is one of the most downloaded resources on samsa's website. the president's 2016 budget includes $12 million in discretionary budget for states to deliver naloxone, in high-risk communities and distribute education for overdose prevention strategies. as part of a recovery-oriented care model, medical assisted treatment is not meant as a stand alone approach but rather is designed to include medication, counselling, behavioral therapies and recovery support. in march 2015, samsa revised guidelines for opioid treatment programs which highlight the recovery oriented care model and encouraged the use of any of the three fda-approved medications for the treatment of opioid abuse disorder based on an assessment of each individual's unique needs. . samsa is taking an integrated care approach as part of the new 2015 grant program to expand and enhance the availability of medication assisted treatment

and other clinically appropriate services in states with the highest rates of opioid admissions. the president's 2016 budget proposes to double this program. in collaboration with doj, samsa add language to the 2015 drug court grant requirements to make sure that drug court do not have to stop the prescription as part of a regulated opioid treatment program. samsa regulates the treatment programs which are expected to provide a full range of services for their patients. in collaboration with a drug enforcement administration, samsa provides waivers treatment in a practice setting other than in an opioid treatment program. samsa also fundsests to help prevent prescription abuse and heroin use. for example, in 2014, samsa strategic prevention framework,

partnerships for success program, made preventing and reducing heroin use one of its focus areas along with prescription drug misuse and abuse and underage drinking. for 2016 the president has proposed $10 million for the strategicy framework rx to help states use data, including pdmp data to identify and assist communities at high risk for the nonuse of drugs. we want to thank you again for taking on this issue and allowing samsa to share its efforts with you and we look forward to answering your questions. >> dr. conway, you're recognized for five minutes. >> chairman murphy and ranking member degette and members of the subcommittee, thank you for inviting me to discuss the cms's work to ensure that all bush dwraers are receiving medicines they need while also reducing and preventing prescription drug abuse. "tpáhurqp)d from other witnesses, they have been implicated in drug deaths in the last decade. as a practicing physician, i understand the importance of

this issue. cms recognizes the responsibility of ensuring appropriate safeguards are in place to prevent over use and abuse. ensuring they can access needed medications and treatments for substance abuse disorder. since inception in 2006, medicare part d prescription drug benefit made medicines more available and affordable, leading to improvement in access to prescription drugs. and better health outcomes. despite successes, part d is not immune from the nationwide epidemic of opioid abuse. cms broadenedite initial focus of trying to address potential fraud by making sure part d sponsors implement effective safeguards and provide coverage for drug therapies that eet safety and efficacy standards. we believe broader reforms will protect

beneficiaries of damaging effects associate with prescription drug abuse and to prevent overutilization. the strategy is to monitor part d drug utilization management programs to prevent overutilization of medications. to accomplish this goal the medicare part d overutilization monitoring system, or oms, was implemented in 2013. through this system, cms provides reports to sponsors on beneficiaries with potential opioid overutilization identified through analysis of prescription drug event data and through beneficiaries for the cms program for integrity. sponsors are expected to utilize various drug utilization monitoring tools to prevent continued overutilization of opioids. from 2011 to 2014 oms reduced users by 26%. cms uses the drug medic which is

charged with investigating fraud and abuse, developing cases for referral to "t&aw enforcement agencies. in 2013, cms directed the medic increase focus on data analyst in part d and used rule making authority to take new tools against problematic prescribers and pharmacies. we finalized a provision that requires providers to enroll or have an opt out affidavit on file p'd establishes a new rev indication authority abusing prescribing patterns. state medicaid agencies have taken action to attack that epidemic. efforts include expanding medicine dade to include behavioral health service for those addicted to drugs and pharmacy management review programs. cms does not determine what services are provided if each medicaid program to prevent and treat abuse, we are encouraged by the increasing efforts by states effected strategies tore designing benefits for the population. we launched the accelerator program, iap, toprovide states

with tech nal assistance and t% other support to address this important issue. cms in coordination with cdc, and nih, issued informational bulletin on medication assisted treatment for substance abuse disorder in the medicaid program. it outlined that medication and behavrju(s herapies is the most effective combination of treatment. we issued a similar bulletin "t#ocused on these services in the pediatric and youth population. cms is dedicated to providing the best care to beneficiaries with opioid addiction. working with part d sponsors and state medicare programs to have safeguards to prevent the abuse and treat them effectively.:

>> thank you, doctor, thank you for recognizing to take your family to testifying day. apparently everybody else didn't get the memo. i just want to start by saying if talents and dedication alone could solve this crisis, we'd be there with the testimony of today and other days. obviously we still have problems. let me start by asking a few questions. for the director, office of national drug control policy uses the term recovery, does it mean to include patients with opioid addiction in buprenorphine or methadone treatment program still using heroin or illicit drugs, or would you say that's not recovery? >> from our perspective and as a person in recovery, clearly we

want to make sure that people are continuing to progress in recovery, free from substances is the ultimate goal of recovery programs. i think everyone would agree on that. we also know that substance use, particularly opioid use disorders are a significant chronic disorder, and that often times and even my own experience show me that people often will experience relapse and will often need multiple attempts at treatment to get to that final goal of long-term recovery and long-term abstinence. we want to be sure we are continuing to engage with patients, that we are moving them toward better health, better recovery, and being free from substance use as part of long-term recovery. >> let me ask this we heard last week there was not uniform definition of recovery. this is the talent pool, you're the ones that do these. do you all meet on a regular basis to talk about these issues? when was the last time you got

together to talk policy issues, was it within last? can someone answer that, pam? >> let me start. >> you'll start. >> let me start. it is actually part of our statutory authority that we set in conjunction not just with hhs but all federal agencies that have a role in substance use and opioid use disorders. we have been engaged with dod, v.a., bureau of prisons. >> you meet regularly? >> we do meet regularly. we have quarterly meetings to focus where we are. >> let me move on that, too. that's important. miss hyde, let me ask you in response to our bipartisan letter of march 18th concerning the national registry of evidence-based programs, you noted that, quote, new submission and review procedures will improve rigor of registry and bring into closer alignment of other evidence based programs in the federal government, unquote. prior to entering into the july 2014 contract, did samhsa feel

it needed strengthened? yes or no. do you feel it needed to be strengthened? >> thank you for the question. we thought the process we used for determining what practices were reviewed needed to be strengthened, and in the process we have also increased the rigor with which we look at them. >> can you get a list -- not today but can you get us a list of what you consider to be models in the federal registry we can review as part of that, as evidenced based programs? >> certainly. >> thank you. your response also indicates an outside contractor will assume role of gate keeper determining which studies and outcomes are reviewed in the screening and review of an intervention with aim of preventing bias in the intervention developers. was samhsa's prior system for vetting and selecting interventions prone to any kind of bias or conflict of interest, was that a concern? >> yes, mr. murphy, it was a concern.

it was pretty much developer driven, so a developer had to want their practice to be reviewed. then they had some control over what research we looked at. we changed that with the new contract that began last year and we will help decide priorities together with public input, but the contractor will help us look more objectively at evidence. >> thank you. just hold up. i got a note, an article, is this one of your constituents from eastern colorado? i don't want to take your colorado thunder, a fascinating article. made reference to the increase use of emergency departments with opioids. and it's interesting they said the reasons for this first they said there's 10.5 million people with this is probably an underestimate, that people go to emergency rooms for treatment for withdrawal, but also many trying to get more opioids. when you have users with

prescriptions from more than one physician, they're more likely to be involved in riskier practices. i wonder if any of you could any of you comment on that's an area we are addressing? i think, doctor you were also talking about issues with regard to prescribing practice, and dr. frank? can some of you comment on those issues? >> yes. and i think that that article i think you're referring to the new england journal of medicine article that shows that there's been a very significant quadruple number of cases in intensive care units. this does reflect the fact that there are many women being prescribed opioid medications during the pregnancy itself, and based on another study was estimated 21% of women that are pregnant are going to receive an opioid medication, which again highlights the need to enforce better that the guidelines on the management of pain need to be enforced in better ways.

and this is also recognized by studies that have actually evl waited the extent that physicians are following guidelines by the main medical organizations as relates to management of pain. that's an area where there needs to be an aggressive increase in education and enforcement of guidelines. >> thank you. i am out of time. i ask unanimous consent to submit this research article for the record. you're recognized for five minutes. >> thank you, mr. chairman. doctor, as i mentioned in opening statement, you're one of the world's top experts on the issue of treating addiction. briefly, what does the body of scientific evidence show regarding the effectiveness of methadone and buprenorphine in treatment of opioid abuse disorders? >> the research has shown, has shown it not just for methadone and buprenorphine, and naloxone,

that this medication as used as part of a comprehensive program for treatment of opioid addiction are quite effective and significantly improve outcomes of individuals being able to stay on one hand abstinent from the drug or to decleese the likelihood of relapsing, also protects them against adverse outcome such as overdoses. >> so in light of those studies you also said in your testimony that existing evidence-based prevention and treatment strategies are highly underutilized across the united states, and last week we had an expert tell the panel that very few patients with opioid addiction today received treatments that have been proven most effective. he was talking about the rapid detox, followed by abstinence- based treatment. i wondering, doctor, if you can help understand this. why do we have a situation where

people are not getting evidence- based treatment? >> one of the problems and it's a complex problem, and there are many reasons they're not getting correct treatment, including the fact of education as it relates to the proper screening and management of substance abuse disorder, including the health care system. then you have an infrastructure developed because the addiction is stigmatized. therefore, the likelihood of people accessing that care is much lower, then of course there's a difference between states in the way they implement treatment, so all of these factors account for the current situation. >> dr. frank, do you have anything to add to that? >> yes, i do. i think one thing that's very important to remember is that, overall, we treat 10% of the people with these disorders. so it is not surprising that people aren't getting evidence- based treatment because they're not getting treatment, period.

second part is why aren't they getting evidence-based treatment among those that do, and i think that there are insurance dynamics that hopefully we are fixing. there are access to trained professionals who are trained in these things and then in a sense trying to kind of get the systems and infrastructures aligned to support the best practices. >> and, doctor, several of our witnesses, including you, mentioned that role of the states in this. can you talk about that for a minute? >> absolutely. i think states have different populations, different issues, different prescription drug monitoring programs and so tailoring for states, so they can identify, state medicaid program or other high risk programs or patients and how to best target them, and that's why

the program at the cdc is really helpful because we have the higher level view to work across states. >> and do you think the states have work to do in terms of implementing these programs that are science based and that work? >> you know, i think we are starting to do that. like our program itself has only been in existence for six months but we are seeing great progress. if you look at policies states are implementing, we are seeing reductions in doctor shopping, patients going to different doctors because of utilizing prescription drug monitoring programs. although it is early in the stage, i am very optimistic we are making progress in the states. >> doctor, i want to come back to you. another expert last week said patients and their families need to know that detoxification treatment and drug free counseling are associated with a very high risk of relapse. i am wondering if you can tell us what the science shows. is this type of treatment

generally effective or less effective? what is does the research show? >> the research has shown that in general it is associated with increased mortality, like what you just mentioned and this reflects the fact that addiction is a chronic disease, changes in the brain persist months, years after you stop taking the drug. what they do is remove the physical dependence and assume the addiction is cured, and these are two independent processes. as a result, the patient feels they're safe, and then they relapse because they're still addicted. many times they overdose. >> thank you. thank you very much, mr. chairman. >> i recognize mr. collins for five minutes. >> thank you, mr. chairman. this is truly a fascinating topic we are discussing and it is obvious there's no very easy

solution. we heard it is a chronic disease, 10% are seeking treatment. i guess my question for miss hyde and samhsa is, certainly with pregnant women that may have young kids at home, inpatient treatment might be the preferred, we just can't let perfect be the enemy of good what other options are you looking at for people that aren't going to enter inpatient, they may be part of 90% not getting treatment at all. some treatment better than no treatment, as frustrating as frustrating as that might be what are your comments to the young mother that's got kids at home, she's pregnant and dependent and just can't go into an inpatient center. what do we do for that patient? >> thank you for the question. the issue of pregnant and parenting women is a big one in our field. we have a small program to address your issue, but you're

right, it is a residentially- based program. we are increasingly looking for ways to take what we learned in the program about the best ways to treat pregnant and parenting women and take it to other settings, whether it is opioid treatment programs or the training we do for physicians who are using medication- assisted treatment to deal with pregnant and parenting women, so we are trying in every way we can to make those services available to those women. >> so again, with pregnant women, looking at other treatments, whether that's buprenorphine or methadone, are there studies that show whether that has an impact on the fetus and the baby? >> you're right to be concerned about the child. what we see is that this prevents death, it prevents addiction of the baby, it prevents a lot of other issues that may come with allowing the

young woman to continue with the illicit drug use or the prescription drug abuse or opioid misuse. definitely providing treatment helps both the woman and the child. >> now, you've counselled these women. what kind of reaction are you getting? are they recognizing, and you would think genuine concern for the baby, very much a complicated balancing act going on here. what kind of reactions are you getting from the women acknowledging the problem and wanting to treat it? >> you know, most pregnant and parenting women really want to do the best thing for their babies and they want to do the best thing for themselves, but as you've heard, addiction is a chronic disease, it is difficult. it changes the brain, changes the ability to make decisions. the women in the programs we provide support for find it a helpful program with the kind of supports because we provide a

range of programs and we have recently introduced medication- assisted treatment into the programs as well. >> so are these women finding you on their own or are there physicians guiding them to you? >> the women that come to our programs come from a variety of places, some from correctional system, some from physicians, some from family, some from self-referral. so they come from a number of places and we don't make a distinction between where they come from in terms of providing care. >> now, something this committee is very concerned with, and again, mr. chairman, thank you for holding this hearing and for all of your testimony, i wish there was an easy solution, there just doesn't appear to be one. so this will have to be addressed on a lot of fronts. with that, i yield back. >> you're recognized for five minutes. >> thank you, mr. chairman. let me welcome the wonway family to the hearing and let me

compliment michael for having roots, origins in the 20th congressional district of new york. welcome all. one of the biggest concerns i hear from families struggling with addiction is difficulty they have accessing treatment. as you know, with the mental health parody and addiction equity act as well as with the the affordable care act, millions more gained access to mental health and substance abuse services. however, recent reports lay bare the fact that these new treatments as options sometimes exist on paper only. so my question, first to assistant director frank, dr. frank, what is hhs planning to do to increase public disclosure of the medicaid management practices insurers use both on the commercial side and on medicaid and c.h.i.p. so that consumers can truly evaluate their health plans to ensure they're in compliance

with parity? >> thank you for the question. we, too, view the mental health parody act as an incredibly important opportunity to increase the use of evidence- based practice and access to treatment. we are doing a number of things. we work with both the department of labor on the erisa side of commercial health insurance side. we've trained the erisa investigators in how to detect deviations from parody arrangements with an insurance, and so they're out there fully trained now working on these issues. we have a group within hhs who regularly provides technical assistance to state insurance commissioners and works with them to resolve complaints as they arise, and we've done

continuing series of forums and technical assistance around the country. we are working with stakeholders, some in the room today, to improve our ability to ask for disclosure and to offer up consumers the opportunity to really make that evaluation that you referred to. >> thank you, assistant secretary. director, we'd like to talk about another barrier for treatment to patients. press accounts suggest that some states are denying patients access to drug courts if they're receiving medication-assisted treatments, or m.a.t.s. i understand this is a problem in kentucky, according to some press accounts. so director, can you explain what's going on here, given the important of m.a.t.s, why are some attempting to cut patients off medicines that can help them recover? >> thank you, congressman. as many of my colleagues talked about today, increasing access to medication assisted treatment along with other behavioral therapies is the best course of

treatment for people with opioid use disorders. unfortunately one of the access issues we find in addition to issues around payment have been particularly lack of access within the criminal justice system, and we know that many people with opioid use disorders end up in our system. some drug courts haven't adapted policies that the national association of drug court professionals endorse in terms of ensuring people who have an opioid use disorder get access to those medications, as well as not predicating participation that they get off these medications. part of what we have been doing on the federal level is using our federal contracting standards to ensure people with opioid use disorders, whether in drug court or treatment program or other venues are offered access to medication-assisted treatment and are not denied participation based on the fact that they are on physician prescribed medication.

>> dr. volkow, on that issue do you agree with the assessment? >> i agree, and developing opportunities that are more amenable to the criminal justice system, like the prison and jail, so there is no reason why they should not get access to medication. >> another barrier that patients face is lack of available treatment providers who can prescribe m.a.t.s. director, can you comment on this derth of providers that can prescribe buprenorphine, for example? what are some of the reasons for the shortage, what can we do to address it? >> one of the other opportunities we have is ensuring all of our treatment programs offer medication assisted treatment in analysis of the treatment programs that a very low percentage of them incorporated

medication assisted therapy into their programs. some of this, congressman, quite honestly, has been by myth and misunderstanding and this divide between abstinence-based care and medication assisted treatment, which i think is really unfortunate that we have here. we really want to make sure if a client is entering a treatment program that has particularly federal funding, needs to offer by way of its own offering or through referral medication assisted treatment. >> all right. thank you very much. and thank you to the entire panel for guiding us on this crisis situation. >> i want to ask as clarification for the question on drug courts and use of medication-assisted treatment, you're recommending medication- assisted treatment as part of an option package, although you say obviously we want to get people free from drugs altogether. does it require recommended practice from your agencies to get drug courts to do that? does it require regulatory changes from one of the agencies

to do that or does it require a legislative solution from us to do that? >> we have been doing that as condition of their federal drug court language. >> okay. >> you know, again, we want this be decided by an expert in addiction services in consultation with the patient, but didn't want categorical denial. >> are you adding to that? >> i did mention in consultation with ondcp and with department of justice, we changed the language in request for applications for drug courts so that they can't require someone get off of or not be on medication-assisted treatment, if it is prescribed appropriately by physician or certified program. >> so, i just wanted to add though, what you can do, you can make federal funding contingent on full programs but we can't force the states or whatever regulatory agency setting up the

drug courts, to offer this, they just can't get federal money if they don't offer it. >> going to be talking at state level as former state administrator, states play a crucial role. there are many, many programs out there that don't receive federal funding or drug courts that don't receive federal funding. we hope that our policies and procedures are adopted by those nonfederally funded programs, but states play a key role in licensing treatment programs. >> thank you. >> and they, i think, can look at the opportunities of increasing or ensuring that state license of treatment programs also have the same kind of language. >> thank you. speaking of states, the gentleman from west virginia. mr. mckinley, five minutes. >> thank you very much, mr. chairman, and thank you for the hearings we've been having on this topic. as an engineer, i need to see things in perspective.

so i've been following this the last four years in congress and on this committee, trying to look at this issue. i think one of the last meetings we just had, i tried to put it in perspective by saying -- you said there were 44,000 overdose deaths. i want people to understand, that's more than died in vietnam in combat. i don't know that the american public understands that, and every day on the news, nbc or whatever, they had body counts and had that, and people were outraged over that. i am not getting the sense of outrage over every year we are lose as many people to drug overdose as in a ten-year war in vietnam. i am concerned when i had affirmed in west virginia one in five babies born in west virginia and it may be 1 in 4 in other states, but 1 in 5 have

been affected with drugs. i keep things in perspective saying, in europe, overdose rate is 21 per million. in america, it is 7 to 10 times that amount. i get on the verge of outrage, father of four, grandfather of six. these are what we are giving our kids, this is what the future is. i hear this testimony from this panel of seven and seven before that and seven before that. quite frankly, i get confused. i don't know what the priority is. for the business community and you all here in washington, everyone loves to plan. but they don't carry out. that may be insulting, and i don't mean it in an insulting fashion, but we have 44,000 more people that will die between now and next year because we don't have -- i would like to think we could

come up with one way, at least one, prioritize it, what's one thing, and then put everything we have into it. that manhattan project, go after that one solution and see if that doesn't start the ball rolling in the right way. then we can do two, three, four with it, but a focus. i don't see a focus. i didn't see a focus from you. i heard seven or eight ways we might be able to approach this problem because the plan, everyone loves the plan, but implementation falls short. so since you're meeting on a regular basis, couldn't you come up with one idea to where we ought to begin? the metrics, the optics, we can dig into that and then we can have plans b, c and d, but let's achieve one instead of continuing to meltdown like this. i don't want to see another statistic of 44,000 more people die of overdose. i hesitate to ask, can you come

up with an idea today in the time frame? is there one, just one idea we should focus on? what's the best way? is that in the drug use, is that in real-time, on purchasing prescription drugs, that it is a national database? is that the number one thing we should do? my god, the federal government just changed sentencing guidelines for heroin and said if you're caught with 50 hits of heroin, you get probation. what are we doing? are we fighting heroin or not? i am really frustrated with this. give me more guidance on plan one. >> i appreciate your attention to this and, you know, myself and many of our colleagues have been doing this work a long time, i think are filled with a sense of tragedy in terms of where we are and know that we can do better and work with congress.

you asked for one. i think there are three areas in the secretary's plan that we have got to do. we have to change prescribing patterns, we are prescribing way too much medication. and that's starting the trajectory. we need to increase capacity to treat the disease so people that go down that path have adequate access. the third, that we need to focus on reducing overdose deaths. those are three areas we can work with congress on to look at how do we increase our efforts. >> let me add onto that. seems that people from west virginia think alike that way and our secretary who is -- shares the same experience you do pushed us to focus and take action in those three areas. you know, with it this year, we more than quadrupled funding in those areas and we're going to triple that again if our plan

goes through, and these are in those three focused area because that's where the evidence says we should be doubling down. that's what is guiding us. >> thank you. is the secretary asking for legislation on this, then, to facilitate the answer to that question? >> there are some legislative proposals and some of it is just increasing some of the use of discretionary funds and we got some additional appropriations this year, and then in the president's budget we have some legislative proposals. >> let the committee know if there's any language to address that question. miss clark from new york, you're recognized five minutes. >> thank you very much, mr. chairman, and our ranking member. thank you to all of our witnesses for giving the committee the benefit of your expertise and experience today. i would like to focus on the prevention side of the equation, how do we prevent opioid addiction in the first place.

dr. volkow, picking up on a point made just a moment ago about way too many prescriptions, this is to you. why are so many prescriptions being written for opioids? are physicians not getting the appropriate level of training and education in pain management? responsible opioid prescribing practices? what would you say? >> they're both. actually what happened is we have to recognize that there's another epidemic of chronic pain in our country, estimated 100 million people, according to the institute of medicine. as a result of pressure of need to address this problem, the joint accreditation required that hospitals and physicians in hospitals ask questions about pain and treat them. this was in 2000. the problem was that that was not associated with the education required in order to be able to properly screen the

pain but also to manage it and to use opioid medications adequately. there was a pick up between need to implement better treatment for pain, but inadequate education of that system. so that's a major problem. in terms of prevention, we have to recognize two aspects on this epidemic different from the others. one, we have individual start diverting and get medication, they want to get high. then there's the other element as important of individuals that are properly prescribed the medication because they have pain. in the past, it was believed you got an opioid and had pain, you will never become addicted. now data shows that's not correct. the range goes enormously from none to something like 40, 60, we have no real idea. that's why i highlighted the notion of if we need to be very aggressive in education of health care providers on screening and management of pain

but also be very aggressive on treatment of health care providers for recognition of substance abuse disorder to when a person is properly treated, to transition and how to inconvenient. >> thank you very much. director, does ondcp believe that the federal government should mandate continuing medical education on responsible opioid prescribing practices as a precondition of dea registration to prescribe controlled substances? can you elaborate on how that would work if that's the case? >> sure. we support mandatory prescriber education for all of the evidence that you heard today, it is clear that if we want to prevent prescription drug misuse, heroin use and overdose, we need to stop prescribing these medications so liberally. there was a recent gao report that showed physicians get little to no pain prescribing,

veterinarians get more pain prescribing than physicians in the united states. so we don't think it is overly burdensome to require physicians in this epidemic to have education. i think as you talked about it, we would have to work with legislature to look at changes to controlled substances act to ensure that a certified continuing medical education program would be linked to the dea licensure or relicensure process and that we would monitor both -- oversee those courses we believe have core competencies we think are important and monitor who takes those. >> very well. thank you very much. manufacturers of opioid pain i relievers are currently required to offer free voluntary education to physicians or responsible opioid prescribing practices. however, as i understand it physician participation rates

for these voluntary education courses are fairly low is that correct? >> we do have those programs in place. they were put into place about 18 months ago, and so the initial year was spent putting into place a process to allow the education to be available, prescribers to make use of it. during that time we saw about 20,000 prescribers that are using extended release, long acting opioids sign up for one course. 20,000 out of 320,000 prescribers that prescribe the medicines is not a large fraction. it is progress. we hope in the second year that ends july this year, we will see a larger increase in terms of uptake and use of this education. we have been working with the continuing education community to make better use of it, make it more available. we are optimistic. we hope we will see more use. it is one of two pillars of education from our perspective,

combined with mandatory education that he just spoke about, we believe both of these provide important opportunities to educate prescribers. >> very well. i yield back. thank you very much. >> thank you. miss brooks of indiana, five minutes. >> thank you, mr. chairman, for continuing the focus on this critical subject for our country. i want to start with you, dr. volkow. we talked about how the opioid addiction facing the country is in large part due to chronic pain. you mentioned 100 million people suffer from chronic pain. one in i heard up to one in three americans possibly suffer from chronic pain. one of the goals of this hearing is to focus on evidence-based treatment and new treatments, try to find out what is working and obviously one treatment doesn't work for everyone as we've heard. but there is, i learned about in the course of examining this, that there are technologies that are new, not completely new, one

being -- i was told about spinal cord stimulation which targets nerves with electrical impulses rather than drugs. clinical studies show it to be safe, 4,000 patients received the stimulator, so it obviously is a device, a technology, that can actually stop that stimulation, it can help hopefully end that addiction, yet nih hasn't included it in the draft pain strategy, didn't mention technologies like scs. can you talk at all about why it wouldn't be promoting this fda- approved type of technology and are there other technologies we ought to be talking about other than medication for chronic pain? >> thanks for the question. indeed, this is an area that is rapidly evolving, and if it is not mentioned it is because many of the findings are too recent. the one that you're commenting in terms of stimulation is one

of the strategies we are promoting research, and the same strategy can be utilized to be able to actually inhibit the emotional centers of the brain that react to pain. so researchers are utilizing a wide variety of tools and technologies that have a goal of the initiative to understand the brain, that again highlights, but it brings up something that i think that is facing us in this epidemic, the need that we have to develop better strategies for the management of chronic pain because the physicians are forced, patients in great suffering, they don't know what to do and they give an opioid, even though the evidence does not show us that they're very effective for the management of chronic pain, but there are not many out there. so recognizing this is an area where we require to invest resources for having

alternatives with patients with chronic pain is important part of addressing. >> how would you recommend we increase patient access and educate more physicians about this type of technology? >> well, this is new technology, some of them, actually the evidence is just emerging. it will have to be submitted to the fda for approval, then physicians as part of training should be exposed to them. i would say, just highlighting in the notion because michael the lynniater, i think it's important that medical students as part of their basic training have an understanding of these technologies because pain is part of every medical condition, almost of every medical condition. >> thank you very much. i would like to ask you, my state, the state of indiana, recently passed a law allowing physicians to prescribe the naloxone to parents and others and friends giving them greater access to the reversal heroin drug.

would you speak as to what's known about the impact of those naloxone programs and whether you have concerns whether the naloxone might encourage more risk taking because i met with law enforcement who said they had given people naloxone, saved their lives, and a couple weeks later saved their life again with naloxone. and so i am somewhat concerned. i want to absolutely save lives and we must, but yet -- and we know there aren't enough treatments, this is a huge problem, but might that encourage an addict if they knew their mom, dad or friend had the save right there, can you talk to us about these naloxone programs? >> so to the first question, obviously naloxone distribution by as many people who have the potential to witness an overdose, law enforcement in

counties play a key role in that effort. i will tell you by way of when i was in massachusetts, we significantly increased access to naloxone and did a peer- reviewed study that showed when you introduced naloxone into a community, overdose rates go down. and the more naloxone you introduce, the better the scale effect. one of the pieces we are concerned about but no evidence to show that naloxone distribution increases drug use, some of the issues that you mentioned become critically important that overdoses are often seen as a significant motivator for people to seek care, but having treatment on demand is a particular issue. treatment on demand, particularly in rural communities, is particularly an issue. interventions at our emergency departments to get people into care are critically important. while we know addiction is a chronic disease, and some people

continue to use when you have adverse events, but we also need to know we have to have a comprehensive response, not just saving somebody's life. >> i agree. i hope the results in indiana prove to be the same as in your state. i yield back. thank you. >> thank you, mr. chairman. before i get to some questions, i have a follow-up question for miss hyde. last time that you were in front of this committee, which i really appreciate you coming back, we discussed your websites and if they were an effective use of taxpayer dollars. at that time you stated that you were in the process of evaluating that. have you finished that process yet? >> that process continues. thank you for asking the follow-up question. the process continues. i think the website that you indicated most concerns about was one of the websites we were in the process of reviewing. it was originally developed

based on data and knowledge from nida. >> that was for the 3 to 6-year-olds for suicide prevention. have you finished that one yet? >> yes, building blocks i think is the one you were concerned about. >> right. >> we have worked with our colleagues at nida and determined the website hadn't been updated, needed to be updated, and we are in the process of updating that. >> could you give me progress reports so i can know where you are at? we want to be sure taxpayer dollars are being used in an effective way. >> certainly. >> to get to the questions, simple yes or no, does the fda recommend methadone be used as first line of therapy for chronic pain? >> methadone is approved for use for pain, yes. >> but specifically speaking to the first line, for first line of defense basically? >> it is one of the medications that we have approved for pain.

i will say, however, if you look at methadone, the labeling for methadone, it calls it out as far as a product that has particular characteristics that make it challenging to use for pain. >> that would be a no for the first line? as recommendation -- >> our recommendation is prescribers think carefully before using methadone. there are things that make it a challenging product to use. it is approved for use in that setting, but i hope doctors think very carefully before they do it. >> well, the fda put out a warning about the drug safety and basically said that you guys, that insurers should not, should not be referred as preferred therapy, unless special instructions in education was put onto it. so i would take that as the fda would by this statement, it would be a no, that you wouldn't recommend it unless there's a lot of consideration taken? >> personally, what i just said is where i would be. i would need to look at the statement and get back with you

about specifics of it. it is a drug that has a long half life, that's variable patient to patient. has unique cardiac toxicity. there are other drugs useful for pain that don't have those characteristics. >> all i am looking for is yes or no because we're really trying to get to another -- farther on down the line of questions. i appreciate you being here. i like the last name, my sister's last name. >> good last name. >> i have three beautiful nieces. the spelling is usually messed up. dr. houry, what about the cdc? do you guys consider this methadone as being first line of defense for pain? >> at cdc we just focus really on the primary prevention, not much as care. i would defer to sister agencies on that. >> which would be?

>> the panelists here at fda. >> dr. throckmorton gave his personal opinion. the statement of fda you heard about. would you follow the statement i am assuming? >> i would follow his statement. i don't have a person opinion on methadone for pain, it is not something i did in my prior practice. >> dr. conway, by the way, i am always jealous when people have their family with them. i have five wonderful kids. if you ever want to see me cry, that's about the only thing will make me cry, i miss them. >> how are your kids doing? >> thanks, i appreciate that. >> i'll take a deep breath and wipe the tear away. are you aware that methadone accounts for 30% of overdose deaths while only accounting for 2% of prescriptions prescribed for chronic pain? >> i am aware it is a higher percentage of deaths compared to prescriptions because of the long half life and risks described. >> would you personally recommend it as a first line of defense for pain?

>> i'm a practicing physician. i do not as a practicing physician typically use methadone as a first defense. however, i think it depends on the individual patient characteristics and would defer to the physician's judgment with that individual patient. >> well according to the pew research, they put out a deal that said, methadone is available in low-cost, generic form and is considered a preferred drug in many states by their medicaid programs, despite fda warnings about the drug safety and statements by american academy of pain medicine that insurers should not be referred this therapy unless specially educated and provided to the individual. i just kind of wonder if overall i would think we're considering it not being there. why is it still listed as a first line with medicaid, i mean, when we're seeing so many deaths?

it almost makes you think is it the cost of a life not more valuable than the cost of a low drug? >> i would make a few points. statutorily, medicaid programs have the ability to set their preferred drug list. however, we have taken a couple of actions to try to address this issue. one, working with samhsa and others on the panel, put an informational bulletin to medicaid programs talking about this issue and a complete array of pain, both on the medication side the risks of methadone and the other options, and also, importantly, as others have said the importance of behavorial treatment and medication treatment. i also call out that our medicaid innovation accelerator program, the first area we are working on is substance abuse disorders. we have over 30 states involved and they're taking a comprehensive approach to the medicaid program to appropriate substance abuse treatment, including appropriate use of medications and also other therapies.

>> dr. conway, i appreciate it. mr. chairman, i yield back. >> mr. mckinley, a follow-up and i do. >> one of the questions or statistics i was giving in talking about perspective is the model or the situation that they're facing in europe. in europe the average is 21 per million. and i was just looking at -- i keep -- that's the average? italy, italy is below that. latvia netherland belgium, greece france, poland, portugal bulgaria, the czech republic slovakia turkey romania, all have less than that, significantly less. what are they doing right, what are they doing differently in europe than we are in america? are we learning anything from them? >> there's something we are doing very differently.

actually, you pick up exactly on the point. if you look at united states from some of the medications we may be consuming 95% of total production in the world. so the question is, are we a nation that is so much in pain that we require these massive amounts of opioid medications or is there something that we're doing in terms of their access to them that it's inadequate. i want again to reiterate the notion that yes, we are overprescribing opioid medications on the one hand, but at the same time, not exclusionary, sometimes we are undertreating patients with pain. so we are in a situation that we have it bad in both ways. we overprescribe making these drugs available which then can be easily diverted and prescribing them to those that don't need them can also result in adverse consequences. you don't see that level of prescriptions in none of the european countries. >> so what's the why not? what are they doing?

are their doctors more sensitive to this issue than our dock norse america? are they concerned about trial lawyers? what's the difference between it? there are 10 to 15 times more people dieing in america than there are in europe. something's wrong. they're doing something differently. i would like to know what it is. >> and that's exactly the way i said, we have to aggressively institute education of the health care providers on proper screening and management of pain. that's a crucial component while also educating them about the adverse effects as relates to substance disorders. and need to face the fact that we need to also provide with alternative treatments for the management of chronic pain that are effective. >> yield back. thank you very much for that. >> miss collins, you have a

quick question. miss brooks. i see collins name behind you. where am i going? >> thank you. actually, mr. botticelli mentioned in his opening, i wanted to have an unrelated follow-up, if i might mr. chairman. >> yes. >> you mentioned we are having a crisis in in, with respect in scott county, a community of 4300 people, an outbreak of hiv due to needle exchange, and would i simply like and i hope many of you have been following what has been happening and the number of citizens in indiana who now have contracted hiv because of their, in all likelihood, heroin addiction right? or prescription drug addiction and possibly heroin addiction as well. i am very curious since i have this incredible panel of experts

here what you might say to our state and to the health professionals, public health professionals, who are dealing with this crisis to our state and local government officials what advice and thought douse have for our state. truly, if we could, this is a crisis in our state that could be in any state in the country. mr. botticelli and then anyone else who might comment, please. >> yes. so, first of all, just about staff from all of the agencies on this table coordinate on a daily basis in tight coordination with the indiana health department to make sure we're giving scott county the resources they need to do that. >> i am sure dr. adams appreciates that. >> you're right. i think we are over 145 cases of hiv. one of the consequences we've seen nationally is increases in viral republic tights, ashepatitis

as it relates to sharing needles. and i think it also points to some issues that we need to include about access to treatment services. what's happening in indiana and scott county is emblematic of potential we could see in other parts of the country, but point to some issues we have been talking about today in terms of making sure that people have access to good care, both infectious disease and substance abuse. they have adequate access to clean syringes so they're not increasing infection in this most poignant case of what we need, and that they're having timely access to treatment services, all areas to do that. we will continue to engage with folks in scott county to make sure that whatever we can do on the federal side can help alleviate the situation. >> i would like to add to that i am proud of all the efforts cdc is doing on the ground in indiana in conjunction with agencies here. i agree completely with director botticelli about access to medication assisted treatment and hiv therapy. the other thing i would add is indiana is number nine in the

nation for prescribing. there's a lot can be done when you look at trying to stop the epidemic before it happens. looking at again, using prescription drug monitoring programs, having better prescribing guidelines, so people don't get addicted to opioids. then inject them. that's the third component we need to add. >> dr. volkow and administrator hyde. >> yeah. there's another -- i mean, we got caught by surprise with the indiana epidemic of hiv. i heard tom frieden say it is the fastest growing incidence of hiv cases since hiv entered the united states. but there's been extraordinary advance on hiv that emerged in the past two, three years, which is that if you initiate someone on anti-retro viral therapy, not only are you improving their outcome, but you're going

dramatically decrease infectivity. when you see a case, you immediately treat with antiviral therapy. they'll do better and their infectivity will dramatically decrease. so this is another aspect which relates to the issue, giving care to -- good infectious disease care jointly with intervention for substance abuse treatment. thank you. >> so i wanted to add, we are working collectively on this issue and we understand there may be legal barriers that we have been talking to indiana about in terms of developing opioid treatment programs and there's not a lot of waivered physicians able to provide buprenorphine. the closest treatment program is 40 miles away. there may be transportation barriers, cost barriers and other things. so we're collectively working with the state to try to develop alternatives. >> thank you, mr. chairman. >> two quick follow-up questions.

>> first, ms. hyde, last week the subcommittee heard testimony from the program director of the stamford university addiction medicine program that the 42 cfr part ii is an artifact of the past. two doctors seek to treat the same patient for opiate addiction can't communicate with each other. in fact, with the subcommittee report the rule was based upon a 1982 law and created havoc in the records. so she strongly recommended that we change that so we are not over prescribing people. and we know -- a physician knows the treatment. my understanding is that samhsa is contemplating new part 2 rules. i want to know if you're committed to the rules that reflect the concerns that have been repeatedly voiced by so many in the medical community who want nothing more than to make sure patients aren't given

double doses. is that what samhsa is going to be working on? >> i really appreciate that question because it is a complex issue. and you're right, the laws and regs are decades old, before we had electronic records and other things we're now considering part of practice. we, a couple of years ago put some some regulatory guidance to help the issue. but that wasn't sufficient. last year we held a listening session for stakeholders and have taken those pieces of input and are trying to balance the privacy concerns with the need for access to data. we hope that we will have something available for public input yet this year to try to address some of these issues. >> please let the committee know. thank you. and mr. botticelli i wanted to follow up on this kentucky drug court issue. could the drug court decisions relate to the diversion? at a previous hearing, we heard testimony that the mills are popping up in kentucky and wefrtst

virginia. and when entering the drug court system it's hard to determine when naloxone is from an illicit source or prescribed by a doctor. could this part of an issue that the drug courts could work and have some flexibility to deal with this on a case-by-case basis? >> i think there are a number of issues. the national association of drug court actually did a survey of drug courts in the united states. and for those drug courts that were not referring, it was actually more about judicial bias than fear of diversion that kept people from doing that. i think the second piece that any treatment, whether it's medication assisted treatment or residential treatment requires a level of collaboration and relationship between the court and the provider to ensure that courts who are referring to treatment, are referring to high-quality treatment. you know, we do need to pay attention to diversion and drug courts i think in combination with treatment programs can ensure that these are

appropriately prescribed and appropriately monitored medications. and they need to make sure that they're partnering with physicians who are implementing and dispensing medications in a high-quality way. >> part of this was an article that was mentioned talking about some of of these courts they're using vivitrol. and for people in and out of incarceration, trying to keep them off by maintaining vivitrol. they want to keep these people released from prison drug free. could you please clarify? are you saying that unless they have some synthetic opiates they're going to have federal funding cut or they can still maintain federal funding and vivitrol would be acceptable as another part of that program? >> so we don't dictate to drug courts what medication. that actually should be a decision between the treatment provider and the patient.

i think our work here was just to make sure there worn categoricical classifications for drug courts not to offer the medical assisted therapies. and if someone was on a recommended course of treatment, that they not have to get off the medication to do that. we actually don't dictate what medications courts use to be able to do that. i think like any treatment you want to have an arsenal of medications. >> dr. frank, could you respond to the vivitrol question, too? did you hear that? i'm just wondering if that is an option for states as a diversion to using vivitrol, that could be be part of what kobe microphone, please. >> i think that we are trying to have the full armor available to the treating providers, trying not to get between the provider and the patient as long as there's the opportunity to offer

the most -- the richest menu of evidence-based treatments that are available. >> a follow-up? >> mr. chairman mr. mckinney asked the witnesses what one thing you would recommend that we could do to try to start reversing this epidemic and this problem. he got as far as dr. frank when he ran out of time. so i just ask unanimous consent if we can ask each one of the other witnesses to supplement their testimony. they don't have to say it right now. >> get back to us. >> but if you could get back to us with that recommendation. we recognize there's a problem and we're really struggling with the issue of what we do as a congress to remedy it. thank you. >> and i think what you're also talking about, a partnership with the states says we should be looking at kentucky and others, indiana. >> indiana. >> colorado courts and see what else is going on. i want to thank this panel. we'll follow up with the questions. because we heard a number of recommendations from you. we will ask for more clarifications of this.

i want to thank you. as i said last time, too, you know, if this was about a single airplane crash the room would be filled with media. but we've had more people die in the last year from drug overdose deaths than the combination of every airplane crash in north america from 1975 to the present. and we have to make sure we keep this on the front page. this is a serious crisis whether it's education of physicians. mandatory education, whether it's options out there we want to make sure the evidence-based care that federal funding is going the right direction. i'd like to thank all the witnesses. i'll remind members they have ten business day to submit questions for the record and i ask that all of the witnesses agree to respond promptly to the questions. with that, this committee is adjourned. thank you.

coming up today on c-span road to the white house coverage starting at 1:45 eastern with hillary clinton as she making her first trip to south carolina. to speak to a meeting of the south carolina women's caucus and the south carolina women's council that starts at 1:45 eastern. also, rick santorum will announce his intention to run for president in 2016. the former senator will be making his announcement in the town of cabot, which is not far from where he grew up. it's 2012. it's live on the companion network c-span.

david mccullough on the wright brothers their quest for flight and wilbur's hockey accident that changed the course of history. >> it was the mystery of who it was that hit wilbur in the teeth with a hockey stick. knocked out all his upper teeth when he was 18. and sent him into depression and self-enclosed seclusion in his house for three years. he was not able to go to college which he had planned to do. he wanted to go to yale. instead, he stayed at home very seldom went out at all reading. and providing himself with a liberal arts education of a kind most people dream of all on his own. with the help of his father and the local public library. but it swerved as the path of his life in a way that no one had ever had any way of

anticipating. >> sunday night at 8:00 eastern and pacific on c-span "q & a." coming up next, a panel of military attorneys, professors and authors discuss war powers in the role of congress. this was part of an event hosted by the new york city bar association. >> good evening, everyone. my name is jonathan heyfits and i'm the chair of the city bar association task force on national security and the rule of law. and i'm delighted to be here tonight for this panel discussion, a president at war. examination of the war powers of the executive branch and the role of congress in authorizing

military operations. tonight, we'll discuss an issue that ig%

isis. so, anytime you talk about the justifications, legal justifications for use of that starts with the constitution. so congress the way the constitution divides the war

powers between the two primary branches of government operating in this area congress and the president, congress has the greater number of listed powers in this area. all right. they have one, the power to declare war. the power to grant letters of marquee. the power to grant defenses of law of nations. so they have a much greater list of national power that is relate to the national security area. as compared to the president, so his primary power in his area is the commander in chief clause. so it's very straightforward. says the president is the commander in chief, but doesn't give us any additional detail of what specifically that includes. so, we know most people are relatively competent, that it certainly includes some power to defend the nation. we get that the cases and the way the president has acted over the years since the founding of our government. all right. so that's his primary power. he also relies on a general foreign affairs power. now, there's no clause in the

constitution that says specifically the president will exercise foreign affairs. but we know he has the power to make treaties. we know he has the power to appoint ambassadors. from that, we derive the general idea that the president has the power to execute foreign affairs. that in of and of itself including some to use the military, all right. on top of that, you have the chief executive clause. the president is the chief executive, the vesting clause in 2. those are the ways the powers are laid out generally in the constitution. most people are relatively comfortable saying the founders probably intended congress to be much more involved in this area, particularly in war powers, than they are today, okay. the way it was originally drafted. but over time we've seen this evolution of power toward the president. why has that occurred? for several different reasons. primarily, the president is a

unitary actor right? he has the ability to act independently where congress has to muster the will of 135 people. that's a problem. they often can't do that. so what happens, through history, the president had acted. and congress where many of them may disagree with his use of power are unable to muster the political will to check him so that creates a precedent for future action. an example is libya. many congressmen spoke out against that, that the president was in violation of his war powers. yet, no action occurred to curb his activity in that case. so what we've seen over time is power evolving for the president. now, this doesn't mean that the congress is no longer important at all in this area, right? they still have a significant role to play. primarily, flowing from the idea that they are originally the branch of our government that is supposed to declare war.

now, we don't declare war anymore. that's become onbsolete since the 1940s. but we have modernization of that. there's definitely still a role for congress in determining when we use force. and the president is always on stronger ground if he can act consistent with congress, right? the president will often look to his commander in chief power to say, look i have the background to do this. in a particular instances, specifically, with isis, with 0a lot of our conflicts what is the statute that the president is relying. primarily, the authorization of military force 2001. this is the authorization that was passed right after 9/11. it is pretty broad power, but it's in specific regards to 9/11, right? so it says the president is authorizing all and necessary

and appropriates for against those nations, organizations or persons he determines planned authorized, permitted or aided the terrorist attacks that kurd on september 11, 2001. all right. so you can see the intent of congress in that language was focused clearly on the terrorist attacks of 2001. yet, the president has relied on that for many of the uses of force that they have seen over the last decade to 13 years for places like yemen and somalia. and specifically currently relying on that for use of force in iraq against isis. all right. so that's the basis for which he's currently relying. now, there's other options out there, the use of military force in 2002. that was specifically passes for our preparation of invasion of iraq in 2002. all right, so the problem with that however, it was specifically directed at the threat corrected by saddam hussein. so there's been talk that -- it says that the president can use

force to end threats coming from iraq, is the basic language of that amf. the problem with that, it's purely directed at saddam hussein. the threat isn't exactly coming from iraq. you can make the argument that it does apply. yet, the political implication is that would link with with those he's separated himself over the course of his political career. although that is thrown around, that does not seem to be the one the president is currently relying on for his use of force. all right. then, of course the problem with 2001 is aumf directed at those forces associated with 9/11 so is isis and its forces associated with 9/11? that's somebody problematic knowing that isis is linked with al qaeda but the administration would argue while isis directly

flows from academicl qaeda in iraq that we were fighting in 2003 so therefore, it san associated force. but you can see just from the language, it's kind of problematic. and we're now 15 years later and the president is still relying on at amuf for this use of force. that is what has led for the president to ask for a new amuf, an updated amuf. by the way the president made a speech a year or so ago, at the national defense university, before the conflicts with isis arose, he said look i, the president and future presidents need to stop relying on it. it can't last from 2001. it can't last forever. so he makes this speech and he's using this very same amuf to support the armed crisis conflict against isis. that's pushed or encouraged the president to ask for requests

this new amuf. it's got the specific language in it but language that kind of gives him interesting leeway that i think professor goodman will talk about. his proposed amuf says that the president is authorized subject to limitations to use armed forces of the united states as the president determines to be necessary and appropriate against isil or associated persons or forces. then you can go down farther in the amuf and has restrictions. the authority granted subsection 8 does not authorize use of u.s. forces during grounded operations that's an interesting term one that is not previously used in the legal documents. the idea what is an enduring offensive ground operation. and also, he additionally puts limitations on that saying the authorization of use of military force shall terminate three years after the david enactment.

unlike 2001 it doesn't have a specific date. this leads me to kieft final thing that i wanted to talk about from my perspective and that's the military operational perspective. so what is the military likely to think or what would be their role in the discussion of this amuf. speaking personally from the official position of the department of defense but i can tell you generally what the military wants in any military operation, is they want one clear objectives of what they're expected to accomplish. and two, they want operational flexibility. all right? so looking at this promed edpromised aumf, they can look at this because it's arbitrary. if you give the specific objectives how do we know they're accomplished in three years? and what if they're not? so i can imagine that i can say

it's likely the leadership in the department of defense will not participate in the proposed debate of when this proposed aumf would not be passed to go against the idea of civil government in charge of our military. as a cultural matter general the military leadership doesn't participate in this kind of open debate in the public whether we should accept his aumf or not. what they are doing behind the scenes both with members of congress is talking about operational flexibility. and concerns of no enduring offensive ground operations is a potential limitation on the military. and more specifically, probably, they are concerned about this idea of a three-year limitation. all right. so my sense is that the impact that will have, it will just make this harder for this to go forward, all right? because if the military leadership is both telling the president they're concerned about this and maybe the president says, okay i've got

it. this is still important to me for various reasons but they're also probably talking with congress saying this is the problem or concerns we might have. and certainly that's going to influence some members of congress. and may influence this as to whether this goes forward or not. so those are the operational theories. and that's the general layout. i think with that, i want to turn it over to professor goodman. and i think he'll talk more specifically about the aumf. >> there's an area that makes my job easier what i did think i would do is drill down deeper on the aumf and concerns of how it's structured and how it's designed. just to give us a sense where we're automatic currently in terms of what's happening on the hill and why we're at this point. two things to think about one is drilling down on the concerns that the 2001a umf doesn't really authorize current operations ongoing in syria. there's been bipartisan

statements on the hill especially when representatives from the administration come before congress, saying you know, we really around buying this theory that isis is somehow underneath the 2001 amf, in part because it was about the attacks in 9/11. the government's argument, just so we're clear about this is not what some people think which is the notion that isis is an associated force in al qaeda central but, rather that isil is a successor of al qaeda. so that helps in some respects because the administration says well, even if there's fighting between the two groups, it doesn't matter because we're not saying they're in association with each other in a battle against the united states. rather isil was diseffective from al qaeda central, breathe apart. and now an independent group that they've kind of taken the mantel, and they in fact think and say that they are the true inheritors of osama bin laden's

campaign. that's the argument. but it lacks support. i think it's incredibly weak. partly because one presumption was that they were ever truly unified. the intelligence committee was a little unclear even in the first years in 2003 when united states was fighting al qaeda and iraq, what the relationship exactly was because al qaeda and iraq was not exactly following the command and control from al qaeda central from afghanistan and pakistan. there's a lot of infighting until they finally broke apart. some people were saying what about the name? it was called al qaeda in iraq. there was a name that the coalition forces ascribed to them. some say ascribed to them in some sense, to try to tell the public that these groups were related with saddam hussein and the situation in iraq related to 9/11 and afghanistan and pakistan. but that was our u.s., multinational forces application of the name to the organization. so there's one open question

empirically, were they ever truly unified until they broke apart? and the second, their structural or organizational goals so did they have the same organizational goals as al qaeda. one of the reasons they stood apart, isil had local and regional ambitions. they didn't pose a threat to homeland as the president said. there's been no evidence of imminent or likely threat to the united states from isil. isil with the group in iraq, when the u.s. withdrew from iraq then they stopped attacks against u.s. forces in ramadi. so a long period of time, in which there was no real threat, even to the point in summer of last year the white house had sent a letter to speaker boehner, saying we no longer need the 2002 amf because there's not a threat coming out of iraq. no indication that there was a

posed risk. some say the beheadings of american journalists started happening after the u.s. started its air campaign not before. so it can be a justification for the air campaign if there was actually response there. so there's this inherent weakness to the successor model which nobody heard before. and the concerns about the relationship organizationally between isil and al qaeda central and their organizational goals, as to whether or not they really have split apart and still fighting the fight against the united states. with that then the concern is that if the president's not acting under an existing statutory authority then he's not acting with congressional support. everything that colonel narramore had said, a constitutional legal matter. i would imagine troops on the ground don't just want operational flexibility but also want to know that the american congress is behind them. some statements being made by

members of congress, senator mccain made it this week, how can we have people sacrificing their lives in iraq and syria in the u.s. armed forces and congress isn't doing its job, which to come forward and actually vote on this authorization, design it how they see fit to give that kind of support and approval to the president's operations. so recently on the hill, just in the last 24 hours apparently, there's a letter circulating. it's circulating on behalf of the republican and ranking republican on the house committee, representative adam schiff and deputy representative tom cole, asking boehner to please put this to a vote so that congress can actually step up. and i think that kind of goes to the question is that we have for us tonight, on this panel. and it's kind of an important quote i'd like to kind of take out of that letter, where they say, quote each additional day that passes without congress taking up an amf or operations against isil undermines our

authority and role in matters of war and peace. if we refuse to debate the question on the weightest question that our nation faces we cede to the power. that operates behind the scenes as to whether or not we'll even see action by the white house on the proposal. the first one i just want to highlight is the definition of associated forces. so for the first time what the white house wants, is congress to actually ratify codify not just with one entity isil but whatever the associated forces are. currently, the united states operates under the framework, under the 2001 aumf, it might be with al qaeda and the arabian

peninsula in yemen, but that's an interpretation that the administration has given. the words associated in that sense to appear in the 2001 amf. it would codify an existing practice by the administration. one thing that's remarkable is a conspicuous omission of an element of the test for associated forces. so the united states has been operating for several years, what jeh johnson, the former general counsel of department of defense said, the definition of associated forces, which says other organizations that join the fight alongside the principal group, similar to the way co-belligerence, the terminology used co-belligerence, that they did in world war ii. japan strikes the united states in world war ii and then italy. the battle. and it gives justification to

why united states is in conflict with al qaeda. and then another operation out of yemen that joins the fight but what is absent with the white house proposal is the term "co-belligerencey "co-belligerency." so dropping that out draws the suspicion of wait a minute, that's the level, how can we take that out? congress hasn't asked that question, so it would be multiple hearing, but i've never heard that question come from a member of the house member of the senate. in fact what the administration has said without this co-belligerency test, i think it's concern for a slippery slope. what they said before the committee last month, it might apply to isil wannabes. wannabes. so organizations which stand up and vote on the idea of flying the isil flag, it might be connected in a co-belligerency, cooperating with isil just an organization that might pop up

in other countries libya lebanon, nigeria, and usurp that they're operating under the brand of isil. and the second concern is even if you apply to the same test that you apply to al qaeda isil is not like al qaeda. so i'm at some sense with peace with the way the administration has used the associated forces test over the past 14 years, it's fairly narrow. steven press and general council a couple weeks at the meeting of international law annual meeting. for the first time, exhausted an exhaustive list of the organization that the united states krsconsiders to be an exhaustive force. i'd say is fairly narrow. they were kind of a vanguard movement. isil is considered to be more of

a populous movement. which they basically say lone wolfs that want to stand up against isil they can. and it's a much more open-ended, it really does mean there are a bunch of other organizations, forces and individuals that might associate with them. the last point i'd want to just put under the category of associates forces is the following kind of thought. i think it's sure that congress isn't going to enact an operation against isil. the administration has said it actually doesn't need the isil authorization. it's almost redundant. but they would like congress' buy-in. if congress doesn't do, they say they already have the authority under the 2001a mf. if that's so i assume they're operating without the co-belligerency test to isil.

so status quo is not something we need to worry about for the draft language but in the status quo, you want to know the justification for can they apply forces and the like, do they in fact use the jeh johnson standards. the second point that i wanted to highlight is also something colonel naramore touched on the sunset clause. one, i wouldn't call it a termination date the idea is that not that necessarily they will terminate. it's the idea that congress will get the second vote. the thought that if there's a three-year time frame, three years from now, congress should be back at the table reauthorizing and tailoring the authorities according to what the situation is at the time. some say that congress shouldn't be involved because isil morphs, and these organizations change rapidly. that's why congress shouldn't authorize according to particular associated forces and the like.

i think the fact that the organization morphs and the conflict is almost unpredictable to the degree to whichit morphs added a degree for why we want congress back at the table three years from now. and that's another indication of how to get congress and the american people behind the justification. and the american forces would know that they have the public behind them. one argument against having sunset clause it sends a signal of weakness for our enemies. they think we're only in it for three years. my thought is, that if we say we are afraid to have a re-up in three years' time, that sends a signal of weakness that we're not sure we'll follow through. in fact, just to kind of wear another hat, jonathan mentioned some of my social science work, my other hat is in social science. this great political science scholarship, empirical studies that argue and have a finding democracy more effective than

nondemocracies. part of the understanding when you have democratic checks and inclusion in war fighting that actually sends a stronger signal to the enemies because you have to justify your actions to your public and then actually build support. so there's actually good political science evidence that says the more democratic states are in which they weigh wars we also think it's important because it requires members of congress to justify to themselves, inform themselves and then inform the public as to why the war is justified. the last point just to put on to that one is that there's a curiosity in the white house's isil amf. it does set the authorities for operations against isil three years from now. but it says as colonel narramore said about the 2001 amf.

to me, it's illogical for the following reason. if the united states administration currently says it's operating under the 2001 amf and it doesn't need any authorizes. and then we put on top of that isil amf tour three years. let's say it terminates for three years. then the white house can say they will go back to the 2001 amf. it kind of defies logic. what's the purpose of a sunset for three more years? the best answer seems to be you that need to have a sunset for both. in in respects or sunset for neither. the last thought is whether or not it's appropriate to have some kinds of a sunset on authorization for force. authorization for war. the parting thought i want to get to that is this suggests it's actually a part of the dna of our constitution. the thought here is that we in some ways already have sunsets on all authorizations to use force.

it's in appropriations clause of the u.s. constitution. article i of the u.s. constitution has a requirement in it that congress cannot appropriate funds for longer than two years. and hamilton actually writes in 26, that the purpose behind that was to have buy-in from the congress, at least every two years. somewhat part of that structure that we work with this understanding that we want congress at the table. i think we've kind of lost that sensibility. and it's kind of time to re-engage with it. >> yeah thanks to jonathan and the city bar for inviting me to join this very interesting and important topic. and join this panel on this interesting and important topic and for all of you for trekking out here in such great weather to come to listen to us talk about this. i want to take sort of a step back and look the at this same issues that colonel narramore

and professor goodwin discussed from a broader perspective and constitutional perspective to indicate where we are from broad constitutional perspectives, and then come back to some of the more technical detailed issues that professor goodman just addressed. it's also, believe it or not, it's campaign season for the 2016 presidency already. and so, it's also worth thinking about where are we going forward with this? what are the candidates and the future administrations -- what will their likely perspectives be on the allocation of war powers in these various scenarios that we've been discovering. so i want to open with a quotation from someone who is both an educator and teacher in law. barack obama. he says the president does that have the power under the constitution to unilateral

authorize military in situations that does not involve stopping a natural stop of the administration. that's from the 2008 obama and not the 2015 version. in this, i'd argue candidate obama's viewpoint in 2008, while he was a candidate, which i call the congressionalist view of war powers is incorrect. and the strongest evidence he offered a strike congressionalist view. this is important for setting the precedence both for the debate currently over the isis and the 2001 amuf. and also trying to understand as we go forward the powers in the constitution. let me begin by just outlining

what i -- building on what colonel narramore explained what i called the two views of how war colonel outlined, want to give a little more detail to it. i'm going to call the two views congressionalist view and presidentialist view. the congressionalist view reads the constitution as allocating the primary decision on the use of any military force to congress. the constitution text does allocate many more powers over military foreign affairs of congress than the president and so the main basis for this congressionalist view is in fact the text of the constitution. congress to declare war and make rules governing those forces. in a congressionalist view, they have the primary responsibility to manage all aspects of the arm forces of the united states, including the ultimate decision whether to use the armed forces of the united states in some sort of military action or armed conflict.

many appearance, not just 2008 president obama -- 2008 candidate obama but many legal scholars such as john hart -- to classes with -- at yale. now, the opposition of the presidentialist view which holds that the president has an independent and inherent power to deploy american armed forces in a war conflict even without a specific congressional authorization and offers a different reading of the constitution which the colonel alluded to and emphasizes the as the holder of the executive power and as the commander in chief of the u.s. armed forces. now, holds the power to initiate armed conflict and exclusive power to fund the u.s. military.

but it holds the commander in chief power and gives the president the decision when and how to use the armed forces, including in an armed conflict. a declaration of war, primarily serves to give formal notice and as an enemy under international law such as seizing of property and such. that is not about controlling whether or not military force was used by the united states. now, the presidential view also enjoys support of this legal scholars -- perhaps not as many as the first view but will argue a lot of support in the practice of presidential administrations throughout u.s. history. as a tactical matter, the view is not as large as it seems, even the most extreme congress has exclusive power to fund or

not fund the military actions and even the most extreme congressionalist can see the constitution should be read although it doesn't say specifically, should be read to allow the president to respond to an actual or imminent attack without going to congress. but the difference between the two views boils down to this, according to congressionalists, the president may not use force without a specific authorization from congress unless the u.s. is under imminent attack. presidentialists argue that the president can choose to use armed force in a wide range of circumstances if necessary to further the national security interest of the united states even in the absence of an item or imminent attack. so this leads me to my second point. while president obama campaigned fairly described as a congressionalist, he is pretty plainly embraced the presidentialist view in his administration's defense of military actions especially in libya in 2011.

so as they discussed, the main military action of the united states is involved in during president obama's administration have been actions in iraq and afghanistan, both of which had specific authorizations by congress. but in 2011 when the united states and allies intervened in the civil war, there was no authorization and president obama did not seek an authorization from congress. his department of justice issued a legal opinion which rejected the congressionalist view and defended the libyan action as a constitutional exercise of the president's inherent powers to use military force. it does not -- worth noting this did not claim the libyan civil war in any way constituted an actual or imminent threat to the united states. but in this opinion, assistant attorney general argued that the

libya actions were unconstitutional even without congress -- specifically rejects the congressionalist view, arguing defense of the united states to direct a immediate attack is by no means the president can use military force without congressional authorization. accordingly the absence of and self-defense interest does not mean the president lacks authority from military operations in libya. the opinion went on to say to protect u.s. national interests such as preserving regional stability and supporting united nations security council credibility and effectiveness. libya is not the only case departing from the view. in the fall of 2013, president obama announced he would seek support from syria in response to evidence that syria was using chemical weapons in a civil war but making his statement that he

was seeking congressional support, president obama careful to state that he believed he was already possessed of constitutional authority to strike syria for the use of chemical weapons whether or not congress gave him authorization. and a similar posture has been taken in current discussions over the action against islamic state in syria and iraq. in fact, last summer initially the administration suggested it could justify the use of force some of the uses of forces in iraq under the president's inherent powers. one example that stood out, the president's action to protect an ethnic minority trapped on a mountain in northern iraq, which was surrounded by isis forces. this again at that time, they thought was sort of no arcticulation of a justification of the 2001 aumf but there was humanitarian justification linked to president's inherent power under article 2 of the constitution.

and so, the president has ee involved to the legal condition to embrace the 2001 authorization for the use of military force but as professor goodman both suggested, a very difficult legal argument to support. but i do suggest that's one of the reasons why there's argument that has not ruled out it does have authority under the u.s. constitution article 2 separate from the 2001 aumf, but clearly sought authorization from congress, not ruled out the possibility that article 2 can -- provide legal justification for some of the actions currently taking against isis. i'll argue that the rationale for the 2001 libya intervention is still out there and can support i think given the language of that opinion a constitutional basis absent dongal authorization at all, a constitutional basis for u.s. actions against isis.

>> so let me just conclude by with a third point, the defense of president obama's conversion from congressionalists to the presidentialist view, even though i think we can see there's a solid strong textural and historical basic for the congressionalist view, i offer three reasons why i think it's not the best reading today of the constitution's allocation of war powers. i don't think that the textural historical case for the congressionalist view is -- well documented, had some doubts about given the power to congress and so that's why the initial drought for the constitution changed from make war to declare war. so the record remains a little bit murky. and second i think historical since 1989 weighs heavily in favor of a presidentialist view, only used the declare war times

five times and specifically authorized use of military force a few more times than that. meanwhile depending on the account, military force abroad without congressional authorizes and submitted 215 times. mostly and usually without congressional authorization and many of these actions range from very small actions such as invasion of panama in the 1980s to large actions such as the korean war or action kosovo in 1989. historical record at least shows that the main actors who interpret and apply u.s. constitution, the congress and president do not necessarily embrace in some cases have rejected the strict congressionalist view that candidate obama expressed in 2008.

i think that is a functional as a practical matter complete adherence seems impractical and unwise given the position of the united states today as the world's largest military power and economic power. the u.s. has national interest in almost every corner of the globe -- and more weapons than any other world power. i sheer variety of possible military conflicts for the u.s. of military force for combatting terrorists and shooting pirates to prevent the could tras toe fees and other powers seems to support the idea that the strict congressionalist view is not practical. even with we abandon the view, there's still much room for debate over the exact scope of the president's independent