Federal Legislation – Congressional Recess Ends; PORAC Meets With Lawmakers

Darryl Nirenberg
Eva Rigamonti
Cameron O’Brien
Legislative Assistant
Steptoe & Johnson LLP

The August congressional recess, the month when lawmakers go home to their districts (and a time to which Washingtonians look forward for 11 months of the year), was not as quiet as anticipated.

In early August, the United Nations Security Council voted unanimously to adopt a resolution imposing additional sanctions on North Korea in response to that country’s growing missile and nuclear weapon program. A mere two days later, North Korea announced, “We will make the U.S. pay by a thousand-fold for all the heinous crimes it commits against the state and people of this country.”

News outlets subsequently reported that U.S. intelligence agencies had determined that North Korea possesses the ability to successfully shrink a nuclear warhead to fit on a missile, a major step in the nuclear missile process. In response to this news and North Korea’s threats, President Donald Trump stated, “They will be met with fire, fury and, frankly, power — the likes of which this world has never seen before.”

On the domestic front, the nation was shocked when an August 12 Unite the Right march of white supremacist and other hate groups (neo-Nazis, the KKK) in Charlottesville, Virginia, escalated into riots between these groups and counter-protestors. After the Governor of Virginia declared a state of emergency and the city of Charlottesville declared the march an unlawful assembly, state police and members of the Virginia National Guard surrounded the park where the demonstration was scheduled to take place. Despite these actions, at least one woman was killed and more than 19 others injured when a white supremacist rammed his car into a group of people protesting the white nationalist rally. The Federal Bureau of Investigation and the Department of Justice have opened a civil-rights investigation to look into the crash. In addition to the civilian death and injuries, two Virginia State Police officers were killed when the helicopter they were using to monitor the riots crashed.

PORAC Back in D.C. This Month to Advocate for Law Enforcement

A number of PORAC members will be in Washington, D.C., this month meeting with lawmakers and government officials to discuss the group’s federal policy priorities. The fly-in comes at a time of heightened activity in the nation’s capital, with debates on health care, the budget and foreign conflicts demanding the attention of Congress.

PORAC plans to remind lawmakers that despite the magnitude of problems on the national and international level, America’s success, stability and safety depends in large part on the well-being of its cities and communities — which, in turn, are able to thrive only when local law enforcement agencies have the support and resources necessary to carry out their duties. This message is particularly important because although the House is scheduled to vote in early September on the Commerce-Justice-Science (CJS) appropriations bill — the legislation that funds the Department of Justice and many law enforcement programs — it is unclear when the Senate will take up its CJS bill, which many expect may just be rolled into a larger funding package at some point in the fall. More information on PORAC’s fly-in will be provided in next month’s column.

DOJ Announces New Program to Combat Opioid-Related Health Care Fraud

On August 2, Attorney General Jeff Sessions announced the rollout of a pilot program administered by the Department of Justice (DOJ) that will focus on combating opioid-related health care fraud. The Opioid Fraud and Abuse Detection Unit seeks to use data analytics to identify and prosecute individuals participating in such fraudulent activities and, in turn, perpetuating the opioid abuse epidemic that has hurt countless individuals, families and communities across the country.

This is the latest federal effort to combat the opioid crisis rocking the nation. Most recent statistics indicate that drug overdose deaths continue to soar above historic numbers. More Americans under age 50 die from drug overdoses than any other cause. Almost 100 people per day die because of opioid overdoses and/or related complications. Experts estimate the opioid epidemic alone could claim nearly 500,000 people across the country in the next 10 years. To put that in perspective, the projections indicate that over a 10-year period, opioids could kill more people in the United States than HIV/AIDS has killed since the 1980s.

Experts agree that one significant cause of the opioid epidemic has been American physicians’ prescription and pain management practices. For that reason, Attorney General Sessions explained that by analyzing data on opioid prescriptions, the DOJ team will be able to detect certain trends in this area, including “which physicians are writing opioid prescriptions at a rate that far exceeds their peers; how many of a doctor’s patients died within 60 days of an opioid prescription; the average age of the patients receiving these prescriptions; pharmacies that are dispensing disproportionately large amounts of opioids; and regional hot spots for opioid issues.”

This analysis will inform the efforts of 12 selected United States Attorney Offices tasked with investigating and prosecuting opioid-related health care fraud. One of the offices chosen to participate in the program is the Eastern District of California, which encompasses Calaveras, Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare and Tuolumne counties. These prosecutors will work with state and local law enforcement agencies as well as the Federal Bureau of Investigation, the Drug Enforcement Agency, and the Department of Health and Human Services to root out the health care professionals who are contributing to the crisis by enriching themselves at the expense of public health and safety.

Attorney General Sessions stated that although the fight against opioid abuse will require a multifaceted approach of prevention, enforcement and treatment involving the cooperation of various entities, he is “convinced this is a winnable war.”

Soon after Sessions announced the establishment of the Opioid Fraud and Abuse Detection Unit, President Trump said that he would be taking steps to officially declare the opioid abuse epidemic a “national emergency.” The move toward this designation aligns with a recommendation from the White House’s Opioid Commission, formed earlier this year and led by New Jersey Governor Chris Christie, which called on Trump to make the national emergency declaration.

National emergency designations related to public health and safety are typically reserved for short-term crises such as natural disasters and contagious disease epidemics, so it is unclear how the designation will support the Trump administration’s anti-opioid abuse effort. At the very least, the national emergency declaration would likely allow for specific funding and regulatory waivers that could enhance and expand addiction prevention and treatment programs.

Sessions Implements Immigration Compliance Requirements for DOJ Grant Recipients

On August 3, the DOJ indicated it was looking at criteria relating to localities’ immigration policies, with regard to whether or not the Department would distribute funding under its new Public Safety Partnership (PSP) program. The PSP program, which was announced in June, is funded through the Edward Byrne Memorial Justice Assistance Grant program (Byrne-JAG) and aims to help local agencies better address violent crime in their communities through training and technical assistance.

To be eligible to receive funding from the PSP program, local jurisdictions need to 1) demonstrate a commitment to reducing violent crime; 2) have sustained levels of violence that exceed that national average; and 3) be ready to receive the DOJ training and technical assistance offered through the program. Twelve jurisdictions received PSP funds during the first round of awards, and the DOJ is currently reviewing applications from a number of jurisdictions that are seeking grants in future rounds.

Two such jurisdictions in California, however, the cities of San Bernardino and Stockton, recently received letters from the DOJ in response to their applications for PSP grant funding, requesting a reply to questions related to their illegal immigration policies.

The letter asks whether the jurisdictions have policies in place that ensure that:

1)  U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien and inquire as to his or her right to be or to remain in the U.S;

2)  The jurisdiction’s correctional and detention facilities provide at least 48 hours’ advance notice, where possible, to DHS regarding the scheduled release of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien; and,

3)  The jurisdiction’s correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date in order to permit DHS to take custody of the foreign national.

San Bernardino and Stockton were two of just four jurisdictions nationwide — including Albuquerque, New Mexico, and Baltimore, Maryland — that received such letters. The DOJ is expected to announce the second round of PSP awards later this year.