Attorney general opinion says used syringes aren't necessary in needle exchanges

12/21/2015 01:25 PM

UPDATED: Kentucky health departments operating needle exchange programs, legalized this year in a law aimed at curbing heroin abuse and its effects, are not required to establish a “quid pro quo exchange of syringes,” according to an opinion issued by Attorney General Jack Conway’s office on Monday.

The opinion comes amid questions of a syringe program run by the Louisville Metro Department of Public Health and Wellness, which does not require participants to bring in used needles in exchange for new ones. Senate President Robert Stivers, who has been critical of the Louisville exchange model, requested the opinion, written by Assistant Attorney General Matt James.

Needle exchanges, which are seen as a preventative tool against the spread of blood-borne illnesses like HIV and hepatitis C among intravenous drug users and those who come in contact with contaminated syringes, were among key points of contention between the state Senate and House in cobbling together anti-heroin legislation.

James wrote that Senate Bill 192 allowed municipalities to authorize needle exchanges as part of a substance abuse outreach program, but the word “exchange” was not defined in that section of the law.

From the opinion:

The term “exchange” requires a transfer of interests in consideration for each other, but the interests exchanged need not be an exact quid pro quo. Rather, a benefit to the party promising or a loss to the party to whom the promise is made is sufficient.

As applied in this context, “exchange” does not require a quid pro quo exchange of syringes; it only requires a benefit to the party promising or a loss to the party to whom the promise is made. A (harm reduction and syringe exchange program) may exchange the loss of a needle for a promise to participate in the program, and that is sufficient for an exchange in the ordinary sense of the term. Receipt of a used syringe in return is not expressly required in the language of KRS 218A.500(5), and “in determining legislative intent, we must refer to the language of the statute and are not at liberty to add or subtract from the legislative enactment or interpret it at variance from the language used.”

Stivers, R-Manchester, did not immediately return a request for comment.

The Kentucky Department for Public Health offered guidance in May to local departments looking to start syringe exchange programs, outlining models that included a strict one-for-one; one-for-one plus, which allows participants to receive more than one clean syringe for every dirty one returned; and needs-based negotiation, which allows the distribution of new needles regardless of how many used ones participants return, according to the opinion.

The Louisville exchange is based on the needs-based negotiation model. A program in Pendleton County also utilizes the needs-based model until the participant’s third visit, when exchanges are handled on a one-for-one basis, and Lexington’s syringe exchange requires participants to bring in used needles for clean ones but is not a strict one-for-one exchange, according to the Cabinet for Health and Family Services.

Dr. Sarah Moyer, interim director of the Louisville health department, said in a statement that the program has helped direct those who test positive for hepatitis C to treatment and referred 93 participants to drug treatment since opening. Fifty-two individuals out of 86 tested were hepatitis C positive while none of the 156 tested for HIV were positive, according to figures from the agency as of Nov. 21.

“The ‘need-based negotiation model’ is a best practice across the country proven to reduce the spread of HIV and hepatitis C,” Moyer said in a statement. “Our goals are to prevent the spread of those diseases in our community and to stop people who inject drugs from sharing and reusing needles. The program is working.”

Sen. Whitney Westerfield, chairman of the Senate Judiciary Committee and a member of the SB 192 Implementation Oversight Committee, said in an interview that he never envisioned an exchange like Louisville’s as lawmakers cobbled together a compromise version of SB 192.

The Hopkinsville Republican said had he been aware that a city or county planned to operate an open-ended syringe exchange program in Kentucky, “I think we probably would have seen language requiring an exchange before the bill passed.”

“My legislative intent and the legislative intent of a number of others was that there would be an exchange of some kind, not an open-ended, show up empty handed, walk out with needles sort of thing,” Westerfield said, noting that cutting the number of stray, potentially contaminated needles was key in building support for syringe-exchange programs.

When it first launched in June, the Louisville exchange handed out more than eight clean needles for every dirty one collected in its outreach program, which includes disease testing and information on addiction treatment. As of Nov. 21, the Louisville health agency reported the ratio down to just more than two new syringes for every used one submitted.

“The whole point is to get dirty needles off the street, not just clean needles in the hands of addicts because that’s part of the point too, but to get dirty needles off the streets and avoid needle sticks and to avoid people seeing them or finding them out in places,” Westerfield said, calling the Louisville exchange’s 2-to-1 ratio “not acceptable.”

But Rep. Joni Jenkins, the only House Democrat on the SB 192 oversight panel after a defection and an appointment, said in a separate interview that the syringe exchange model adopted in Louisville reached a population of addicts that might have relied heavily on shared needles or reused the same syringe repeatedly.

Keeping language in the bill open-ended allows cities and counties to craft a program that will meet their communities’ specific needs to combat intravenous drug abuse, she said.

“Logically you’d know they don’t have enough needles if they’re sharing them,” said Jenkins, D-Shively. “So providing them with the correct number of needles for their usage, knowing that you’re getting them to come back again and again, studies have shown us that those folks will eventually turn to treatment, and that’s the whole point of it.”

Changes may be proposed in the upcoming legislative session, set to gavel in Jan. 5.

Westerfield said he personally would not file such a bill, but he can see legislation coming that would specify guidelines for exchanges.

He declined to speculate on whether he would support such a bill or its chances in the legislative process.

“I will consider a bill that requires a one-for-one exchange or a bill that puts that language specifically in statute, but I’d also be open to hearing what data the Louisville facility has,” he said.

Jenkins said she believes any bill requiring one-for-one syringe exchanges would not fare well in the House.

“I don’t think that the House is going to want to tamper with what I consider really good legislation,” she said.


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