Call to Order and Roll Call
The 1st meeting of the SB 192 Implementation Oversight Committee was held on Friday, June 26, 2015, at<MeetTime> 10:00 AM, in Room 131 of the Capitol Annex. Representative Denver Butler, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Christian McDaniel, Co-Chair; Representative Denver Butler, Co-Chair; Senators Morgan McGarvey and Whitney Westerfield; Representatives David Floyd, Joni L. Jenkins, and John Tilley.
Guests: Dr. Rice Leach, Lexington/Fayette Health Department; Leigh Ann Roberts, Office of the Commonwealth’s Attorney; Dave Roberts, Kentucky State Police; Jennifer McMinn and Donald Davis, Volunteers of America; Harold Tomlinson, retired County Judge; Steven Kelley, Office of the Commonwealth Attorney; Jim Baiting, Transitions, Inc.; Joan Arlinghaus, PAR; Russ Read, Kentucky Harm Reduction Coalition; Stephanie Stidham, Louisville Criminal Justice Commission; Becky Smith, UofL Kent School; Steve Florian, Eva Hager, and Daniel Schubert, Kentucky Department of Public Advocacy; Susan Ely, Jefferson County Attorney’s Office; Andrea Renfrow, Bullitt County Health Department; Jason Merrick, People Advocating Recovery; David Waters, Crossroads Counseling; Kraig Humbaugh, Kentucky Department for Public Health; Kay Combs, PAL, Scott County; Steve Durham, LMDC; Laura Woodrum, LCDHD; Keith McKenzie and William Gillen, GLCC.
LRC Staff: Alice Lyon, Jon Grate, Sarah Kidder, Jonathan Scott, Cindy Smith, Matt Trebelhorn, and Miranda Deaton.
Implementation of SB 192 Appropriations Authority
Secretary J. Michael Brown, Justice and Public Safety Cabinet said that Senate Bill 192 (SB192) from the 2015 Regular Session of the General Assembly gave the Secretary of the Justice and Public Safety Cabinet express authority to determine the distribution of up to $10 million for programs to combat prescription drug and heroin abuse in Kentucky. He reported that in 2014 for KSP laboratories, testing for heroin represented 17 percent of the crime labs’ load. For the Northern Kentucky crime lab, that number was 40 percent. The Jefferson County lab was 27 percent for heroin.
The following are the recommended proposed funding levels from SB 192: up to $1 million for substance abuse treatment in jails or detention centers that employ evidence-based practices in behavioral health treatment or medically assisted treatment for non-state inmates with opiate addiction or other substance abuse disorders; up to $500,000 for KY-ASAP programs operating under KRS Chapter 15A in county jails or in facilities under the supervision of county jails that employ evidence-based behavioral health treatment or medically assisted treatment for inmates with opiate addiction or other substance abuse disorders; up to $1.5 million to purchase an FDA-approved extended-release treatment for the prevention of relapse to opiate dependence with a minimum of 14 days effectiveness with an opioid antagonist function for use as a component of evidence-based medically assisted treatment for inmates with opiate addiction or substance abuse disorders participating in a substance abuse treatment program operated or supervised by the department; up to $2.6 million for KY-ASAP to provide supplemental grant funding to community mental health centers for the purpose of offering additional substance abuse treatment resources through programs that employ evidence-based behavioral health treatment or medically assisted treatment; up to $1 million for KY-ASAP to address neonatal abstinence syndrome by providing supplemental grant funding to community substance abuse treatment providers to offer residential treatment services to pregnant women through programs that employ evidence-based behavioral health treatment or medically assisted treatment; up to $1.2 million to the Department for Public Advocacy to provide supplemental funding to the Social Worker Program for the purpose of creating additional social worker positions to develop individualized alternative sentencing plans; up to $1.2 million to the Prosecutors Advisory Council to enhance the use of rocket docket prosecutions in controlled substance cases; and up to $1 million to provide supplemental funding for traditional KY-ASAP substance abuse programming under KRS Chapter 15A.
Secretary Brown said the State Budget Office will transfer the funds to the Justice and Public Safety Cabinet for distribution. Some of the funds will be distributed as early as the first week of July.
Kevin Pangburn, Division of Substance Abuse, Department of Corrections (DOC) discussed substance abuse programming. He reported that in 2005 jails and prisons combined had 475 treatment beds, whereas there are 3490 beds in 2015. Twenty jails or detention centers substance abuse programming in-house with 985 beds for inmates. The Department contracted with 14 community mental health centers for 1400 out-patient treatment slots, providing coverage in all counties of the state, with 525 slots contracted for out-patient programs in metropolitan areas.
Mr. Pangburn also said that the DOC monitoring process identified a need for increased jail substance abuse treatment slots for the male population. DOC will create 200 additional jail substance abuse treatment beds with SB 192 funding, serving approximately 400 additional inmates annually.
Secretary Brown said many portions of the bill direct funding to KY-ASAP for distribution to community mental health centers and other providers. The Cabinet will disseminate all the funding opportunity announcements for all the individuals that provide these types of services. There will be an open invitation to submit proposals. The Cabinet will also hold an informational webinar for the eligible provider organizations, and a multi-tiered application review and selection process.
In response to a question by Representative Butler, Secretary Brown said his agency will receive the funds the first week of July and will be able to turn some around rapidly. Some will require an application process and that will go as quickly as possible.
In response to a question by Senator McDaniel, Secretary Brown said most of the individuals that need to be on the distribution list are well known to the Cabinet. If there are others that want to be included, those individuals need to contact Secretary Brown’s office, or the Office of Drug Control Policy.
In response to a question by Senator McDaniel regarding funding for relapse prevention medications like Vivitrol in correctional facilities, Secretary Brown said both jails with and without in-house substance abuse programs will have access to the medication program.
Senator McDaniel emphasized the importance of the programs in Northern Kentucky. He also said it is important that there is not a lapse as individuals transition from jails into Medicaid and other programs.
Representative Butler commented that continuity of care is a re-occurring theme not just with Corrections, but with medical care, and pregnant mothers.
Representative Jenkins said that she recently spoke with the Virginia Medicaid director. Virginia recently changed from a state that terminated Medicaid when a client was incarcerated to a state that suspends it, and has already seen successes in connecting people to substance abuse treatment at the point of release from incarceration. She encouraged the committee to look further into that issue.
In response to a question by Representative Floyd regarding Vivitrol funding, Secretary Brown said an Administrative Office of the Courts’ pilot project provided the first dose of Vivitrol to those under drug court supervision.
Authorization and Implementation of Needle Exchanges
Scott Lockard, Director, Kentucky Health Departments Association and Director, Clark County Health Department said the Health Departments have done a lot of work since the passage of SB 192 regarding to implement the component allowing participants to exchange needles and syringes. The Department of Public Health put together a statewide workgroup to look at best practices across the nation. A key component of the bill was giving local control. The local board of health would need to adopt a resolution in support and then they would need to go to the local policy makers to get them to adopt ordinances. As expected, the urban areas are moving the fastest on this, but there is movement in the rural areas as well. Substance abuse is an issue that faces communities all across the Commonwealth.
Dr. Lynne Sadler, Director, Northern Kentucky Independent Health District said that in Northern Kentucky they are concerned about IV drug use and what the statutory mandate is for sharing needles. One of the fundamental statutory requirements for public health is to stop the spread of disease, and to prevent disease outbreaks. All the diseases are very expensive to treat. In 2012, Hepatitis C discharge billings in Kentucky hospitals were $348 million for in-patient hospitalization, and $23 million for emergency visits for Hepatitis C.
Sadiqa Reynolds, Chief of Community Building from the Louisville Mayor’s Office said there has been a suggestion that there should be a one-for-one needle exchange, which implies that everyone in the community uses one needle each and that no one is sharing needles. However, the sharing of needles is why the spread of disease has increased and is the reason needle distribution is a public health initiative.
Wayne Crabtree, M.Div CADC, Administrator of Clinical Services, Louisville Metro Public Health and Wellness said that the Louisville Needle Exchange Program operates 6 days per week and that the interventions are changing lives. In the first two weeks of operation the program had 100 participants, 20 of whom were voluntarily tested for HIV, and 9 who were referred for drug treatment.
In response to a question by Senator Westerfield, Ms. Reynolds said as awareness of the program grows, there will be more exchanging of syringes and needles. Requiring a one-to-one exchange would violate the spirit of the program. Clients are individuals who have addictions and some are bringing needles, some are not. This should not be seen as a promotion of drug use, but instead a way trying to prevent disease and the spread of disease. Ms. Reynolds is confident that over time, there will be decrease in the number of needles in the park, a decrease in the number of police officers getting stuck, and an increase in the number of needles being brought in to the exchange.
Representative Butler said that he and Representative Jenkins toured the needle exchange program and it was very eye opening. The individuals operating the program have to develop a program from the ground up, and have to gain the trust of the individuals coming to the program, and they are doing an amazing job. Mr. Crabtree said that teaching addicts what they have to do to stay healthy and to keep others healthy is an opportunity to provide interventions to people who are very difficult to reach.
Senator McDaniel spoke about the language in SB 192. Local health departments are not prohibited from operating substance abuse treatment outreach programs which allow participants to exchange hypodermic needles and syringes. SB 192 language does not say “distribute” or “receive,” but “exchange.” He added that, if employees of the Louisville program are being allowed to distribute without an exchange, they are operating in contravention to the law and opening themselves to criminal liability. He said that an Attorney General’s opinion has been requested.
Representative Butler said that, under SB 192, needle exchanges are operated by local option. In Louisville’s case, the Health Department presented the program to the 26 members of Metro Council, and the Health Department’s General Counsel advised that the exchange fell under SB 192. The County Attorney’s office also reviewed the bill independently and said that the program fit into SB 192 and all 26 members of the Metro Council voted for it. The bill allows, but does not require, participants to exchange.
Senator McDaniel said he expected an exchange or there would not be a program.
Ms. Reynolds said she takes issue with someone saying employees of the Louisville needle program are going to face criminal charges because the word “allows” makes it clear that this is not criminal. An exchange is allowed but is not required by law. Mr. Crabtree added that the program strongly encourages the return of distributed needles, making returns part of the Participants’ Rights and Responsibilities form provided to each client.
In response to a question by Senator Westerfield, Representative Butler said the program is tracking how many needles are given out and how many are coming in. They also teach the participants how to safely dispose of the needles if they are not going to bring them back in.
Dr. Rice Leach, Director, Lexington – Fayette County Health Department said he is one doctor taking care of 330,000 people in Fayette County. Some of those people use heroin and leave needles lying around, while many do not. All are at some risk of catching HIV or Hepatitis. When Lexington – Fayette County establishes a needle exchange program for those using IV drugs, they will be given needles and expected to bring some back.
In response to a question by Representative Floyd, Ms. Sadler said that research she has read says that if someone comes in with one needle and is given one needle, but uses 4-5 per day, they are going to continue sharing needles and spreading diseases that are trying to be prevented.
Good Samaritan Immunity
Hon. Rob Sanders, Kenton County Commonwealth’s Attorney said there are problems with the Good Samaritan portions of SB 192. Anytime legislators create immunity of any sort, he sees resulting litigation from people that hope to take advantage of that immunity where it was never intended to apply because defense attorneys are required to pursue these avenues to help clients. Specifically with immunity granted in SB 192, no evidence was presented that significant numbers of people hesitated to call 911 when witnessing or experiencing an overdose. He believes that if the numbers are weighed between when someone called 911 and when they did not call 911, the times that 911 is called are significantly higher. His concern is that those who need treatment the most are turned back out into the community with just a piece of paper telling them where to get treatment. The bill is written as if those overdosing will receive medical treatment beyond the administration of Narcan and be transferred to a hospital. However, the 911 immunity broadly applies no matter who calls 911, and there are other ways of accomplishing the goal and getting people into treatment.
Mr. Sanders discussed Kenton County’s Heroin Expedited Addiction Recovery Treatment (HEART) Program. Each addict arrested for a drug or drug paraphernalia possession-only offense is evaluated by a clinician certified for addiction assessments. Between the arraignment and the preliminary hearing, the clinician makes a recommendation to the judge regarding which treatment program is best suited to handle the addict’s needs. At the hearing, the Judge asks if the individual wants to be in the program. If they do, the bond is set at “own recognizance” and they are released the next day to a municipal bus that drives them straight to their treatment program.
Hon. Leigh Ann Roberts, Carroll County Assistant Commonwealth’s Attorney said she echoed much of what Mr. Sanders said. There are differences with what happens in the rural areas with what is available in cities. In 2010, she prosecuted just over 300 felonies a year. By 2012, there were over 500, which is primarily because of the possession and trafficking of heroin offenses. In her role as prosecutor, she has to deal with non-drug crimes that are occurring as a result of high levels of heroin addiction. If one of the goals of SB 192 is to preserve life, lives can be saved more readily without the immunity clause in the legislation. A focus could be to ensure that treatment funds are available, and to increase communication between different agencies. She said the problem her office has with the Good Samaritan immunity is that it is hard to understand that the intent of the legislation was to de-criminalize the possession of heroin in those circumstances. She urged that the committee revise SB 192 in general and consider the repeal of the Good Samaritan clause.
Hon. Susan Ely, Assistant Jefferson County Attorney said prosecutors throughout the state have struggled with the Good Samaritan laws. She said she works with thousands of cases per year. She and Jefferson County Attorney Mike O’Connell are supportive of the Good Samaritan provisions, although they do agree there are valid questions being brought up. She said they are working closely with the Jefferson County’s Commonwealth Attorney and community programs, similar to the other prosecutors. In Jefferson County they are trying to get a grant specifically to deal with heroin prosecution.
Representative Jenkins mentioned that there are 25 states that have similar Good Samaritan laws like Kentucky and asked if staff could communicate with prosecutors in those states to see if they are experiencing the same difficulties and how they handle them.
Daniel Schubert, Assistant Public Advocate, Kenton County, advocated for the preservation of the Good Samaritan immunity provision as is. He said that immunity is important for all in order to get life-saving medicine to individuals. If people are worried about the consequences of making a phone call, that will obstruct the swift medical response. He said that he represents thousands suffering from heroin addiction. They all want help, but they do not view criminal prosecution as help. Even with intervention like the HEART program, people face prison sentences as a result of their overdoses and the evidence left behind, and that risk that will make people avoid calling for emergency services.
Eva Hager, Assistant Public Advocate, Campbell County asked the committee not to repeal the Good Samaritan law without obtaining the data. She asked the members to look at the reporting requirements of the law before making any decisions. If the numbers are not reviewed, policy makers will not know if the Good Samaritan law is working or not.
Steve Florian, Assistant Public Advocate, Boone County said that charging people with felonies and incarcerating them so they are forced into treatment has gone on for decades and it does not work. The same people are in the court system repeatedly and it is clogging the dockets. He asked that the immunity provision stay in the legislation.
Public Advocate Ed Monahan closed by saying that it is premature to call for a repeal of the Good Samaritan immunity until more data is collected. The immunity is a critical provision and it needs to be given a chance. It is in 22 states for a reason. Immunity, well crafted by General Assemblies and courts, is important to the proper functioning of society.
Senator McDaniel said he did not think that Mr. Sanders suggests to incarcerate ourselves out of the problem. Instead, he heard a call to take a look at whether more lives were being saved by forcing more people into treatment via these mechanisms versus them being allowed to have immunity when they called.
In response to a question by Representative Tilley, Mr. Florian said that as a defense attorney he will always advocate for the best result for his client.
Representative Tilley said he is willing to review the process and make it what it is supposed to be. He said that in an overdose situation, we need to work to save lives first and sort things out later.
In response to a question by Representative Tilley, Mr. Monahan said that current law allows for involuntary commitment in some circumstances. He added that the current Good Samaritan provision applies to possession of drugs or paraphernalia, it does not apply to trafficking. He encouraged the members to get the data and then see if something needs to be changed.
There being no further business, the meeting was adjourned at 12:04 p.m.