Call to Order and Roll Call
The 5th meeting of the SB 192 Implementation Oversight Committee was held on Friday, October 23, 2015, at 10:00 AM, at Volunteers of America, Louisville, Kentucky. 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: Representative Mary Lou Marzian; Jennifer Hancock, President and CEO, Volunteers of America Mid-States; Katie Warren, Program Graduate, Volunteers of America Mid States; Jefferson County Circuit Court Judge McKay Chauvin, Board Member, Volunteers of America Mid-States; Honorable Mark Baker, Assistant Commonwealth Attorney, Jefferson County; Honorable Rob Sanders, Commonwealth Attorney, Kenton County; Honorable Chris Cohron, Commonwealth Attorney, Warren County; Major Steven Long, Commander, Kentucky State Police Special Enforcement Troop; Christopher Conners, Director, Northern Kentucky Drug Strike Force; Shara Parks, Major, Louisville Metro Police Department Fifth Division; Micky Hatmaker, President, Kentucky Narcotics Officers’ Association’ Honorable David Tapp, Circuit Court Judge, Pulaski County; Elizabeth Blevins, Physician Assistant, Florence Medical Group; Dr. Sarah Moyer, Interim Director, Louisville Metro Department of Public Health and Wellness; Scott Davis, United States Attorney Office; Heather Gibson, The Healing Place; Dave Stengel, Legislative Research Commission; Frank Dahl, Commonwealth Attorney; Richard Gee, County Attorney; Tom Wine, Office of Commonwealth Attorney; Shellie Hampton, KACo; Karen Lentz, Commonwealth Alliances; Catherine Troop, DBHDID; Emalee Lundin, LMG; Tara Moseley, Young People in Recovery; Rachel Kragman, Florence Medical Group; Jim Beiting; J. Michael Brown, Secretary, Justice and Public Safety Cabinet; Steve Bing, KHDA and KPHA; Christina Gordley, Office of State Budget Director; Bill Diemf; Schuyler Olt; Rick Sanders, Police Chief, Jeffersontown Police Department; Geoff Pinkerton, Office of State Budget Director; Jessica Padgett, NKY Hates Heroin; Mark Mangeot, Kentucky Department of Corrections; Steve Florian, Boone Public Defenders; Leo Smith, Louisville Public Defender Office; and Katrine Lock, Florence Medical Group.
LRC Staff: Jon Grate, Jonathan Scott, Sarah Kidder, Alice Lyon, and Katie Carney.
The minutes of the September 14, 2015 meeting were approved without objection.
Service Overview from Volunteers of America
Jennifer Hancock, President and CEO, Volunteers of America Mid-States, provided an overview of the services offered through the Volunteers of America (VOA). The Mid-States region includes all of Kentucky, Tennessee, Southern Indiana, West Virginia, and Southern Ohio, reaching 23,000 people per year. Programs include services to veterans, individuals with developmental disabilities, homeless individuals and families, and substance abuse issues.
At the VOA Shelby Street Clinical Campus, 125 men and women receive licensed drug and alcohol treatment. The men and women treated at this facility include veterans with co-occurring disorders of a mental health condition and substance abuse disorder; men who exited the Department of Corrections and are required to spend 6 months with a licensed facility prior to their reintegration with society; and women who are pregnant or parenting with a substance abuse disorder. VOA’s Freedom House is one of three providers in Kentucky to allow children to stay with mothers who are being treated, rather than being forced to choose between residential treatment and living with their children.
The Freedom House program recently expanded because of the rise in opioid addiction among pregnant women. There is a finite window of opportunity to intervene, successfully influence the outcome of a woman’s pregnancy, and help with reuniting the woman with her other children. The program celebrated the 100th healthy baby born within the program on July 10, 2015. VOA received some funding through SB 192 to provide additional medical oversight to pregnant heroin users at Freedom House and follow-up services to the mothers after they rejoin the community.
Judge McKay Chauvin, Chief Circuit Court Judge in Jefferson County and Volunteers of America board member, explained how approximately 95 percent of criminal dockets are drug crime related. One of the many reasons that the “War on Drugs” phrase is imperfect is that there is no frontline, drugs are everywhere. Heroin is the most recent drug that has exploded onto the drug scene in Kentucky. The defendants in his courtroom are those who are under-educated, under-employed, and under the influence of drugs. We do not need to fill our prisons with drug addicts; prisons should be reserved for people society is afraid of, rather than those we are angry with.
Katie Warren, a program graduate of Freedom House, provided testimony on her struggle with alcohol and drug addiction. While pregnant with her first daughter, now 6, Ms. Warren was able to stop drinking. But after her daughter was born, Ms. Warren started taking OxyContin. Ms. Warren lost custody of her daughter and became pregnant with another daughter while addicted to heroin. While in a 10-day detoxification program, Ms. Warren learned of Freedom House. Ms. Warren now has custody of both daughters and is a full-time student at Jefferson Community and Technical College.
Disrupting the Supply of Heroin
Chris Conners, Director of the Northern Kentucky Drug Strike Force, presented a review of legislative initiatives that could disrupt the supply chain of heroin. Mr. Conners stated that 44 states currently have statutes that allow for wire interception, and included information on those states in the meeting folder. While wire interceptions require personnel around the clock to monitor communication, intercepts provide a tool to disrupt trafficking organizations, which will decrease the availability of illegal drugs and could dissuade new users. Wire interceptions could also assist with multi-jurisdictional prosecutions. The panel requested that potential legislation allow for roving interceptions.
Mr. Conners addressed the current drug weight thresholds in Kentucky. The panel suggested lowering the threshold for aggravated trafficking of 100 grams to around 25 or 27 grams. Mr. Conners stated that most wholesale distributors are selling heroin and cocaine in ounce-sized packaging, and these dealers are not typically heroin users.
In regards to manslaughter or homicide overdose death prosecutions, the panel said an autopsy is necessary to show a specific cause of death due to heroin. If a presumptive cause of death could be considered that would not require an autopsy, law enforcement would have the ability then to immediately gather evidence and charge the dealer in the user’s death. Mr. Conners stated that this change would be similar to federal prosecution guidelines for murder.
Micky Hatmaker, President, Kentucky Narcotics Officers’ Association explained that due to limited resources and time, most overdose death cases will not be sent to the medical examiners’ office for autopsy. Mr. Hatmaker suggested having a court hearing post-indictment to stipulate that the drugs were the cause of death in prosecuting for manslaughter, reckless homicide, or homicide.
Mr. Conners stated the panel would like the legislature to consider mandatory minimum sentences that would ensure equal treatment across all jurisdictions for drug crimes. The panel believes that will encourage more cooperation with law enforcement by allowing defendants to identify others in the drug supply chain in exchange for reduced sentences or earlier parole eligibility.
Mr. Conners and the panel reviewed the Kentucky statutes relating to asset forfeiture for drug crimes that currently require the assets to be located in the same jurisdiction where the criminal conviction occurs. Upon conviction, assets can be sold to generate funds for law enforcement. In some inter-jurisdictional investigations, illegal drugs are often confiscated and prosecuted in one jurisdiction, with substantial property assets seized in another. The panel recommended that the statute only require a felony drug conviction without regard to where, therefore enabling state forfeiture wherever the assets were seized.
In response to a question by Senator Westerfield, Mr. Conners responded that he is not aware if other state statutes specify additional stipulations for individuals monitored by roving interceptions who have a significant number of burner phones. Roving interceptions require additional proof to determine probable cause; however, if you can confirm that burner phones are being used over a time frame, then it might be easier to justify the use of roving interception.
In response to a follow-up question by Senator Westerfield, Mr. Conners stated that obtaining authorization for a wire interception is similar to obtaining a search warrant. With wire interceptions, software is used that analyzes call patterns from an initial phone and, with assistance from an informant, additional phones can be confirmed as part of the pattern.
In response to a question by Senator McGarvey, Chairman Butler informed the committee a copy of Tennessee’s wire interception statute, which does not include a roving clause, is included in the meeting folder. Mr. Conners stated Ohio’s wire interception legislation is less cumbersome than at the federal level, but it does provide judicial oversight by including the Attorney General’s Office in the process. Mr. Hatmaker added that a vast majority of state statutes do mirror the federal statutes and in some multi-jurisdictional situations, federal law enforcement applies for the state wiretap rather than a federal wiretap.
Representative Tilley commented that approximately two years ago, legislation was introduced by Chairman Butler that would allow for wire interception. In response to a follow-up question, Mr. Conners said a wire interception statute should be written broadly, covering any type of electronic communication in addition to telephones.
Senator Westerfield commented that the 100 gram threshold for aggravated trafficking was a policy compromise. Mr. Conners responded that a 27 gram threshold could distinguish dealers because few drug users buy more than one ounce (28.3 grams) at a time.
In response to questions by Senator McDaniel, Mr. Conners said that the panel would prefer to see a threshold level of 25 grams being sold at one occurrence, rather than an aggregate confiscation of 25 grams over 90 days.
In response to a question by Senator Westerfield, Mr. Conners said the penalty for wholesale distribution should automatically be a Class B felony.
In response to a question by Senator McGarvey, Mr. Hatmaker stated that there should not be a time window for aggregation when determining if you are a major player in dealing 25 grams or more of heroin. Mr. Hatmaker and Mr. Conners added that undercover law enforcement officers buying in small doses to reach the 100 gram mark is not effective.
Representative Tilley commented that the suggestion of a time frame for aggregating undercover drug purchases actually came from law enforcement.
In response to a question by Representative Tilley, Mr. Conners stated that incarceration does work to a point as it deters the current dealer; however, the demand for heroin is still in play. In response to follow-up comments and questions, Mr. Conners added that having a tiered penalty system does encourage defendants to be cooperative and working with law enforcement towards catching the largest players in the drug trafficking organizations.
Representative Tilley commented how determining the correct sentence ranges is a national issue. He stated that a Senator from Iowa has filed a bill to reduce the mandatory minimums in an effort to decrease the prison population while still having an impact on the drug problem. The federal prison population has increased 750 percent and a balance needs to be achieved. Currently, the average length of time a heroin dealer was serving was 40-45 percent of the sentence, and to have a mandatory minimum requirement for certain drug convictions might be the route to go. Communication needs to take place with the parole boards to gain their cooperation since they make the decisions as to a prisoner’s release.
Representative Tilley discussed the difficulty in actually determining which drug is the actual cause of death. Typically there is a combination of drugs and alcohol in the overdose victim’s system. Mr. Hatmaker replied that receiving an autopsy for all overdose deaths is almost impossible, which is why they are looking for an alternative solution.
In response to a question by Representative Floyd, Mr. Conners stated that prosecutors would be able to confirm, but to his understanding conviction is required prior to criminal asset forfeiture.
In response to a question by Senator McDaniel, Mr. Conners and the panel agreed that if someone has 25 grams of drugs on them, that they are more than just a street level dealer. Senator McDaniel commented that he would like to speak to the panel in more detail at a later date regarding this recommendation as it relates to the appropriation side of drug trafficking investigations.
Mark Baker, Assistant Commonwealth Attorney, testified that electronic interception is the single most effective tool in dealing with large scale narcotics organizations. However, it is the one tool denied to police and prosecutors in Kentucky. Once the criminal is captured and charged, prosecutors seek adequate proof to confirm who committed the crime, and wiretapping cannot be altered.
Mr. Baker commented how Kentucky’s forfeiture statute requires a conviction to move forward with the asset forfeiture, then it reads like a civil statute. In the civil portion of the statute a lot of proof is required preceding taking any assets. He would change the statutes to not require a conviction prior to seizing assets. Mr. Baker believes that guidelines for seizing assets and asset forfeiture should be within the criminal rules of procedure.
Rob Sanders, Commonwealth Attorney, testified on how SB 192 rocket docket funding has allowed him to hire an extra prosecutor for low-level drug cases. Mr. Sanders believes reports will show improved treatment opportunities for low-level dealers who are users, and more time freed up for other prosecutions of higher level drug traffickers. Mr. Sanders asked that the rocket docket program become a permanent fixture in future budget allocations. He stressed that the resources generated to the commonwealth attorney offices provide them with flexibility and replenishes funds that had previously been cut.
Mr. Sanders discussed the importance of punishment levels and parole eligibility percentages. He explained that part of the problem after HB 463 was implemented and the punishment levels for possession became one to three years, the motivation was removed for criminals to cooperate with law enforcement in return for a lower sentence or parole eligibility at a lower percentage of time served. Mr. Sanders recommended changing parole eligibility to around 50 percent of sentence, and if the accused cooperates with law enforcement to provide information about the larger drug traffickers and wholesale dealers, then the parole eligibility could be reduced to 20 percent.
Chris Cohron, Commonwealth Attorney, testified that Volunteers of America drug recovery treatment facilities work, while some half-way house treatment facilities for recently released prisoners are merely an avenue to continue using or dealing narcotics.
Mr. Cohron stated that he is in favor of a statewide wiretapping program and also requiring collection of DNA upon arrest. In regards to wiretapping, he stressed there is a necessity for adequate levels of oversight. While wiretapping is a strain on law enforcement resources, it would be an important tool used in monitoring large scale drug trafficking organizations.
Mr. Cohron agreed with other presenters on requiring 50 percent of sentence before parole eligibility in drug crimes. In many instances the parole eligibility level is not appropriate or in accordance with the crime convicted of. There is too much bandwidth of parole eligibility percentages between nonviolent and violent offenses. He would like to see implementation of more treatment options.
Representative Tilley stated that he agrees that Kentucky needs to allow for wiretapping and DNA upon arrest. He requested that law enforcement, prosecuting attorneys, and other groups continue voicing their support to the legislature. In response, Mr. Cohron commented that individuals need to be educated on how these programs work and to explain the levels of oversight each program would have.
Vivitrol Treatment
David Tapp, Circuit Court Judge, presented information on the use of Vivitrol in treating drug addiction. Vivitrol is a once-per-month injectable formulation of naltrexone, which blocks opioid cravings and the euphoric effects of opioids. It can only be used after detoxification. Vivitrol is currently being used in Judge Tapp’s drug court pilot program, the Supervision Motivation Accountability Responsibility and Treatment (SMART) court program, and some pre-trial and probation supervision. After a consultation with physicians and lawyers, the defendant agrees to frequent drug testing, counseling, and 12-step meetings as an alternative to incarceration.
Judge Tapp believes that the Vivitrol pilot program is one of the most exciting things to happen in the criminal justice arena. Vivitrol is a non-addicting form of medical treatment that does not have any potential for abuse or diversion. Vivitrol’s only function is to assist individuals in becoming sober. Every court system in Kentucky has received information on Vivitrol, and there has been one state-wide meeting. He sees a need for more education among lawyers, Department of Corrections, defendants, and the medical community explaining how Vivitrol is a better non-addictive medically assisted treatment option than buprenorphine or methadone.
Most insurance and the Affordable Care Act provides coverage through Medicaid, and in some instances the manufacturer has worked with Judge Tapp to ensure that drug is provided to defendants in his drug court pilot program.
Judge Tapp stressed that the decision to participate in the Vivitrol program is ultimately a medical one. Any previous medical issues must be taken into consideration, specifically the patient’s liver enzymes. Any health issues need to be considered as early as possible for treatment to be adjusted in order to avoid long-term damage.
Representative Butler stated that in the SMART program, 26 out of 27 defendants were successful cases after deciding to participate in the Vivitrol treatment program. Judge Tapp clarified that there have been a few individuals who have begun the treatments, but discontinued due to health concerns.
Elizabeth Blevins, physician assistant, Florence Medical Group stated that there are no special conditions for a provider to offer Vivitrol as a treatment option. Any type of medical practice can prescribe the drug and her practice is one of the largest Vivitrol distributors in Kentucky.
While patients are going through outpatient detoxification, she provides a range of medications to control withdrawal symptoms, none of which include a controlled substance or addictive medications. Patients are screened for drugs prior to receiving the first dose of Vivitrol and must have a negative result. The practice stresses to the patients that the drug should be used in conjunction with counseling. In addition to these stipulations, if the patient has Hepatitis C, they must consult a gastroenterologist prior to and during the treatment.
Ms. Blevins testified that her medical group has seen a few patients who experience cravings near the end of the 30 days between injections, and in those cases they will administer a small number of naltrexone pills prior to the next injection. Vivitrol is not addictive and it does not show up in drug screenings, making it easier for patients to find jobs and get back on their feet. It is an avenue for helping a patient’s brain get back to normal after the changes due to opioid addiction.
Ms. Blevins testified that the national average for a patient to be on Vivitrol is around four to five months. The trend within her medical group for Vivitrol treatment is seven months.
Ms. Blevins testified that there have been issues with medical insurance providers approving the shot. In some instances insurance companies will not provide pre-authorization for Vivitrol until buprenorphine is tried first. Ms. Blevins is concerned that a second detoxification from buprenorphine is required before non-addictive Vivitrol can finally be taken. Ms. Blevins noted that doctors licensed to prescribe buprenorphine are limited to 100 patients at a time and clinics often have long waiting lists, while Vivitrol can be administered by any type of medical practice after a patient detoxes. Some insurers require the daily pill form of naltrexone, rather than injectable Vivitrol, which means treatment is dependent on patient compliance and the risk of relapse increases tremendously. Representative Tilley commented that buprenorphine clinics have more federal regulation, which contributes to the waiting lists.
In response to a question by Representative Tilley, Ms. Blevins stated that over 80 percent of her patients have Hepatitis C and must consult with a gastroenterologist to continue Vivitrol treatment.
In response to a question by Representative Butler, Ms. Blevins explained that throughout the patient’s detoxification time frame, drug tests are administered regularly.
In response to a question by Representative Jenkins, Ms. Blevins stated that the cost for a shot is around $1200 with the patient being responsible for around $700. Judge Tapp added that an individual pill is around $6.
Representative Tilley explained that this committee is very much in favor of Vivitrol and stated funding for Vivitrol programs was the largest expenditure of the $10 million appropriation from SB 192. Judge Tapp stated that he has received calls from heroin users who are not in the criminal justice system requesting information on how to obtain Vivitrol.
Representative Tilley explained he has received a range of costs for administering Vivitrol as an injection anywhere from $550 through Medicaid to around $1800. An audience member, Eric Duncan, stated they would provide the committee with an average cost for the drug.
Representative Butler informed Ms. Blevins he would like to have a follow-up meeting to discuss the insurance barriers providers are experiencing. Ms. Blevins stressed that the chance of relapse increases while administering naltrexone in pill form. Ms. Blevins believes that all insurance companies should approve Vivitrol.
Louisville Metro Syringe Exchange Program Update
Sarah Moyer, Interim Director, Louisville Metro Department of Public Health and Wellness, testified that in the first four months of Louisville’s needle exchange program, 962 individuals from Louisville, across Kentucky, Indiana, Ohio, and Tennessee, have participated with approximately 40 percent returning. Through the program, the health department offers HIV and Hepatitis C testing. All of the 114 tested for HIV were negative and of the 48 tested for Hepatitis C, around 40 percent were positive. Approximately 70 to 80 percent of the individuals who have participated in the program have Hepatitis C. The needle exchange program has referred 61 people for drug treatments and the program has helped prevent many new HIV and Hepatitis C cases.
In response to a question by Representative Jenkins, Dr. Moyer announced that the first satellite program site within the community opened on October 22, and she hopes more will open up later.
In response to a question by Senator Westerfield, Dr. Moyer stated that they have maintained a 2:1 ratio for the last two or three months for returning participants.
Representative Butler commented that an individual’s first step to recovery is when people begin to participate in a needle exchange program. Dr. Moyer explained that each participant receives information from a certified drug and alcohol counselor.
Senator Westerfield commented that he sees a passion for what is being done and is happy with numbers trending in the direction he would like for them to be in. He agrees that anyone seeking a needle exchange has taken the first step towards recovery and he would like to see the number being referred towards recovery continue to increase. Senator Westerfield recommended people to take a tour of the facility and become educated and informed.
Dr. Moyer stated that the exchange program has expanded its hours and number of days open, and the health department is working on opening more community sites.
Tara Moseley, Chapter Lead, Young People in Recovery, Louisville Chapter, said she started the Louisville chapter in an effort to provide trainings and offer a continuum of care when transitioning out of treatment and into long-term recovery. The Louisville chapter is trying to start a recovery community center in Jefferson County and expand peer-to-peer programs through receiving trainings from the Department of Behavioral Health.
The meeting was adjourned at 12:03 p.m.