By: Eric R. Atstupenas, Esq.[1]
I. Introduction
In a time when our law enforcement officers are responding to an alarming number of incidents involving opiate overdoses, agencies should be prepared to arm their officers with a means to reverse overdoses and save lives. In an effort to dramatically reduce the number of opioid-related deaths nationwide, countless law enforcement agencies have already initiated nasal naloxone programs, which utilize a nasally-administered drug commonly referred to by its brand name, Narcan®, to reverse the effects of opiate overdoses.
II. Testing the Waters: The Massachusetts Example
One of the first law enforcement agencies to successfully implement a nasal naloxone program and provide training to all of its officers was the Quincy, Massachusetts Police Department in October of 2010, which was assisted by the efforts of the Massachusetts Department of Public Health (MDPH) pilot program. Since 2010, the Quincy Police Department has reported 229 successful overdose reversals through the use of nasal naloxone. Detective Lieutenant Patrick Glynn, reports that during the first eighteen months of the program, approximately 90 lives were saved, resulting in a 66% decrease in opioid-related deaths.[2] The Quincy Police Department has received local and national acclaim for its nasal naloxone program, providing all law enforcement agencies with a benchmark to create their own nasal naloxone programs.[3] Glynn further reports that he approaches the program not only as a means of saving lives, but also as an extraordinarily effective form of community policing. He states that “the public’s perception of us has changed dramatically…They like us!”
Until recently, the MDPH limited the departments allowed to participate in the program. As a result, several departments, took the initiative on their own, in order to implement a nasal naloxone program, create a viable policy, create an agreement between the department and the prescribing physician, train officers and save lives.
III. Creating the Legal Framework
Using the Massachusetts example, several departments began implementing their own nasal naloxone programs, justifying the same upon the existing legal framework. In Massachusetts, for example, the law carves out a specific exception for law enforcement to possess and distribute controlled substances while acting in the regular performance of his/her official duties. The law further provides that “[n]aloxone or other opioid antagonist may lawfully be prescribed and dispensed to a person at risk of experiencing an opiate-related overdose or a family member, friend or other person in a position to assist a person at risk of experiencing an opiate-related overdose.” M.G.L. c. 94C, § 19.
Several other states have also enacted, or are in the process of enacting, similar laws in order to begin implementing nasal naloxone in law enforcement agencies. In fact, as of the last review, only 18 jurisdictions currently have no laws pending relative to putting naloxone in the hands of police officers (e.g. Alaska, Arizona, Arkansas, Florida, Hawaii, Idaho, Kansas, Mississippi, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Texas and Wyoming). Most other states have already implemented pilot programs or have enacted laws permitting family members, friends and those people in a position to assist an individual experiencing an opiate-related overdose to obtain and dispense naloxone, which has provided a catalyst for department’s to introduce the naloxone program.
IV. Risk of Liability
The potential for liability is always of utmost concern in determining whether to implement a new program or piece of equipment into an agency’s arsenal. Luckily, most state statutes carve out an exception for liability for officers who in good faith provide emergency first-responder care, or use naloxone on an individual believed to be suffering from an opiate overdose.
Further, the Harm Reduction Coalition reports that “Naloxone only works if a person has opioids in their system; the medication has no effect if opioids are absent.” In explaining how naloxone works, the MDPH advises that “[a]n overdose occurs because the opioid is on the same receptor site in the brain that is responsible for breathing. Naloxone usually acts dramatically, allowing slowed or absent breathing to resume. It is both safe and effective and has no potential for abuse.”[4] As a result, agencies considering a nasal naloxone program can do so with a minimal fear of potential liability.
There is a caveat worth mentioning; however, with respect to the reaction that one who is experiencing an overdose might have when administered nasal naloxone. It has been reported that in some instances, the person suffering from the overdose may experience a sudden burst of energy or excitement (similar to an adrenaline rush) upon administration of the naloxone which could result in injury to the individual or the administering officer. Some officers have also reported that individuals may become combative after administration of naloxone since the drug will likely “ruin the high”. Nevertheless, it is of utmost importance that the emergency medical service is summoned immediately upon arriving on scene and notified as to the use and administration of naloxone on the individual.
V. “Narcanizing” Your Agency
- Bargaining
Under current law, and unless otherwise specified by the National Labor Relations Board or your state’s Labor Relations Commission, it is our belief that the issue of implementation of a nasal naloxone program is not a mandatory bargaining issue. In particular, there is no need to engage in any bargaining over training the officers in the administration of nasal naloxone. However, unions may be entitled to demand mid-term bargaining with regards to the impacts of the decision to implement the program once the nasal naloxone is ready for deployment amongst the officers and/or vehicles. As a result, agency executives may have to meet with the union, answer any relevant questions and concerns and thereafter implement the program after reaching either an agreement or impasse.
- Policy
As with implementing any new tool into a department’s arsenal, it is important to ensure that the implementation is done in conjunction with the adoption of an appropriate policy. A sample national policy has been included with this article to provide some guidance. You will note that Section 3 of the policy includes state laws and bills relevant to implementing nasal naloxone programs in law enforcement agencies in each state. If your state has an applicable naloxone program, be sure to contact the program administrators for details. Click Here to View DLG Model Policy
- Memorandum of Agreement (MOA)
Several departments AEDs or EpiPens, which require that the department have an MOA. In order to carry nasal naloxone, your MOA must be updated to reflect the addition of nasal naloxone. If you do not have a pre-existing MOA, you may obtain one through your local hospital or by partnering with your local EMS providers, and in particular, the paramedics’ prescribing physicians, for the purpose of obtaining an MOA. If you cannot obtain an MOA through the usual means, then you may wish to contact your state’s department of health (or its equivalent) directly in order to help you locate a medical director for your program.
- Training
Each state has the prerogative to promulgate the minimum standards for first responder training, including the use of nasal naloxone. In order to find the appropriate program, it is best to speak with your department’s medical director, or the department of health (or its equivalent).
- Registration
Some states will require that your department complete and file a Controlled Substances Registration form. Be sure to speak with your department’s medical director, or the department of health (or its equivalent) to see if this is a requirement.
- Obtaining Nasal Naloxone
If your department has an MOA with a hospital, then your first responder agency will obtain your nasal naloxone kits from the hospital pharmacy. If your department has an MOA with a medical director, then he or she will instruct you as to which pharmacy will provide you with your nasal naloxone kits.
VI. Closing Remarks
In closing, most states nationwide have either already enacted, or have begun to enact, laws permitting law enforcement agencies to implement a nasal naloxone program and to use naloxone to dramatically reduce the number of opioid-related deaths in the United States. By executing such a program, agencies can not only save lives, but also increase the public perception of the department, and foster a stronger relationship between police and the community.
Detective Lieutenant Glynn sums up the present situation perfectly: “We cannot arrest our way out of this epidemic. These people are sick and need treatment; not a cell. As far as the cost; what is the cost of a human life? The people we are saving are someone’s brother, sister, mother or father. We simply provide an option to live for the person afflicted with a substance abuse disorder.”[5]
This publication is produced to provide general information on the topic presented. It is distributed with the understanding that the publisher is not engaged in rendering legal or professional services. Although this publication is prepared by a professional, it should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.
- Mr. Atstupenas is licensed to practice law in Massachusetts, Rhode Island and Connecticut. ↑
- Statistics provided by Detective Lieutenant Patrick Glynn, Quincy Police Department, Commander, Special Investigations & Narcotics Unit. Det. Lt. Glynn was singled out in the White House’s 2013 National Drug Policy Strategy report and he was named one of seven “Advocates for Action” from across the country by the Office of National Drug Control Policy at a ceremony in Washington, D.C. ↑
- For more information regarding Quincy Police Department’s success story, visit the following links:
- Massachusetts Department of Public Health, “Opioid Overdose Education and Naloxone Distribution: MDPH Naloxone pilot project Core Competencies,” p.4. ↑
- Detective Lieutenant Patrick Glynn, Quincy Police Department, Commander, Special Investigations & Narcotics Unit. ↑