ASSEMBLY THIRD READING

ATR Bill Id:AB 362

Author:(Eggman)

As Amended Ver:April 25, 2019

Majority vote

SUMMARY:

Authorizes the City and County of San Francisco (SF) to approve entities within their jurisdiction to establish and operate overdose prevention programs (OPP) for persons 18 years of age or older who satisfy specific requirements.

Major Provisions

Requires that prior to approval an OPP entity demonstrates that it will meet certain minimum requirements as follows:

• 1. Provide a hygienic space supervised by health care professionals, as specified, where people who use drugs can consume pre-obtained drugs;
  2. Provide sterile consumption supplies, collect used hypodermic needles and syringes, and provide secure hypodermic needle and syringe disposal services;
  3. Administer first aid, if needed, monitor participants for potential overdose, and provide treatment as necessary to prevent fatal overdose;
  4. Provide access or referrals to substance use disorder treatment services, medical services, mental health services, and social services;
  5. Educate participants on the risks of contracting human immunodeficiency virus (HIV) and viral hepatitis;
  6. Provide overdose prevention education and access to or referrals to obtain naloxone hydrochloride or another overdose reversal medication approved by the United States Food and Drug Administration;
  7. Educate participants regarding proper disposal of hypodermic needles and syringes;
  8. Provide reasonable security of the program site;
  9. Establish operating procedures for the program, and make available to the public either through an internet website or upon request that include but are not limited to: standard hours of operation, a minimum number of personnel required to be onsite during those hours of operation, the licensing and training standards for staff present, an established maximum number of individuals who can be served at one time, and an established relationship with the nearest emergency department of a general acute care hospital as well as eligibility criteria for program participants;
  10. Train staff members to deliver services offered by the program;
  11. Establish a good neighbor policy that facilitates communication from and to local businesses and residences, to the extent they exist, to address any neighborhood concerns and complaints.; and,
  12. Establish a policy for informing local government officials and neighbors about the approved entity's complaint procedures, and the contact number of the director, manager, or operator of the approved entity.

COMMENTS:

According to the Author:

According to the author, Legislation in many states including California, has improved access to sterile syringes to prevent HIV and viral hepatitis; broadened the use of the life-saving drug naloxone; and, expanded the use of effective treatment and drug diversion programs. This bill would extend the harm reduction strategies already in use in California by enabling SF to permit programs to provide people who use drugs with a safe and hygienic space to use pre-obtained drugs under the supervision of trained staff, in order to save lives, connect individuals with vital services like detoxification, treatment, medical care, and housing and reduce public nuisance and safety concerns such as improperly disposed syringes. Approximately 100 such programs are currently operating in 10 countries around the world.

Arguments in Support:

The California Society of Addiction Medicine states that this bill is consistent with the recommendation of the American Medical Association "to support the development of pilot facilities where people who use intravenous drugs can inject self-provided drugs under medical supervision. Studies from other countries have shown that supervised injection facilities reduce the number of overdose deaths, reduce transmission rates of infectious disease and increase the number of individuals initiating treatment for substance use disorders without increasing drug trafficking or crime in the areas where the facilities are located."

Arguments in Opposition:

The California Narcotic Officers' Association states that this bill contains no requirement that a participant in these programs receive even a single day of treatment. The bill also creates problematic issues, including but not limited to: 1)liability issues for any local government when participants inevitably overdose, injure or kill someone after leaving a program site; 2) absence of strategies for fending off federal intervention; 3)failure to provide adequate parameters for who would operate such a program and does not address by whom or in what capacity the staff would be trained; and, 4) the concentration of drug addicts at a specific site will inevitably result in those sites being a magnet for drug dealers, since their clientele will be easily within reach.

FISCAL COMMENTS:

None.

VOTES:

ASM HEALTH: 11-4-0

YES: Wood, Mayes, Aguiar-Curry, Bonta, Burke, Carrillo, Limón, McCarty, Nazarian, Chu, Santiago

NO: Bigelow, Flora, Ramos, Waldron

ASM PUBLIC SAFETY: 6-2-0

YES: Jones-Sawyer, Bauer-Kahan, Kamlager-Dove, Quirk, Santiago, Wicks

NO: Lackey, Diep

UPDATED:

VERSION: April 25, 2019

CONSULTANT: Judith Babcock / HEALTH / (916) 319-2097 FN: 0000294

Date of Hearing: April 23, 2019

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 362

Author:(Eggman) – As Amended Ver:March 11, 2019

As Proposed to be Amended in Committee

SUMMARY:

Authorizes the City and County of San Francisco to approve entities to operate an overdose prevention program for adults supervised by healthcare professionals or other trained staff where people who use drugs can safely consume drugs and get access to referrals to addiction treatment. Establishes a sunset date of January 1, 2026. Specifically, this bill:

1. Permits the City and County of San Francisco to approve entities to establish and operate an overdose prevention program for individuals 18 years of age or older.
2. Requires the city and county, prior to approving a program, to provide local law enforcement officials, local public health officials, and the public with an opportunity to comment in a public meeting. Requires the notice of the meeting to the public to be sufficient to ensure adequate participation in the meeting by the public. Requires the meetings to be noticed in accordance with all state laws and local ordinances, and as local officials deem appropriate.
3. Requires an entity, in order to be approved, to demonstrate that an overdose prevention program will, at a minimum:
   1. Provide a hygienic space supervised by health care professionals, as specified, where people who use drugs can consume pre-obtained drugs, and provide sterile consumption supplies, as specified;
      
   2. Administer first aid, if needed, monitor participants for potential overdose, and provide treatment as necessary to prevent fatal overdose;
      
   3. Provide access or referrals to substance use disorder treatment, mental health, medical, and social services;
      
   4. Educate participants on the risks of contracting HIV and viral hepatitis;
      
   5. Provide overdose prevention education and access to or referrals to obtain naloxone hydrochloride or other federally approved drugs, as specified;
      
   6. Educate participants regarding proper disposal of hypodermic needles and syringes;
      
   7. Provide reasonable security of the program site;
      
   8. Establish operating procedures for the program, made available to the public either through a Web site or upon request, including a minimum number of personnel required to be onsite, and an established relationship with the nearest emergency department of a general acute care hospital;
      
   9. Train staff members to deliver services offered by the program;
      
   10. Establish a good neighbor policy that facilitates communication from and to local businesses and residences, to the extent they exist, to address any neighborhood concerns and complaints; and,
       
   11. Establish a policy for informing local government officials and neighbors about the approved entity’s complaint procedures, as specified.
4. Requires an approved entity to provide an annual report to the city and county, as specified.
5. Prohibits a person or entity, including, but not limited to, property owners, managers, employees, volunteers, and clients or participants from being charged with drug-related crimes, as specified, solely for actions or conduct on the site of an overdose prevention program approved by the City and County of San Francisco or for conduct relating to the approval of an entity to operate an overdose prevention program, or the inspection, licensing, or other regulation of an overdose prevention program approved by the City and County of San Francisco.
6. States that notwithstanding any other law, a person or entity, including, but not limited to, property owners, managers, employees, volunteers, clients or participants, and employees of the City and County of San Francisco acting in the course and scope of employment shall not be subject to civil, administrative, disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action, sanction, or have their property subject to forfeiture, or penalty or other liability solely for actions, conduct, or omissions in compliance with an overdose prevention program approved by the City and County of San Francisco or for conduct relating to the approval of an entity to operate an overdose prevention program, or the inspection, licensing, or other regulation of an overdose prevention program approved by the City and County of San Francisco.
   
7. Establishes a sunset date of January 1, 2026
   

EXISTING LAW:

1. Provides that the possession of cocaine, cocaine base, heroin, opium, and other specified controlled substances, unless the possession is with the prescription of a physician, dentist, podiatrist, or veterinarian, shall be punished by imprisonment in a county jail for not more than one year, except as specified. (Health and Saf. Code, § 11350(a).)
   
2. Makes the possession of methamphetamine and other specified controlled substances, unless the possession is with the prescription of a physician, dentist, podiatrist, or veterinarian, punishable by imprisonment in a county jail for a term not to exceed one year, except as specified. (Health and Saf. Code, § 11377(a).)
   
3. States that any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution can be punished by imprisonment in the county jail up to three years (Health & Saf. Code, § 11366.5, subd. (a).)
   
4. Specifies that any person who utilizes a building, room, space, or enclosure specifically designed to prevent law enforcement entry in order to sell, manufacture, or possess for sale any amount of drugs, as specified, shall be punished by imprisonment in the county jail for three, four, or five years. (Health & Saf. Code, § 11366.6.)
   
5. Provides that until January 1, 2021, as a public health measure intended to prevent the transmission of HIV, viral hepatitis, and other blood borne diseases among persons who use syringes and hypodermic needles, and to prevent subsequent infection of sexual partners, newborn children, or other persons, the possession solely for personal use of hypodermic needles if acquired from a physician, pharmacist, hypodermic needle and syringe exchange program, or any other source that is authorized by law to provide sterile syringes or hypodermic needles without a prescription shall not be criminalized. (Health & Saf. Code, § 11364, subd. (c).)
   
6. Specifies that notwithstanding any other provision of law and until January 1, 2021, as a public health measure intended to prevent the transmission of HIV, viral hepatitis, and other bloodborne diseases among persons who use syringes and hypodermic needles, and to prevent subsequent infection of sexual partners, newborn children, or other persons, a physician or pharmacist may, without a prescription or a permit, furnish hypodermic needles and syringes for human use to a person 18 years of age or older, and a person 18 years of age or older may, without a prescription or license, obtain hypodermic needles and syringes solely for personal use from a physician or pharmacist. (Business & Prof. Code, § 4145.5, subd. (b).)
   
7. Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code, §§ 11054 to 11058.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Across the United States, heroin and opioid use and overdose is on the rise. Legislation in many states, including California, has improved access to sterile syringes to prevent HIV and viral hepatitis; broadened the use of the life-saving drug naloxone, which reverses the impact of opiate overdose; and expanded the use of effective treatment and drug diversion programs. However, with over 190 Americans dying every day (more than 13 Californians daily), we must continue to look for innovative strategies for addressing this epidemic.

“This bill would extend the harm reduction strategies we are already using in California by enabling the City and County of San Francisco to permit programs to provide people who use drugs with a safe and hygienic space to use pre-obtained drugs under the supervision of trained staff, in order to save lives, connect individuals with vital services like detoxification, treatment, medical care, and housing, and reduce public nuisance and safety concerns such as improperly disposed syringes. Approximately 100 such programs are currently operating ten countries around the world (Switzerland, Germany, the Netherlands, Norway, Luxembourg, Spain, Denmark, France, Australia, and Canada).

“In a single year the Canadian facility made more than 2,000 referrals to community-based services like addiction counseling, detoxification, health centers, methadone maintenance therapy, and long-term recovery houses. The research also shows no increase in the number of people who use drugs, drug trafficking or consumption crimes, or relapse rates. Also, a recent study in California projects that a single supervised consumption program could save $3.5 million in San Francisco annually.”

1. Supervised Injection Facilities and Drug Consumption Rooms: This bill would authorize the operation of supervised injection services programs in specified counties. Supervised injection facilities and drug consumption rooms are professionally supervised healthcare facilities where drug users can consume drugs in safer conditions. One of their primary goals is to reduce morbidity and mortality by providing a safe environment for more hygienic drug use and by training clients in safer drug use. The drug consumption room seeks to attract hard-to-reach populations of drug users, especially marginalized groups and those who use drugs on the streets or in other risky and unhygienic conditions. At the same time, they seek to reduce drug use in public and improve public amenity in areas surrounding urban drug markets. A further aim is to promote access to social, health and drug treatment facilities. (http://www.drugwarfacts.org/cms/Safe_Injection#sthash.jb2AsCAE.dpbs)
   

Worldwide, at least 90 facilities have been created to permit people to inject illegal drugs under medical supervision. The first opened in Berne, Switzerland, in 1986. A supervised injection site in Vancouver, B.C., is the only such site in North America. (Id.)

1. AB 186 (Eggman), of the 2017-2018 Legislative Session, was Vetoed by Governor Brown: AB 186 (Eggman), would have authorized the City and County of San Francisco to approve entities to operate an overdose prevention program for adults supervised by healthcare professionals or other trained staff where people who use drugs can safely consume drugs and get access to referrals to addiction treatment. AB 186 was vetoed by Governor Brown.
   
   As part of his veto message, Governor Brown stated,
   

“Fundamentally, I do not believe that enabling illegal drug use in government sponsored injection centers-with no corresponding requirement that the user undergo treatment-will reduce drug addiction.

In addition, although this bill creates immunity under state law, it can't create such immunity under federal law. In fact, the United States Attorney General has already threatened prosecution and it would be irresponsible to expose local officials and health care professionals to potential federal criminal charges. 

Our paramount goal must be to reduce the use of illegal drugs and opioids that daily enslaves human beings and wreaks havoc in our communities. California has never had enough drug treatment programs and does not have enough now. Residential, outpatient and case management-all are needed, voluntarily undertaken or coercively imposed by our courts. Both incentives and sanctions are needed. One without the other is futile.”

1. Philadelphia Safe Consumption Site and Federal Intervention: In January of 2018, Philadelphia’s leadership gave permission to establish supervised consumption sites within the city. Community health leaders planned a supervised consumption site named Safehouse, with a board of advisers that includes public-health experts.
   
   In February of 2019, the Federal Justice Department filed a civil lawsuit against Safehouse. The Justice Department has cited a federal law originally meant to stop crack houses. The Federal Justice Department previously stated, in response to a similar proposal in Vermont, “It is a crime, not only to use illicit narcotics, but to manage and maintain sites on which such drugs are used and distributed.” Safehouse argues that the federal crack house statute isn’t meant to stop medical facilities, like a supervised consumption site, focused on helping people survive and overcome their addiction. “We have a disagreement on the analysis and intention of the law,” Ronda Goldfein, vice president and lawyer for Safehouse, told WHYY. (www.vox.com/policy-and-politics/2019/2/6/18214021/philadelphia-safe-injection-site-trump-justice-department)
   
2. If This Bill Becomes Law, the Conduct Allowed would Still be Criminal Under Federal Law: State authorization does not nullify federal drug laws. As a result state authorization for drug consumption rooms would not prevent them from being shut down by federal law enforcement agencies. Likewise, state authorization does not provide immunity from federal criminal proceedings, if federal law enforcement was inclined to pursue them.
   
   21 U.S.C. 844 and 21 U.S.C. 856 are two federal laws which prohibit behavior related to activity at a drug consumption room.
   
   21 U.S.C. 844 prohibits possession of drugs.
   
   21 U.S.C 856 prohibits:
   
   (a) knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance;
   
   (b) manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.
   
   Those sections would criminalize the behavior of both the clients using the facilities and the owners or operators of the facilities.
   
3. Proposed Amendments to be Adopted in Committee: The proposed amendments specify that an individual or entities conduct must be in compliance with an overdose prevention program approved by the City and County of San Francisco, to qualify for immunity from civil liability.
   
4. Argument in Support: According to the San Francisco Public Defender’s Office, “AB 362 would give the City and County of San Francisco the ability to better address the increase in drug overdose deaths, connect people to substance use disorder treatment, and reduce new HIV and hepatitis infections. Twelve Californians die every day of an accidental drug overdose1, on average, leaving behind grieving friends and family. AB 362 would allow San Francisco to provide services proven to make our communities safer and healthier.
   
   Overdose prevention programs (OPP) or supervised consumption services (SCS), such as those that could be established under this bill, have been shown to reduce health and safety problems associated with drug use, including public drug use, discarded syringes, HIV and hepatitis infections, and overdose deaths. OPP are sites where individuals are able to use illicit drugs in a clinical setting, with expert supervision and sterile supplies. Over 120 exist around the world in ten countries, including Canada. People who used such a program in Canada were more likely to enter treatment and more likely to stop using drugs.
   
   “The City and County of San Francisco wants and needs these programs. They are supported by the Mayor, the Board of Supervisors, the Sheriff, the District Attorney, the Chamber of Commerce, SF Travel, and 77% of the public, according to a recent poll by the Chamber of Commerce. In 2017, the Board of Supervisors convened a task force to review the issue and the
   task force unanimously recommended moving forward with the programs to improve public health and safety in San Francisco. An earlier study showed that San Francisco would save $3.5 million per year if one program were opened, or $2.33 for every dollar spent on the services.”
   
5. Argument in Opposition: According to the Association for Los Angeles Deputy Sheriffs,
   
6. Related Legislation: SB 689 (Moorlach), would require a city to adopt an ordinance or resolution approving a needle exchange, in order for the Department of Health to authorize an entity to establish a needle exchange. SB 689 is set for hearing in the Senate Health Committee on April 24, 2019.
   
7. Prior Legislation:
   
   1. AB 186 (Eggman), would have authorized the City and County of San Francisco to approve entities to operate an overdose prevention program for adults supervised by healthcare professionals or other trained staff where people who use drugs can safely consume drugs and get access to referrals to addiction treatment. AB 186 was vetoed by Governor Brown.
   2. AB 2495 (Eggman), would have decriminalized conduct connected to use and operation of an adult public health or medical intervention facility that is permitted by state or local health departments and intended to reduce death, disability, or injury due to the use of controlled substances. SB 294 was heard for testimony and returned to the desk.
      
   3. SB 41 (Yee), Chapter 738, Statutes of 2011, authorized a county or city to authorize a licensed pharmacist to sell or furnish 10 or fewer hypodermic needles or syringes to a person 18 or older for human use without a prescription.
      
   4. SB 1159 (Vasconcellos), Chapter 608, Statutes of 2004, established a five-year pilot program to allow California pharmacies, when authorized by a local government, to sell up to 10 syringes to adults without a prescription.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Drug Policy Alliance (Co-Sponsor)
Harm Reduction Coalition (Co-Sponsor)
Access Support Network
Aids Legal Referral Panel 
Alcohol Justice 
American Academy of HIV Medicine California/Hawaii Steering Committee
American Civil Liberties Union of California
Any Positive Change Inc.
APLA Health
Asian American Drug Abuse Program, Inc.
Asian Americans Advancing Justice California
C.O.R.E. Medical Clinic, Inc. 
Ca Association Of Alcohol And Drug Executives, Inc
California Association of Alcohol and Drug Program Executives, Inc.
California Consortium of Addiction Programs and Professionals
California Medical Association
California Psychiatric Association
California Public Defenders Association
California Society of Addiction Medicine
California State Council of Service Employees
City and County of San Francisco - City Attorney's Office
Coalition on Homelessness, San Francisco
Community Aid and Resources - UCSC
Community Housing Partnership
Consumer Attorneys of California
Courage Campaign
Democratic Socialists of America, San Francisco, Healthcare Committee
Dolores Street Community Services
Drug Policy Action
Ella Baker Center for Human Rights
Face to Face
Friends Committee on Legislation of California
Glide Foundation
Harvey Milk LGTBQ Democratic Club
Health Officers Association of California
Healthright 360
HIV Education and Prevention Project of Alameda County
Hive
Homeless Health Care Los Angeles
Indivisible SF
Larkin Street Youth Services
Legal Services for Prisoners with Children
National Association of Social Workers, California Chapter
National Health Law Program
Office of the Mayor, San Francisco
PRC
Saint Francis Foundation
San Francisco Aids Foundation
San Francisco Community Clinic Consortium
San Francisco Community Health Center
San Francisco Drug Users' Union
San Francisco Public Defender's Office
Shanti Project
St. Anthony Foundation
Tarzana Treatment Centers, Inc.
Tenderloin Neighborhood Development Corporation
Tenderloin People's Congress
The Spahr Center
Transitions Clinic Network
Ucsf Alliance Health Project

Oppose

Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Supervisors Organization, Inc.
California Narcotic Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Congress of Racial Equality
International Faith Based Coalition
Los Angeles County Professional Peace Officers Association

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744

Date of Hearing: March 19, 2019

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 362

Author:(Eggman) – As Amended Ver:March 11, 2019

SUBJECT: Controlled substances: overdose prevention program

SUMMARY: Authorizes the City and County of San Francisco (SF) to approve entities within their jurisdiction to establish and operate overdose prevention programs (OPP) for persons 18 years of age or older who satisfy specific requirements. Specifically, this bill:

1. Allows SF to approve entities within their jurisdiction to establish and operate OPP’s for persons 18 years of age or older.
2. Requires SF, prior to approving an entity, to provide local law enforcement officials, local public health officials, and the public with an opportunity to comment in a public meeting.
3. Requires the notice of the meeting to the public to be sufficient to ensure adequate participation and to be noticed in accordance with all state laws and local ordinances, and as local officials deem appropriate.
4. Requires that prior to approval an OPP entity demonstrates that it will meet certain minimum requirements as follows:
   1. Provide a hygienic space supervised by health care professionals (identified as including but not limited to a physician, physician assistant, nurse practitioner, licensed vocational nurse, registered nurse, psychiatrist, psychologist, licensed clinical social worker, licensed professional clinical counselor, mental health provider, social service provider or substance use disorder providers, trained in overdose recognition and reversal) where people who use drugs can consume pre-obtained drugs;
   2. Provide sterile consumption supplies, collect used hypodermic needles and syringes, and provide secure hypodermic needle and syringe disposal services;
   3. Administer first aid, if needed, monitor participants for potential overdose, and provide treatment as necessary to prevent fatal overdose;
   4. Provide access or referrals to substance use disorder treatment services, medical services, mental health services, and social services;
   5. Educate participants on the risks of contracting HIV and viral hepatitis;
   6. Provide overdose prevention education and access to or referrals to obtain naloxone hydrochloride or another overdose reversal medication approved by the United States Food and Drug Administration (FDA);
   7. Educate participants regarding proper disposal of hypodermic needles and syringes;
   8. Provide reasonable security of the program site;
   9. Establish operating procedures for the program, and makes available to the public either through an internet website or upon request that include but are not limited to: standards hours of operation, a minimum number of personnel required to be onsite during those hours of operation, the licensing and training standards for staff present, an established maximum number of individuals who can be served at one time, and an established relationship with the nearest emergency department of a general acute care hospitals as well as eligibility criteria for program participants;
   10. Train staff members to deliver services offered by the program;
   11. Establish a good neighbor policy that facilitates communication from and to local businesses and residences, to the extent they exist, to address any neighborhood concerns and complaints.; and,
   12. Establish a policy for informing local government officials and neighbors about the approved entity’s complaint procedures, and the contact number of the director, manager, or operator of the approved entity.
5. Requires an entity operating an OPP to provide an annual report to SF that include:
   1. The number of program participants;
   2. Aggregate information regarding the characteristics of program participants;
   3. The number of hypodermic needles and syringes distributed for use onsite;
   4. The number of overdoses experienced and the number of overdoses reversed onsite;
   5. The number of persons referred to drug treatment; and,
   6. The number of individuals directly and formally referred to other services and the type of service.
6. Prohibits a person or entity, including but not limited to property owners, managers, employees, volunteers, clients or participants and employees of SF acting in the course and scope of employment from being arrested, charged or prosecuted under existing law including for attempt, aiding and abetting, or conspiracy to commit a violation of any of those sections, or have their property subject of forfeiture, or otherwise be penalized solely for actions, conduct, or omissions on the site of an OPP approved by SF or for conduct relating to the approval of an entity to operate an OPP, or the inspection, licensing or other regulation of an OPP approved by SF.
7. Prohibits, a person or entity, including but not limited to property owners, managers, employees, volunteers, clients, or participants and employees of SF acting in the course and scope of employment from being subject to civil, administrative, disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action, sanction or penalty or other liability solely for actions, conduct, or omissions on the site of an OPP approved by SF or for conduct relating to the approval of an entity to operate an OPP or the inspection, licensing or other regulation of an OPP approved by SF.
8. Sunsets this bill on January 1, 2026.

EXISTING LAW:

1. Makes the possession of cocaine, cocaine base, heroin, opium, and other specified controlled substances, unless the possession is with the prescription of a physician, dentist, podiatrist, or veterinarian, a criminal act punishable by imprisonment in a county jail for not more than one year, except at specified.
2. Makes the possession of methamphetamine and other specified controlled substances, unless the possession is with the prescription of a physician, dentist, podiatrist, or veterinarian, punishable by imprisonment in a county jail for a term not to exceed one year, except as specified.
3. States that any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution can be punished by imprisonment in the county jail up to three years.
4. Specifies that any person who utilizes a building, room, space, or enclosure specifically designed to prevent law enforcement entry in order to sell, manufacture, or possess for sale any amount of drugs, as specified, shall be punished by imprisonment in the county jail for three, four, or five years.

1. Provides that until January 1, 2021, the possession solely for personal use of hypodermic needles if acquired from a physician, pharmacist, hypodermic needle and syringe exchange program, or any other source that is authorized by law to provide sterile syringes or hypodermic needles without a prescription shall not be criminalized.
2. Authorizes that until January 1, 2021, a physician or pharmacist to, without a prescription or a permit, furnish hypodermic needles and syringes for human use to a person 18 years of age or older, and a person 18 years of age or older may, without a prescription or license, obtain hypodermic needles and syringes solely for personal use from a physician or pharmacist.
3. Classifies controlled substances in five schedules according to their danger and potential for abuse.
4. States that Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance.

FISCAL EFFECT: None

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, across the United States, heroin and opioid use and overdose are on the rise. Legislation in many states including California, has improved access to sterile syringes to prevent HIV and viral hepatitis; broadened the use of the life-saving drug naloxone, which reverses the impact of opiate overdose; and, expanded the use of effective treatment and drug diversion programs. However, with over 190 Americans dying every day (more than 13 Californians daily), we must continue to look for innovative strategies for addressing this epidemic. This bill would extend the harm reduction strategies we are already using in California by enabling SF to permit programs to provide people who use drugs with a safe and hygienic space to use pre-obtained drugs under the supervision of trained staff, in order to save lives, connect individuals with vital services like detoxification, treatment, medical care, and housing and reduce public nuisance and safety concerns such as improperly disposed syringes. Approximately 100 such programs are currently operating in 10 countries around the world (Switzerland, Germany, the Netherlands, Norway, Luxembourg, Spain, Denmark, France, Australia, and Canada).
2. BACKGROUND.
3. Harm reduction. According to the National Institutes of Health’s (NIH) Website, harm reduction can be described as a strategy that aims to reduce the harms associated with certain behaviors. When applied to substance use disorders (SUDs), harm reduction accepts that a continuing level of drug use (both legal and illegal) in society is inevitable and defines objectives as reducing adverse consequences. It emphasizes the measurement of health, social, and economic outcomes, as opposed to the measurement of drug consumption. Harm reduction has evolved over time, from its initial identification in the 1980s, as an alternative to abstinence-only focused interventions for adults with SUDs. At the time, it was recognized that abstinence was not a realistic goal for those with SUDs. In addition, those individuals who were interested in reducing, but not eliminating, their use were excluded from programs that required abstinence. NIH’s Website states there is persuasive evidence that harm reduction approaches greatly reduce morbidity and mortality associated with risky health behaviors. For example, areas that have introduced needle-exchange programs have shown mean annual decreases in HIV seroprevalence compared with those areas that have not introduced needle-exchange programs. Access to and use of methadone maintenance programs are strongly related to decreased mortality, both from natural causes and overdoses, which suggests that these programs have an impact on overall socio-medical health. The most recent addition to the harm reduction continuum is that of OPP’s, supervised injection sites (SISs), or Safe Consumption Services (SCS) which have been successfully implemented with over 98 facilities operating in 66 cities in 10 countries.
4. OPPs, SISs, and SCS. OPPs, SISs, and SCSs are legally sanctioned facilities where people who use intravenous drugs can inject pre-obtained drugs under medical supervision. Supervised injection facilities are designed to reduce the health and societal problems associated with injection drug use. They provide sterile injection equipment, information about reducing the harms of drugs, health care, treatment referrals, and access to medical staff. Some offer counseling, hygienic amenities, and other services. They are also successful in reducing public disorder associated with illicit drug use, including improper syringe disposal and public drug use. Below are examples of some harm reduction programs:
   1. Insite, in Vancouver, Canada, became the first SIS established in North America in 2003. Insite was designed as part of a continuum of care for people with SUDs, mental illness, and HIV/AIDS. In 2017, Insite had 175,464 visits to the site by 7,301 unique individuals with an average of 537 visits per day and an average of 415 injection room visits per day. There were 2,151 overdose interventions and 3,708 clinical treatment interventions (such as wound care and pregnancy tests.) Additionally, there were 443 admissions into Insite’s adjoining detox treatment facility, with an average stay of 11 days. Of note, is that in the 14 years for which data is reported, there has not been a single fatality in the SIS.
   2. The Boston Health Care for the Homeless Program’s (BHCHP) Supportive Place for Observation and Treatment (SPOT) offers engagement, support, medical monitoring, and serves as an entry way to primary care and treatment on demand for eight to 10 individuals at a time who are over-sedated from the use of substances and who would otherwise be outside on a street corner, alleyway, or alone in a public bathroom, at high risk of overdose. In the first four months of SPOT’s opening, the program cared for nearly 200 individuals in over 800 different encounters. While the immediate goal is to reduce the harm associated with the use of opioids and other substances in a population who lacks stable housing and supports, SPOT’s ultimate goal is to help medically complex individuals gain access to treatment for SUDs on demand, including medication-assisted therapies or detoxification. BHCHP states that it will continuously evaluate the positive effect of SPOT on these individuals and the surrounding community.
   3. In January 2017, as part of an effort to halt the surge of heroin and prescription opioid overdose deaths in the region, officials in Seattle and King County, Washington voted to create two SCSs for drug users. The vote to approve the facilities is part of efforts to implement all of the recommendations made by the joint city and county Heroin and Prescription Opiate Addiction Task Force that met throughout 2016. However, implementation and future decision making for specific locations has been slowed for multiple reasons. Multiple cities, like Bellevue, Renton, and Kent, have passed legislation banning the sites, and there has been legal wrangling over a voter initiative on the issue. Another issue is cost. The city, which set aside more than a million dollars in the last budget cycle, likely needs more to open and maintain a facility. A task force presentation suggested six different options ranging from $350,000 to $5 million to start with close to $4 million in annual costs.
   4. In May 2017, the SF Board of Supervisors announced approval for the creation of a SIS Task Force. Based upon that Task Force’s report, the SF Department of Public Health unanimously endorsed the recommendation to open what could become the nation's first legal SIS aimed at curbing the opioid epidemic. There are an estimated 22,000 intravenous drug users in SF, many of whom openly inject in public areas across the city. In addition to saving lives, the facilities are projected to save the city approximately $3.5 million a year in overdose related medical costs. SF residents are also generally supportive of the idea. A poll conducted by David Binder Research in January 2018 among 500 registered voters found that 67% of respondents backed the idea, while 27% opposed it and 6% didn’t know. SF’s effort is on hold pending the authorization under state law for the establishment of an OPP.
   5. In 2017, Philadelphia had the highest opioid death rate of any large U.S. city. More than 1,200 people fatally overdosed in Philadelphia in 2017, one-third more than 2016. In January of 2018, Philadelphia’s leadership gave permission, although not funding, to SCSs within the city. In response, community health leaders incorporated a planned SCS under the name Safehouse, with a board of advisers that includes public-health experts and former Governor Ed Rendell. In February 2019, federal prosecutors in Philadelphia filed a legal challenge against Safehouse. The pending civil lawsuit, which is being pursued jointly by Pennsylvania-based prosecutors and the Department of Justice in Washington, D.C., is the first time the federal government has intervened in the issue of SCSs. According to the suit, a SCS would violate a section added to the controlled Substances Act in the 1980s that makes it illegal to maintain a space for the purpose of making, storing, distributing or using an illegal drug. The attorneys for Safehouse argue that the sections were enacted during the height of the crack cocaine epidemic and that these federal drug laws were not written to obstruct a medical facility focused on savings lives and moving people who are addicted to opioids into treatment.

1. Efficacy of Supervised Drug Consumption Facilities (SCFs). A systematic literature review conducted by independent researchers and published in the September 2017 issue of Current HIV/AIDS Reports, entitled “Public Health and Public Order Outcomes Associated with Supervised Drug Consumption Facilities” states that consistent evidence demonstrates the SCFs mitigate overdose-related harms and unsafe drug use behaviors, as well as facilitate an uptake of addiction treatment and other health services among people who use drugs (PWUD). Further, the review reported that SCFs have been associated with improvements in public order without increasing drug-related crime. SCFs have also been shown to be cost-effective. The literature review suggests that SCFs are effectively meeting their primary public health and order objectives and supports their role within a continuum of services for PWUD.
2. Federal Controlled Substances Act. The Federal Controlled Substances Act prohibits knowingly opening, leasing, renting, using, or maintenance of any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance. Additionally, it is unlawful to manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.
3. SUPPORT. The California Association of Alcohol and Drug Program Executive (CAADPE) states in support of this bill that OPPs or SCSs such as those that could be established under this bill, have been shown to reduce health and safety programs associated with drug use, including public drug use, discarded syringes, HIV and hepatitis infections and overdose deaths. CAADPE states further that the City and County of San Francisco wants and needs these programs that are supported by the Mayor, the Board of Supervisors, the Sheriff, the District Attorney, the Chamber of Commerce, SF Travel and 77% of the public according to a recent poll by the Chamber of Commerce. The California Society of Addiction Medicine, also in support of this bill states that this bill is consistent with the recommendation of the American Medical Association “to support the development of pilot facilities where people who use intravenous drugs can inject self-provided drugs under medical supervision. Studies from other countries have shown that supervised injection facilities reduce the number of overdose deaths, reduce transmission rates of infectious disease and increase the number of individual initiating treatment for substance use disorders without increasing drug trafficking or crime in the areas where the facilities are located.”
4. OPPOSITION. The California Narcotic Officers’ Association, in opposition to this bill, states that this bill contains no requirement that a participant in these programs receive even a single day of treatment, the bill also creates problematic issues, including but not limited to: a) there are tremendous liability issues for any local government when participants inevitably overdose or injure or kill someone else after leaving a program site; b) the bill does not have any strategies for fending off federal intervention; c) the bill fails to provide adequate parameters for who would operate such a program and does not address by whom or in what capacity the staff would be trained; and, d) the concentration of drug addicts at a specific site will inevitably result in those sites being a magnet for drug dealers, since their clientele will be easily within reach.
5. RELATED LEGISLATION.
   1. AB 528 (Low) requires a dispensing pharmacy, clinic, or other dispenser to report the information required by the CURES database no more than one working day after a controlled substance is dispensed. AB 528 is pending in Assembly Business and Professions Committee.
   2. AB 714 (Wood) clarifies that only patients receiving a prescription for an opioid or benzodiazepine medication require the offer of a co-prescription of Naloxone. Exempts, prescribers when prescribing, ordering, or administering medications to a patient in an inpatient health facility and prescribers prescribing to a patient in outpatient-based hospice care from the co-prescribing requirement. AB 714 will be heard in Assembly Business and Professions Committee on March 26.
   3. AB 1327 (Petrie-Norris) requires each narcotic treatment program to provide safe storage products, as defined, to every patient who is eligible to take medication off the premises. AB 1327 is pending referral in the Assembly Rules Committee.
   4. AB 1468 (McCarty and Gallagher) establishes the Opioid Prevention and Rehabilitation Program Fund. Requires a manufacturer or wholesaler that sells or distributes opioid drugs in this state to submit to the department a report, including specified information that details all opioid drugs sold or distributed in this state during the preceding fiscal year. Requires the department to calculate the ratable share of a manufacturer or wholesaler, which is the individual portion of the collective sum of $100 million to be paid by the manufacturers and wholesalers. AB 1468 would require the deposit of the payments and related penalties into the Opioid Prevention and Rehabilitation Program Fund. Requires the department to distribute moneys in the fund to counties for purposes of opioid prevention and rehabilitation programs. AB 1468 is pending in Assembly Health Committee.
6. PREVIOUS LEGISLATION.
   1. AB 186 (Eggman) of 2018, would have authorized SF to approve entities to operate an overdose prevention program for adults supervised by healthcare professionals or other trained staff where people who use drugs could safely consume drugs and access referrals to addiction treatment. This bill was vetoed by Governor Brown who stated in his veto message:

“I am returning Assembly Bill 186 without my signature. This bill authorizes the City and County of San Francisco to approve "overdose prevention programs," including the establishment of centers where illegal drugs can be injected under sanitary conditions. The supporters of this bill believe these "injection centers" will have positive impacts, including the reduction of deaths, disease and infections resulting from drug use. Other authorities-including law enforcement, drug court judges and some who provide rehabilitative treatment-strongly disagree that the "harm reduction" approach envisioned by AB 186 is beneficial. After great reflection, I conclude that the disadvantages of this bill far outweigh the possible benefits. Fundamentally, I do not believe that enabling illegal drug use in government sponsored injection centers-with no corresponding requirement that the user undergo treatment-will reduce drug addiction. In addition, although this bill creates immunity under state law, it can't create such immunity under federal law. In fact, the United States Attorney General has already threatened prosecution and it would be irresponsible to expose local officials and health care professionals to potential federal criminal charges. Our paramount goal must be to reduce the use of illegal drugs and opioids that daily enslaves human beings and wreaks havoc in our communities. California has never had enough drug treatment programs and does not have enough now. Residential, outpatient and case management-all are needed, voluntarily undertaken or coercively imposed by our courts. Both incentives and sanctions are needed. One without the other is futile. There is no silver bullet, quick fix or piecemeal approach that will work. A comprehensive effort at the state and local level is required. Fortunately, under the Affordable Care Act, California now has federal money to support a much expanded system of care for the addicted. That's the route we should follow: involving many parties and many elements in a thoroughly integrated undertaking. I repeat, enabling illegal and destructive drug use will never work. The community must have the authority and the laws to require compassionate but effective and mandatory treatment. AB 186 is all carrot and no stick.”

• 1. AB 2760 (Wood), Chapter 324, Statutes of 2018, requires a prescriber to offer a prescription of naloxone hydrochloride (naloxone) or another drug approved by the U.S. Food and Drug Administration for the complete or partial reversal of opioid depression to a patient identified to be in specific at-risk groups. Requires a prescriber to provide education to patients receiving a naloxone prescription and/or to other patient designated individuals on overdose prevention and use of naloxone.
  2. AB 2495 (Eggman) of 2016, would have decriminalized conduct connected to the use and operation of an adult public health or medical intervention facility that is permitted by state or local health departments and intended to reduce death, disability, or injury due to the use of controlled substances. AB 2495 was held in the Assembly Public Safety Committee.
  3. SB 41 (Yee), Chapter 738, Statutes of 2011, authorizes a county or city to authorize a licensed pharmacist to sell or furnish 10 or fewer hypodermic needles or syringes to a person 18 or older for human use without a prescription.
     
  4. AB 635 (Ammiano), Chapter 707, Statutes of 2014, authorizes licensed health care providers to prescribe naloxone to third parties (family members, friends, or other persons in a position to assist a person at risk of an opioid-related overdose), as well as to issue standing orders for the distribution and/or administration of naloxone.
  5. AB 2145 (Ammiano), Chapter 545, Statutes of 2010, expands who can administer opioid antidote to include persons not otherwise licensed to administer an opioid antidote, in an emergency without fee, as specified, and extends the provisions of SB 767 to 2015.

1. DOUBLE REFERRAL. This bill is double referred, upon passage of this Committee, it will be referred to the Assembly Committee on Public Safety.
2. POLICY COMMENT. AB 186 (Eggman) of 2018, passed through both the Assembly and the Senate before being vetoed by Governor Brown. In the Governor’s veto message on AB 186 (Eggman), which is substantially similar to this bill, the Governor raised two issues: the bill does not require a user to undergo treatment; and the potential liability this bill creates because state law cannot provide for federal law immunity. The Committee may wish to request the author respond to these two issues.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Alcohol and Drug Program Executives (cosponsor)

California Society of Addiction Medicine (cosponsor)

Drug Policy Alliance (cosponsor)

Harm Reduction Coalition (cosponsor)

HealthRIGHT 360 (cosponsor)

San Francisco AIDS Foundation (cosponsor)

Tarzana Treatment Center (cosponsor)

George Gascón, District Attorney, San Francisco City and County

AIDS Legal Referral Panel

American Academy of HIV Medicine’s California/Hawaii Steering Committee

American Civil Liberties Union of California

Any Positive Change, Inc.

APLA Health

California Psychiatric Association

California State Council of the Service Employees International

City and County of San Francisco

Coalition on Homelessness, San Francisco

Community Aid and Resources – UCSC

Community Housing Partnership

Consumer Attorneys of California

C.O.R.E. Medical Clinic, Inc.

Ella Baker Center for Human Rights

Face to Face/Sonoma County AIDS Network

Friends Committee on Legislation of California

Glide Foundation

Harvey Milk LGBTQ Democratic Club

Health Officers Association of California

HIVE

Homeless Health Care Los Angeles

Larkin Street Youth Services

Legal Services for Prisoners with Children

San Francisco Drug Users’ Union

San Francisco Public Defender

Service Employees International Union California

Shanti Project

Tenderloin Neighborhood Development Corporation

Tenderloin People’s Congress

Tides Advocacy

Transitions Clinic Network

Opposition

California Narcotic Officers’ Association

California State Sheriffs’ Association

Analysis Prepared by: Judy Babcock / HEALTH / (916) 319-2097