SENATE COMMITTEE ON HEALTH

Senator Dr. Richard Pan, Chair

BILL NO: SB 689

SUBJECT: Needle and syringe exchange programs

SUMMARY:

Requires the Department of Public Health to authorize or reauthorize a clean needle and syringe exchange project entity pursuant to existing law only if the city or county in which the entity will be operating has adopted an ordinance or resolution approving that authorization or reauthorization.

Existing law:

1. Permits a clean needle and syringe exchange project (NEP) in any city, county, or city and county upon the action of a county board of supervisors and the local health officer (LHO) or health commission of that county, or upon the action of the city council, the mayor, and the LHO of a city with a health department, or upon the action of the city council and the mayor of a city without a health department. [HSC §121349 (b)]
2. Permits Department of Public Health (DPH) to authorize entities that provide specified services, and that have sufficient staff and capacity, and apply for authorization to provide NEP services consistent with state standards in any location where DPH determines that the conditions exist for the rapid spread of HIV, viral hepatitis, or any other potentially deadly or disabling infections that are spread through the sharing of used hypodermic needles and syringes. Requires authorization to be made after consultation with the LHO and local law enforcement leadership, and after a period of public comment, as specified. Prohibits the authorization from being for more than two years. Permits reauthorization before the end of the two-year period in consultation with the LHO and local law enforcement leadership. [HSC §121349 (c) (1)]
3. Requires an application to DPH, in order for an entity to be authorized to conduct a NEP, to demonstrate that the entity complies with specified minimum standards and capacity to provide for drug abuse treatment services; infectious disease screenings; housing services; and, to collect evaluative data in order to assess program impact, as specified. Requires DPH, if the application is provisionally deemed appropriate, to provide for a period of public comment, and to:
   1. Post on its website the name of the applicant, the nature of the services, and the location where the entity will provide the services;
   2. Send a written and e-mail notice to the LHO of the affected jurisdiction; and,
   3. Send a written and email notice to the chief of police, the sheriff, or both, as appropriate, of the jurisdictions in which the NEP will operate. [HSC §121349 (d) and (e)]
4. Requires DPH to establish and maintain on its website the address and contact information of programs providing NEP services. [HSC §121349 (d) and (e)]
5. Requires DPH or a city, county, or a city and county with or without a health department, that acts to authorize an NEP to authorize the exchange of clean hypodermic needles and syringes, as recommended by the United States Secretary of Health and Human Services, subject to the availability of funding, as part of a network of comprehensive services, including treatment services, to combat the spread of HIV and bloodborne hepatitis infection among injection drug users. [HSC §121349.1]

This bill: Requires DPH to authorize or reauthorize an NEP entity pursuant to 2) of existing law above only if the city, county, or city and county in which the entity will be operating has adopted an ordinance or resolution approving that authorization or reauthorization.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, the intent of this bill is not to debate the merit of needle exchange programs, but to address local control issues.  If a city has an ordinance or has passed a resolution to allow needle exchange programs, then non-profits should have the ability to bring their services into that city. If a city does not have an ordinance or resolution, then the non-profit should seek their permission. This bill provides the protocol for collaboration between city, county and state leaders. Local leaders should not be forced to litigate if they oppose the state’s unilateral establishment of needle exchange programs.  City, county and state leaders should focus on a path to substance abuse recovery, not enabling illegal drug use. This bill does not prohibit clean needle and syringe exchange programs; it simply gives control to local governments over where they can be located within their jurisdictions.
2. Injection drug use (IDU) and blood-borne infection. According to DPH, persons who inject drugs (PWID) are at risk for HIV and hepatitis C (HCV) infection. Research has consistently found that increasing access to sterile syringes significantly reduces the risk of HIV and HCV transmission. According to the Centers for Disease Control and Prevention (CDC), in 2013, 3,096 of the estimated 47,352 diagnoses of HIV infection in the U.S. were attributed to IDU. Among PWID, HCV is approximately ten-fold more transmissible than HIV; and 50% to 90% of HIV-infected PWID are co-infected with HCV. IDU has been shown to be the most common means of HCV transmission in the U.S., and an estimated 33% of PWID aged 18-30 are HCV-infected. PWID can substantially reduce their risk of acquiring and transmitting HIV, hepatitis, and other blood-borne infections by using a sterile syringe for every injection. According to the CDC, research shows that barriers such as prescription requirements and legal restrictions on needle possession and distribution can prevent access to clean needles and syringes. Prevention of HCV among PWID is most effective when needle or syringe exchange programs are combined with other prevention services such as behavior-change counseling and addiction treatment services.
3. California’s NEPs. According to DPH, California law supports public health efforts to expand access to sterile syringes through both NEPs and nonprescription syringe sales in pharmacies. NEPs have been operating in California since the late 1980s, providing sterile syringes, collecting used ones, and acting as a point of access to health education and help for people who inject drugs. There are more than 40 NEPs operating in 25 California counties. NEPS provide a range of services in addition to syringe exchange and disposal, including HIV and HCV testing, overdose prevention training, and referrals to drug treatment, housing, and mental health services. Most NEPs also provide first aid and basic supplies, such as clean socks and bottled water, to meet the needs of homeless clients. California NEPs operate in a variety of settings, including in health clinics, mobile vans, storefronts, and churches. Some offer street-based services in multiple locations; others offer services daily during standard business hours; and, others provide home delivery services. Since 1999, the Legislature has acted several times to expand access to sterile syringes through NEPs authorized by local government. Most syringe exchange programs currently operating in California have been authorized by their county boards of supervisors or city councils. AB 604 (Skinner, Chapter 744, Statutes of 2011) granted authority to DPH Office of AIDS to permit organizations to apply directly to DPH for authorization.
4. Orange County NEP (OCNEP). The author of this bill points to a situation in his district where Orange County officials objected to an expansion of a private, nonprofit NEP, indicating that there had been an increase of discarded syringes in the Santa Ana area when the program was operating. OCNEP, which opened a mobile site at the Santa Ana Civic Center in 2016, was denied a new permit last year after the city faulted it for an increase in discarded syringes scattered throughout the area, and for the health risk it posed. The program subsequently received a permit from DPH to continue offering its services throughout the county as a mobile unit. However, Orange County and a number of individual cities, including Costa Mesa, Orange, and Anaheim, filed a lawsuit to keep the mobile exchange from operating, citing similar public health concerns. In November 2018, a San Diego County Superior Court judge ruled in favor of the County, issuing a temporary injunction to keep the program closed. In the ruling, the court praised the NEP for its devotion to harm reduction, but questioned whether the program had enough staff members to safely provide necessary services required under existing law.
5. Prior legislation. AB 1810 (Committee on Budget, Chapter 34, Statutes of 2018) deletes a January 1, 2019 sunset in existing law that permits DPH to authorize entities to operate NEPs.

AB 1743 (Ting, Chapter 331, Statutes of 2014) deletes the limit on the number of syringes a pharmacist has the discretion to sell to an adult without a prescription and extends, until January 1, 2021, the statewide authorization for pharmacists to sell syringes without a prescription, as specified.

SB 41 (Yee, Chapter 738, Statutes of 2011) permits non-prescription syringe sales of a maximum of 30 hypodermic needles or syringes to a person without a prescription through licensed pharmacies throughout the state until January 1, 2015 and makes inoperative until that date, portions of the law establishing the Disease Prevention Demonstration Program (DPDP).

AB 604 (Skinner, Chapter 744, Statutes of 2011) Permits, until January 1, 2019, DPH to authorize entities meeting specified criteria to provide NEPs in any location where DPH determines conditions exist for the rapid spread of deadly or disabling disease spread through the sharing of unclean hypodermic needles and syringes.

AB 1701 (Chesbro) Chapter 667, Statues of 2010) establishes, indefinitely, the DPDP, permitting cities or counties to authorize licensed pharmacists to sell or furnish 10 or fewer hypodermic needles or syringes to a person for use without a prescription, as specified.

AB 1858 (Blumenfield of 2010) was substantially similar to AB 604. AB 1858 was vetoed by Governor Schwarzenegger, who stated, "I signed legislation in 2005 that reflected a careful balance between good public health policy and local decision-making authority. I remain comfortable with that original decision and do not believe it is appropriate to change this balance and instead give authority to the state Department of Public Health to overrule local decisions regarding syringe exchange programs."

SB 1029 (Yee of 2010) contained similar provisions to SB 41. SB 1029 was vetoed by Governor Schwarzenegger who stated, "When I signed legislation my first year in office allowing for a pilot program to allow the sale of syringes through participating counties and registered pharmacies, I was seeking to balance the competing public health, law enforcement and local control issues that this issue requires. I believe this balance was achieved and SB 1029 would remove the ability of local officials to best determine policies in their jurisdiction."

AB 110 (Laird, Chapter 707, Statutes of 2007) permits a public entity that receives General Fund money from the Department of Health Services (now DPH) for HIV prevention and education to use that money to support needle exchange programs. AB 1597 (Laird of 2005) contained substantially similar provisions to AB 110, but was vetoed by Governor Schwarzenegger.

AB 547 (Berg, Chapter 692, Statutes of 2005) creates the Clean Needle and Syringe Exchange Program to permit needle exchange programs without a local declaration of emergency.

AB 946 (Berg of 2003) and AB 2871 (Berg of 2004) would also have repealed the requirement that a city or county authorize its needle exchange program through a declaration of a local emergency. Both measures were vetoed by Governor Davis and Governor Schwarzenegger, respectively.

SB 774 (Vasconcellos of 2003) and SB 1785 (Vasconcellos of 2002) would have permitted the furnishing of syringes without a prescription. Both measures were vetoed by Governor Davis.

AB 136 (Mazzoni, Chapter 762, Statutes of 1999) exempts public entities and their agents and employees who distribute hypodermic needles or syringes to participants in clean needle and syringe exchange projects authorized by the public entity pursuant to a declaration of a local emergency from criminal prosecution.

1. Support. The Orange County Board of Supervisors writes that the current process sidesteps local control and allows the state to decide what is best for a local community. This bill does not prohibit NEPs, but simply gives control to local governments over where they should be located. The California State Sherriff’s Association states that due to the inherent public safety risks associated with needle exchange programs, and in the spirit of local control, communities should have a say as to whether such a program is the right course of action for their neighborhoods. The Orange County Recovery Collaborative states that DPH controlling NEPs does not have the benefit of intimately knowing what each individual municipality needs, what the demographics are, or where things are located, such as schools and after school programs where children are playing. Local municipalities should be able to work in collaboration with their service providers and residents to determine how they can best make NEPs work within their jurisdiction. Lighthouse Treatment Center writes that the studies done on NEP were pre-fentanyal days and we are losing close to 200 people a day to the opioid crisis. Complete abstinence is needed to live a productive life, and the term “harm reduction” is widely misused. You cannot just use a little heroin here and there - addiction is chronic, progressive, and fatal. Windstone Addiction Centers, Inc. states that when it comes to IDU, whatever the substance is or whether you have a clean or dirty needle doesn’t make any difference in overdosing. The term harm reduction has been falsely used and applied to substance use. Harm reduction only applies to the spread of disease. As it stands right now, DPH is authorizing mobile NEPs to operate with schools, parks, recovery homes and heavily residential areas within the boundaries. The hours of operation have been approved in several areas with schools within the boundaries on weekdays from 2pm to 5pm. This is unacceptable as NEPs logically draw in addicts, which then draw in drug dealers to sell the dope to put in the needles, which also draw in the human traffickers to easily prey on their victims.
2. Opposition. According to the Health Officers Association of California, NEPs are a proven way to minimize the burden of HIV and hepatitis among PWID and those who come into contact with them. These programs have already saved lives across the state and by limiting DPH’s authority this bill would put NEPs out of reach for some of California’s most vulnerable residents. Drug Policy Alliance writes that under the current program, DPH has authorized eight programs, only two of which have been met with community opposition, which was duly addressed through the current process. The rationale for adding an additional barrier to authorization does not reflect the real-time needs and experiences of counties across the state, nor does it represent public health evidence or accepted best practices for HIV and viral hepatitis prevention. In 2018, 20 counties, representing 95% of new HIV cases in the state, were required to integrate measures and interventions to address injection-related infections, including expansion of evidence-based practices such as syringe access. Those counties are well into their community plans to address injection-related infections, and should this bill pass would require a significant amount of time and effort to pass a local ordinance that would greatly delay implementation of needed public health programs. Removing the authority from DPH to authorize NEPs shifts the burden of responsibility to counties that are often already under-resourced and in need of proven public health interventions. APLA Health states that the ability for DPH to authorize NEPs is in response to ever-changing trends in public health data related to IDU, and has allowed programs and local health departments to act swiftly to curb a potential outbreak. This bill would take California’s public health efforts backwards and significantly hinder the state’s ability to end HIV and viral hepatitis epidemics. OCNEP writes that in their leadership’s attempts for collaboration with local officials and agencies in Orange County, they have dealt with a willful blindness to the evidence behind syringe exchange programs and hostile opposition. Instead of collaboration, local elected officials have passed ordinances against NEPs and initiated litigation without offering any alternatives for syringe access to individuals who need it. OCNEP’s former clients have reported that they are being turned away from pharmacies when they request clean syringes and are not able to afford the life-saving naloxone that we provided at no cost. Without access to clean syringes, supplies, and naloxone, our former clients have reported to us that they are now experiencing skin infections, blood borne diseases, and even death. By not providing a single solution to issues that existed with OCNEP, it is clear that this bill’s supporters are comfortable with continuing to ignore the very real problem of substance use and overdose deaths in Orange County.

SUPPORT AND OPPOSITION:

Support: Anaheim Lighthouse

Association of California Cities - Orange County

California State Sherriff’s Association

City of Anaheim

Office of the District Attorney, Orange County

Orange County Board of Supervisors

Orange County Recovery Collaboration

Windstone Addiction Centers, Inc.

Fourteen Individuals

Oppose: Access Support Network of San Luis Obispo and Monterey County

APLA Health

California Society of Addiction Medicine

Drug Policy Alliance

Harm Reduction Coalition

Health Officers Association of California

Humboldt Area Center for Harm Reduction

Mendocino County AIDS/Viral Hepatitis Network

North Coast Substance Abuse Council, Inc.

Orange County Needle Exchange Program

Three Individuals

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