Center for Lawful Access and Abuse Deterrence

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1 August 8, 2014 Karen Perry Executive Director NOPE Task Force 3223 Commerce PL West Palm Beach, FL Re: Overdose Death Prevention Act Dear Karen: Thank you for your April regarding Florida s Overdose Death Prevention Act (ODPA). This letter addresses two requests you made in that first, to revise the language of the ODPA to require emergency department (ED) staff to contact the family, and, second, to identify states that have laws similar to the Marchman Act. Enclosed is our draft version of the ODPA. As requested, this version requires the attending ED physician to make all reasonable efforts to notify the patient s primary care physician, the emergency contact or next of kin, and, if the patient is currently undergoing addiction treatment, the treatment provider, that the patient has suffered a life-threatening, nonfatal overdose. To implement a warm hand off, the ODPA also requires the attending physician to make all reasonable efforts to establish face-to-face contact between the patient and an addiction medicine physician, to encourage the patient to voluntarily obtain treatment, and to provide the patient s emergency contact or next of kin with information and materials on addiction treatment. In drafting this bill, we intended to write legislation that would be forceful but also legally sound. We believe that the bill complies with the Health Insurance Portability and Accountability Act ( HIPAA ). Although HIPAA prohibits health care providers from using or disclosing patient health information, 1 disclosure is permitted in cases of serious and imminent threat to the health and safety of a person, to individuals reasonably able to prevent or lessen the threat. 2 Non-fatal overdoses are serious and imminent threats given that studies indicate that most individuals who overdose once will overdose again with potentially fatal consequences. 3 We suggest verifying the concurrence of the Department of Health and Human Services ( HHS ) with this interpretation CFR (a) 2 42 C.F.R (j)(1)(i). 3 R. Pfab, et al., Cause and Motivation in Cases of Non-Fatal Drug Overdoses in Opiate Addicts, 44 Clin Toxicol 255 (2006). Center for Lawful Access and Abuse Deterrence 1000 Potomac St., NW, Suite 150-A Washington, DC

2 The bill also complies with 42 CFR part 2, which prohibits disclosure of medical information to non-medical personnel if the medical records are maintained in connection with a federally assisted drug abuse prevention program. 4 Such a program includes any individual or entity (other than a general medical care facility) that provides alcohol or drug abuse diagnosis, treatment or referral for treatment, or an identified unit or medical personnel or staff in a general medical care facility whose primary function is the provision of alcohol or drug abuse diagnosis, treatment or alcohol. 5 A drug abuse program is federally assisted if it is conducted by any federal department or agency, operated with a license, certification, or registration provided by any federal department or agency, is supported by funds provided by any department or agency, or is assisted by the IRS through the allowance of tax deductions or the granting of tax exempt status. 6 Emergency care records pertaining to an overdose are separate from records of treatment through an abuse prevention program, and 42 C.F.R. part 2 has an exception for a bona fide medical emergency, 7 a term that the regulation does not define. Therefore, for the same reasons that an overdose is serious and imminent, we contend that it is also a bona fide medical emergency within the meaning of 42 C.F.R. part 2 s exception. Here again, we suggest verifying this interpretation with HHS. We would like to alert you to an impediment that may come up at the state level. Florida statute (7)(a) prohibits the use or disclosure of medical records to persons other than the patient, the patient s legal representative, and the patient s involved health care providers, without the patient s written authorization. Unlike HIPAA and 42 C.F.R. part 2, the Florida statute does not have an exception for a serious or imminent threat or a bona fide medical emergency. Our bill proposes an amendment to the Florida statute that would allow emergency care providers to disclose medical information in cases of non-fatal overdoses. We also added a provision to ensure that the patient is screened for a substance use disorder while in the emergency room using the SBIRT method in order to determine the level of care necessary. The second purpose of this letter is to provide you with the information you requested regarding whether states other than Florida have laws similar to the Marchman Act. Our research indicated that 38 jurisdictions have some form of involuntary commitment statutes, although the requirements of the laws vary. 8 Three states have laws similar to the Marchman Act Indiana (The Jennifer Act), Kentucky (Casey s Law), and Ohio (Ohio SB 117, also known as Casey s Law). 9 Each of the three laws permits parents, relatives, and friends of the individual who overdosed to petition the court for treatment, but the laws differ in the requirements for commitment C.F.R. 290ee-3; 42 C.F.R C.F.R C.F.R. 2.12(b) C.F.R. 290ee-3(b). 8 Deborah Brauser, Wide Variation in Commitment Laws for Substance Abuse, Medscape (updated May 17, 2011), 9 Indiana Code ; Kentucky Revised Statute ; Ohio Revised Statute

3 Under Indiana s Jennifer Act, a court can order commitment for outpatient treatment if the individual: 1. Abuses controlled substances or alcohol; 2. Is likely to benefit from outpatient therapy, 3. Is not likely to be either dangerous or gravely disabled by participating in therapy, and 4. Is recommended for an outpatient program by the individual s examining physician. The court can later order that individual be moved to an inpatient facility if the individual fails to meet the requirements of the outpatient program. Under the Kentucky and Ohio laws, a court can order commitment for treatment (of any kind) if the individual: 1. Suffers from alcohol or other drug abuse, 2. Presents an imminent danger to self, family, or others as a result of alcohol or other drug abuse, or there exists a substantial likelihood of such a threat in the near future, and 3. The person can reasonably benefit from treatment. We hope that this information and our draft of the ODPA will be of help to you moving forward. We look forward to our continued partnership in the effort to make meaningful legislative progress for drug abuse prevention and treatment. Sincerely, Michael C. Barnes Executive Director 3

4 OVERDOSE DEATH PREVENTION ACT: PROPOSED LANGUAGE The Single State Authority on Drugs and Alcohol shall implement the following collaborative plan of action to address assessment and transfer of survivors of unintentional overdoses for further care to addiction treatment programs licensed by the state: (a) Rules regarding care when the patient suffers a life-threatening unintentional overdose. The following rules apply in which an emergency care practitioner determines that the patient suffered a life-threatening unintentional overdose: (1) In no case shall the patient be transferred to a behavioral health program prior to medical stabilization. (2) Prior to the patient s discharge, an emergency care practitioner trained in Screening, Brief Intervention, and Referral to Treatment (SBIRT) as defined by the Substance Abuse and Mental Health Administration (SAMHSA), shall perform an SBIRT diagnosis on the patient and refer the patient to substance use treatment accordingly. If no emergency care staff member is trained in SBIRT, the emergency care practitioner shall refer the patient to a third-party practitioner who can conduct the SBIRT diagnosis. (3) Prior to the patient s discharge, the attending physician shall make all reasonable efforts to: (i) Contact the patient s primary care physician and inform him that the patient has suffered a non-fatal overdose and may require substance use treatment; (ii) If the patient is currently in substance use treatment, contact the treatment provider s medical director or the patient s addiction medicine physician, in addition to the patient s primary care physician, and inform him that the patient has suffered a non-fatal overdose and may require a reevaluation of the patient s treatment plan; (iii)notify the patient s emergency contact or next of kin of the following: (A) The patient has been admitted to emergency care; (B) The patient has suffered a life-threatening, non-fatal overdose; and (C) The substance or substances that the attending physician believes that the patient ingested that may have contributed to the overdose. (iv) Provide the patient s emergency contact or next of kin with the following information:

5 (A) Materials on addiction treatment, including a list of treatment facilities and practitioners; and (B) Information on any local involuntary treatment laws and the process for obtaining a court order for involuntary treatment of a loved one; (v) Encourage the patient to voluntarily obtain addiction treatment; and (vi) Establish face-to-face contact between the patient and an addiction treatment specialist. (b) Florida Statute (7)(a), which conveys the circumstances in which medical records may be disclosed without written authorization from the patient, shall be amended to include the following language: (6) (i) Is necessary to prevent or lessen a serious threat to the health or safety of a person or the public; and (ii) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat..

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