During the past few months PSBA has received a growing number of questions relating to a September 18, 2015, letter sent to superintendents jointly by the Secretaries of Education, Health and Drug and Alcohol Programs, encouraging school districts to consider stocking and being prepared to administer the drug naloxone (aka “Narcan”), an antidote for heroin or other opioid overdoses. The letter cited Act 139 of 2014, signed into law September 30 of 2014, as providing authority for that. PDE also provided an information sheet at this link that points to some additional resources: PDE Information Sheet
To help address these questions, in January the PSBA Legal Services Team provided an advisory to members of the Pennsylvania School Board Solicitors Association about various issues, considerations and recommendations relating to the stocking and potential administration of Narcan in public schools, to assist them in advising school clients. This article provides the main points that were included in that advisory.
This is the bottom line expressed by the Legal Services Team to solicitors. While the applicability of Act 139’s authority to schools is less explicit than would be desirable, it appears safe to conclude that the authority does extend to the school context. In addition, although Act 139’s liability protections are more limited than would be desirable, the team’s research indicates that the risks of injury posed by even erroneous Narcan administration appear to be extremely low. Accordingly, if a local program is implemented with proper procedures, oversight and training, danger to students and/or potential liability on the part of the school entity or its staff should be very remote worries.
We cannot stress enough, however, that consultation with the school physician, school nurse and solicitor are critically important before deciding to move ahead with implementation of such a program.
The five main things Act 139 does are:
- Establishes a form of good Samaritan immunity from criminal prosecution for persons who call for help in such an emergency, using their real names and stay with the overdosing person until EMS or law enforcement arrive.
- Establishes procedures for first responder agencies to follow in order to stock and equip their responders with the drug under the supervision of the medical director of an emergency medical services agency.
- Authorizes medical professionals otherwise having prescription authority to prescribe and dispense naloxone to “a person at risk of experiencing an opioid-related overdose or family member, friend or other person in a position to assist a person at risk of experiencing an opioid-related overdose.”
- Exempts from the provisions of the Drug Act the handling of naloxone by a first responder or “a person or organization” acting at the direction of a health care professional so long as their naloxone administration is without charge.
- Establishes immunity from civil, criminal or professional licensure liability for prescribing health care professionals, as well as for a “person” relating to their involvement with naloxone, so long as they act in good faith and with reasonable care, which are to be presumed if they have had the free training being offered.
Act 139 does not appear to have been written with school entities specifically in mind and lacks express language including school entities. It is somewhat concerning that in contrast to the extensive language addressing how the authority given to first responder organizations is to operate, applicability to school entities depends on the reasoning that a school entity is a “person in a position to assist a person at risk of experiencing an opioid-related overdose.” On the other hand, that reasoning is supported by the definitions of “person” in the Statutory Construction Act and in the Controlled Substance, Drug, Device, and Cosmetic Act, which specifically include government entities.
Also concerning is the dependence of the liability protection immunity upon “good faith” and “reasonable care,” factual issues that might need to be litigated, resulting in less protection than a school entity is given by the Political Subdivision Tort Claims Act. Add to that the shadow Act 139 casts over the continuing applicability of the PSTCA to naloxone-related claims by the fact that Act 139 expressly preserves the immunity protection given to first responders and good Samaritans by the Judicial Code provisions at 42 Pa. C.S. Section 8332, while saying nothing about preserving any other existing statutory immunities. We cannot predict what a court might do with that.
Nonetheless, the definitions of “person” in the Statutory Construction Act and the Drug Act provide a sound basis for concluding that school entities are within the authority and protections given by Act 139, such as they are. In addition, our research about nalaxone and its use appears to indicate that stocking and using it in accordance with Act 139 should present a very low risk of harm or liability. What we have learned is that:
- Naloxone has been used safely by health professionals for over 40 years.
- While for a person overdosing, the administration of nalaxone may cause a very unpleasant physical experience, serious side effects are very rare.
- Nalaxone has no known potential for abuse.
- If naloxone is administered to a person not using opioids, it has virtually no effect at all, and would feel more or less the same as an injection of water (Naloxone FAQs).
- Although the possibility of an allergic reaction to nalaxone has not been ruled out, available information sources do not indicate that there have been reports of actual cases of an allergic reaction.
- For all of the above reasons, there is growing support for making it an over-the-counter drug that does not require a prescription.
Should a school entity decide, after consultation with the solicitor, school physician and school nurse to implement a preparedness for administration of Narcan program, it will be important to develop appropriate procedures and protocols. These would not necessarily appear in a board-level policy, but if a board level policy is preferred for these matters, policies pertaining to automatic external defibrillators (AEDs) probably will be the most readily adapted for this purpose.
It is recommended that procedures and protocols adopted in whatever form should do the following at a minimum:
- Identify the school physician as the prescribing and supervising medical professional.
- Specify that the health care professional supervising building-level administration of naloxone is the school nurse.
- Require anyone designated the responsibility to administer naloxone or have custody of naloxone stocks to complete the training.
- Establish security and record-keeping/inventory procedures for stocking and storage and to ensure supplies are refreshed as recommended.
- Establish internal and external reporting procedures for any incidents where an overdose occurs and naloxone is administered.
- Provide cross references to ensure compliance with existing policies and procedures providing for:
- Reporting of crimes code violations as required by memoranda of understanding with law enforcement and Safe Schools provisions of the School Code and Chapter 10 regulations (use of controlled substances is an offense that the Safe Schools regulations in Chapter 10 mandates be reported to law enforcement, as reflected in the PDE’s model MOU).
- Referral to Student Assistance Programs.
- Outline a plan for educating students and staff about:
- The availability of nalaxone and what it does.
- The immunities from criminal prosecution Act 139 provides for persons who report a suspected overdose using their real name and remain with the overdosing person until EMS or law enforcement arrive, as well as for the person whose overdose they report.
- How students and staff should report suspected overdoses.
Other matters that will have to be considered and decided include whether staff other than health care professionals should be authorized to administer Narcan in emergency situations, something that should be decided in consultation with the school physician, school nurse and solicitor. In addition, should students who properly report overdoses and qualify for immunity from criminal prosecution also be given a similar assurance with regard to school discipline so as not to discourage overdose reporting? If yes, that would require a board level policy or amendment to existing student discipline policies and student codes of conduct.
We have no doubt that school officials, solicitors and school health personnel will discover additional layers of this “onion” that will need to be considered as well, and the PSBA Legal Services Team is here to assist solicitors and other members in developing solutions.