May 21, 2014 – Recognizing the alarming rise in heroin and other opioid use and overdoses in recent years, the Wisconsin Legislature in 2014 enacted two laws that directly affect emergency medical technicians (EMTs), firefighters, law enforcement, ambulance providers, first responders, and health care providers in this state who may be called on to treat persons experiencing opioid distress.
Act 194 grants immunity from certain criminal prosecutions for offenses relating to a controlled substance or a controlled substance analog.1
Act 200 governs the prescription, possession, dispensing, delivery, and administration of opioid antagonists and training and agreements for administering opioid antagonists; requires EMTs to carry opioid antagonists; and grants immunity for certain individuals who prescribe, dispense, deliver, or administer opioid antagonists.2
Addictive Nature of Opioids
Wisconsin has adopted new laws that aid individuals who are undergoing the adverse effects of opioid drugs, including withdrawal from this powerful group of drugs. Opioids are prescribed if a person has severe pain. Codeine, Percocet, and morphine are some opioid prescription drugs. Opioids also are available as street drugs, like heroin. Opioids can be injected into the body, smoked, snorted, or inserted by other means. Whether taken by prescription or by street purchase, opioids are highly addictive, and the addiction leads to an intense dependence on opioids.
Over time, a person who is taking an opioid develops tolerance, which means a greater amount of the opioid is needed to achieve the effects of the drug. People taking an opioid will feel euphoric. If another dose is not taken, however, withdrawal symptoms set in, including sweating, nausea, vomiting, drowsiness, dry mouth, and muscle aches. But the most serious withdrawal symptom is respiratory depression. Because, for the addict, the withdrawal symptoms are severe, the cravings strong, and the psychological and social issues pervasive, treatment includes temporarily substituting other drugs, as well as psychological and social welfare therapies.
What happens when a person is in withdrawal? Before a person arrives at a hospital emergency room, what can be done by first responders? And is there a way to make sure that individuals suffering from withdrawal receive emergency care?
Immunity from Criminal Prosecution
Newly enacted section 961.443 is entitled “Immunity from criminal prosecution; possession.” Under this law an “aider” is immune from prosecution under Wisconsin’s Uniform Controlled Substances Act3 under the specific circumstances surrounding (or leading to his or her commission of) an act.
An aider under this law is a person who does any of the following:
(a) Brings another person to an emergency room, hospital, fire station, or other health care facility if the other person is, or the person believes him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.4
(b) Summons a law enforcement officer, ambulance, emergency medical technician, or other health care provider, to assist another person if the other person is, or the person believes him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.
(c) Dials the telephone number “911” to obtain assistance for another person if the other person is, or the person believes him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog. If the person is in an area in which the telephone number “911” is not available, the number for an emergency medical service provider is substituted in the statute.
Who Does the New Law Governing Opioids Apply To?
The new law applies to volunteer and paid firefighters, law enforcement officers, EMTs, first responders, health care professionals, and ambulance service providers. Although there are differences as to how the law applies to each group, each of these categories of workers is somehow affected.5
What is an Opioid-related Drug Overdose?
The new law defines an opioid-related drug overdose as “a condition including extreme physical illness, decreased level of consciousness, respiratory depression, coma, or the ceasing of respiratory or circulatory function resulting from the consumption or use of an opioid, or another substance with which an opioid was combined.”6
Can Any Person Possess an Opioid Antagonist?
Yes, the newly enacted legislation permits any person to possess an opioid antagonist.7 However, the law distinguishes possessing, delivering, dispensing, or administering an opioid antagonist. Also, pharmacists, advanced practice nurses, physicians, and physician assistants are all bound by other legal authority as well.8
Does the Good Samaritan Statute Provide Some Immunity?
Yes, the new laws grant general immunities; but there are significant exceptions to the immunities granted under the “Good Samaritan Statute”9 with important distinctions made if a person possesses, delivers, dispenses, or administers opioid antagonists.
In Wisconsin, the legal definition of administer, in the specific instance applicable to this new law, means the direct application of an opioid antagonist by any person.10
General Rules of Immunity
The general rule under the Good Samaritan Statute is that “any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care.” As with most laws, there are, of course, numerous exceptions, which are set out below.
The new law creates two additional general rules of immunity.
The first, which addresses delivering or dispensing opioid antagonist, is that “any person who, acting in good faith, delivers or dispenses an opioid antagonist to another person shall be immune from civil or criminal liability for any outcomes resulting from delivering or dispensing the opioid antagonist.” There are inclusions to this specific law as to the delivery or dispensing of an opioid antagonist and these include pharmacists,11 advanced practice nurses,12 physicians, and physician assistants.13
The second general rule of immunity for administering an opioid antagonist is that “any person who, reasonably believing another person to be undergoing an opioid-related drug overdose, administers an opioid antagonist to that person shall be immune from civil or criminal liability for any outcomes resulting from the administration of the opioid antagonist to that person.”14 This general rule contains crucial exceptions, which are set out below.
The Exceptions to the Three General Rules Set Out Above
The legislature created a new exception to the general rule of immunity,15 which is in addition to the general rule of immunity that has been the law for decades.16
First, the general rule does not apply as set out below, and second, individuals who administer an opioid antagonist do not have civil liability exemption when: employees trained in health care or health care professionals render emergency care for compensation and within the scope of their usual and customary employment or practice, at a hospital or other institution equipped with hospital facilities, at the scene of any emergency or accident, enroute to a hospital or other institution equipped with hospital facilities, or at a physician’s office.17
The other major exception to the general rule of immunity for those who administer an opioid antagonist is that the civil liability exemption for emergency medical care does not extend to law enforcement officers or firefighters when they administer naloxone or another opioid antagonist to a person they reasonably believe to be undergoing an opioid-related drug overdose if they do not act pursuant to an agreement and any training obtained under the new law.18 However, if a police officer or firefighter who acts pursuant to an agreement and any training obtained under the new law, reasonably believes a person is undergoing an opioid-related drug overdose, and administers naloxone or another opioid antagonist to that person, the police officer or firefighter is immune from civil or criminal liability for any outcomes resulting from the administration of the opioid antagonist.
What are Ambulance Providers Obligated to Do Under the New Law?
Every ambulance service provider in Wisconsin must ensure that every EMT under the ambulance service provider’s supervision who has obtained the training necessary to safely and properly administer naloxone or another opioid antagonist has a supply of naloxone or the other opioid antagonist available for administration when he or she is performing his or her duties as an EMT. There is an exception if naloxone or other opioid antagonist is not available to the ambulance service provider.19
In addition, every ambulance service provider in Wisconsin must require each certified first responder and EMT under the ambulance service provider’s supervision to keep a record of each instance in which the certified first responder or EMT administers naloxone or another opioid antagonist to an individual who is undergoing or who is believed to be undergoing an opioid-related drug overdose and submit those records as required by law.20
What About Fire Departments and Law Enforcement Agencies?
Fire departments and law enforcement agencies may enter into written agreements to affiliate with either an ambulance service provider or a physician to be trained to safely and properly administer naloxone or another opioid antagonist to individuals who are undergoing or who are believed to be undergoing an opioid-related drug overdose, as well as to obtain a supply of naloxone or another opioid antagonist.21
Labeling Containers of Antagonists
Are there label requirements and are brand names permitted on the containers? Yes, the law outlines what must be disclosed on each container of the antagonist.22
Penalties Relating to Prescription Drugs and Devices
The law’s penalties23 governing prescription drugs and prescription devices apply and they include fines, imprisonment of not more than six months, or both. However, any person who delivers (or who possesses with intent to manufacture or deliver) a prescription drug in violation of this law is guilty of a felony. The law further states that in any action or proceeding brought for the enforcement of this specific law, it is not necessary to negate any exception or exemption contained in the law, and the burden of proof of any such exception or exemption is on the defendant. A violation of the opioid antagonist law as to possession is not punishable as a misdemeanor or felony.24
Other Relevant New Laws
2013 Wisconsin Acts 194 and 200 are summarized above. If these laws apply to you, you should also review the following new laws:
2013 Wisconsin Act 195: Amends and creates statutes relating to opioid treatment programs and makes an appropriation.
2013 Wisconsin Act 196: Amends and creates statutes relating to development of a system of short-term sanctions for individuals who violate conditions of extended supervision, parole, probation, or a deferred prosecution agreement or attempt to possess a schedule I or II controlled substance or analog that is a narcotic and grants rule-making authority.
2013 Wisconsin Act 197: Creates statutes relating to providing grants to counties that offer substance abuse treatment and diversion from incarceration and makes an appropriation.
2013 Wisconsin Act 198: Amends and creates statutes relating to programs for the disposal of drugs, including controlled substances, and certain medical or drug-related items, and the regulation of prescription drugs.
2013 Wisconsin Act 199: Amends and creates statutes relating to the identification presentation, name recording, monitoring for certain prescription drugs, and authorizes the exercise of rule-making authority.
You should seek specific legal advice for your particular matters; there are additional federal and state statutes and case law which affect this legal topic and the outcome of your unique individual situation.
1 2013 Wis. Act 194.
2 2013 Wis. Act 200.
3 Wis. Stat. section 961.573 governs the possession of drug paraphernalia, and Wis. Stat. section 961.41(3g) governs the possession of a controlled substance or a controlled substance analog.
4 A controlled substance and a controlled substance analog are defined in the statutes (in Wis. Stat. section 961.01(4) and (94m)). In broad terms, they are substances that have a stimulant, depressant, narcotic, or hallucinogenic effect on the central nervous system.
5 2013 Wisconsin Acts 194 through 200, and sec. 256.40(1).
6 Wis. Stat. § 256.40(1)(d).
7 Wis. Stat. § 450.11(1i)(b)1.
8 Wis. Stat. § 450.11(1i)(b).
9 Wis. Stat. section 895.48, which is entitled “Civil liability exemption; emergency medical care.”
10 Wis. Stat. § 450.01(1)(d).
11 Wis. Stat. § 450.11(1i)(a)2.
12 Wis. Stat. § 441.18(3).
13 Wis. Stat. § 448.037(3).
14 Wis. Stat. § 450.11(1i)(c)3.
16 Wis. Stat. § 895.48.
17 I wrote an extensive article on Wis. Stat. section 895.48, “The Good Samaritan Statute: Civil Liability Exemption for Emergency Care,” published in the Wisconsin Lawyer in July 2007, which addressed what is now Wis. Stat. section 895.48(1g) and I refer you to it for further explanation of the general rule and the general exception and the case of Mueller v. McMillian Warner Ins. Co., 2006 WI 54, 290 Wis. 2d 571, 714 N.W.2d 183. The other exemptions for emergency medical care set forth in section 895.48(1m) regulate athletic contests and govern AEDs.
18 See Wis. Stat. § 256.40(3)(a).
19 Wis. Stat. § 256.40(2)(c)1.
20 Wis. Stat. § 256.40(2)(c)2., 3.
21 Wis. Stat. § 256.40(3)(a)1., 2.
22 Wis. Stat. § 450.11(4).
23 Wis. Stat. § 450.11.
24 Wis. Stat. § 450.11(9).
Article Copyright 2014 by Barry W. Szymanski