Request By:
Sen. Robert Stivers
Opinion
Opinion By: JACK CONWAY,ATTORNEY GENERAL;Matt James,Assistant Attorney General
Opinion of the Attorney General
Senate President Robert Stivers has requested an opinion of this office on whether a harm reduction and syringe exchange program ("HRSEP") may provide syringes regardless of whether the participant has syringes to exchange. We advise that an HRSEP may provide syringes regardless of whether the participant has syringes to exchange.
KRS 218A.500(1) provides that "'drug paraphernalia' means all equipment . . . used, intended for use, or designed for use in . . . introducing into the human body a controlled substance." Drug paraphernalia expressly includes "hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body. " KRS 218A.500(1)(k) . However, S.B. 192 (2015) amended KRS 218A.500 to add a new section allowing local health departments to operate HRSEPs, codified at KRS 218A.500(5), which provides:
(a) This section shall not prohibit a local health department from operating a substance abuse treatment outreach program which allows participants to exchange hypodermic syringes and syringes.
(b) To operate a substance abuse treatment outreach program under this subsection, the local health department shall have the consent, which may be revoked at any time, of the local board of health and:
(c) Items exchanged at the program shall not be deemed drug paraphernalia under this section while located at the program.
KRS 218A.500(5) allows local governments to operate HRSEPs with the consent of the local government, and items exchanged at HRSEPs are not considered drug paraphernalia while at the HRSEP.
After the passage of S.B. 192, the Kentucky Department for Public Health issued guidance to local governments establishing HRSEPs on May 11, 2015. 1 The guidance stated that "HRSEPs typically use one of three types of syringe transaction models: needs based negotiated model, strict one-for-one-exchange, and one-for-one plus exchange." 2 The guidance explained the various models:
In the needs based negotiation model, the program does not set a limit on the syringes a participant can receive regardless of the number of returned syringes. Although HRSEPs using this model generally encourage participants to return used syringes, participants can still receive sterile syringes even if they do not. The number of syringes distributed is negotiated based on the participant's need, the frequency of injection and the length of time until she/he can next access the HRSEP. . . .
Strict one-for-one exchange programs provide HRSEP participants with the exact same number of sterile syringes that the participant brings in for disposal. . . .
. . . .
One-for-one plus exchange programs modify the basic concept of the strict one-for-one exchange programs by providing a predetermined number of extra syringes beyond one for one. For example, these programs often provide 10 extra syringes regardless of the number of disposed syringes brought in, and even if no syringes were returned for disposal they could receive 10 new syringes. Other such programs allow two-for-one exchange models up to a certain limit. 3
A needs based negotiated model encourages participants to return used syringes, but does not require return of syringes to receive new ones. A strict one-for-one exchange provides participants with the same number of syringes that they bring in for disposal. One-for-one plus models set limits on the number of syringes provided, and may or may not require an exchange of at least one syringe. Following these guidelines, the Louisville Metro Department of Public Health and Wellness has established an HRSEP using the needs based negotiation model, which provides that "syringes will be made available regardless of whether the participant has syringes to exchange." 4 At issue is whether an HRSEP may use models that do not require the exchange of at least one syringe consistent with KRS 218A.500(5).
KRS Chapter 218A contains no definition of the terms "exchange" or "exchanged" used in KRS 218A.500(5)(a) and (c). Therefore, "the words used in the statute are to be given their ordinary meaning."
Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000); KRS 446.080(4). Black's Law Dictionary (10th ed. 2014) defines "exchange" as "the act of transferring interests, each in consideration for the other." It further defines "consideration" as "something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act." Id. "'Consideration' is '[a] benefit to the party promising, or a loss or detriment to the party to whom the promise is made.'"
Smith v. Bethlehem Sand & Gravel Co., LLC, 342 S.W.3d 288, 293 (Ky. Ct. App. 2011). "Adequate legal consideration need not be an exact monetary quid pro quo. "
Justice v. Justice, 237 S.W.2d 866, 867 (Ky. 1951). "Agreeing to do, and doing that which one is not legally bound to do, constitutes a sufficient consideration to uphold a contract.
Elizabethtown Lincoln Mercury v. Jones, 231 S.W.2d 42, 43 (1950). The term "exchange" requires a transfer of interests in consideration for each other, but the interests exchanged need not be an exact quid pro quo. Rather, a benefit to the party promising or a loss to the party to whom the promise is made is sufficient.
As applied in this context, "exchange" does not require a quid pro quo exchange of syringes; it only requires a benefit to the party promising or a loss to the party to whom the promise is made. An HRSEP may exchange the loss of a needle for a promise to participate in the program, and that is sufficient for an exchange in the ordinary sense of the term. Receipt of a used syringe in return is not expressly required in the language of KRS 218A.500(5), and "in determining legislative intent, we must refer to the language of the statute and are not at liberty to add or subtract from the legislative enactment or interpret it at variance from the language used."
Johnson v. Branch Banking & Trust Co., 313 S.W.3d 557, 559 (Ky. 2010). Further, "it is presumed that a legislature had, and acted with respect to, full knowledge and information as to the subject matter of the statute and the existing conditions and relevant facts relating to it." 82 C.J.S. Statutes § 378. If the legislature had wished to limit HRSEPs to a specific type of program, rather than allowing flexibility in determining which type of HRSEP to offer, it could have done so. In the absence of a more explicit definition of "exchange" in KRS 218A.500(5), we advise that an HRSEP may exchange syringes for whatever consideration it deems appropriate, such as participation in the HRSEP program, and does not require a quid pro quo exchange of syringes. 5
In summary, an HRSEP may provide syringes to participants for whatever consideration it deems appropriate, which may, but does not necessarily include, a requirement to exchange syringes in order to obtain more syringes.
Footnotes
Footnotes
1 Ky. Dep't of Pub. Health, Kentucky Harm Reduction and Syringe Exchange Program (HRSEP), Guidelines for Local Health Departments Implementing Needle Exchange Programs (May 11, 2015), http://chfs.ky.gov/NR/rdonlyres/E7FBC3DC-E365-4CD8-93BF-FA797052303A/0/….
2 Id. at 8.
3 Id. at 8-9.
4 Louisville Metro Dep't of Pub. Health and Wellness, Syringe Exchange Program 12 (June 1, 2015), http://louisvilleky.gov/sites/default/files/health_and_wellness/clinics….
5 Sen. Stivers further asks whether the operation of HRSEPs such as the one created by the Louisville Metro Department of Health violates KRS 218A.510, which specifies the factors to be considered in determining whether an object is drug paraphernalia. We advise that it does not.