Can a Texas doctor prescribe naloxone or another opioid-overdose drug to a police department?

Plain-English summary

The president of the Texas Medical Board asked the AG whether Health and Safety Code section 483.102 lets an eligible prescriber prescribe an opioid antagonist to law enforcement agencies, either directly or through a standing order. An opioid antagonist, such as naloxone, binds to opioid receptors and blocks the effects of opioids, and given in time it can quickly restore breathing in someone whose respiration has slowed or stopped from an overdose. The Legislature had been building out the law in this area: a 2015 bill allowed prescribing and dispensing opioid antagonists both to people at risk of overdose and to people positioned to help them, and a 2017 law directed the Medical Board to adopt prescribing guidelines, with the Legislature finding that opioid and controlled-substance deaths are a public health crisis.

The AG said yes, a prescriber may prescribe an opioid antagonist to law enforcement agencies. Section 483.102 lets a prescriber, directly or by standing order, prescribe an opioid antagonist to a person at risk of an opioid-related overdose or to a family member, friend, or other person in a position to assist such a person. The question turned on whether a law enforcement agency counts as a "person in a position to assist." Although the statute does not list "agency" by name, the Code Construction Act defines "person" to include a government or governmental agency unless a statute says otherwise, and the Code Construction Act applies to the Health and Safety Code. On top of that, section 483.104 expressly says a "person or organization" acting under a standing order may distribute an opioid antagonist, which shows the Legislature meant standing orders to be able to reach organizations, not just individuals.

That left whether law enforcement agencies are actually in a position to assist people experiencing an opioid overdose. The AG pointed to the documented experience of police departments outside Texas: one municipal department administered naloxone 419 times and rescued 402 people from overdose between 2010 and 2015, and by December 2016 over 1,200 law enforcement departments nationwide carried naloxone. As first responders, officers regularly are in a position to assist someone overdosing. So section 483.102 authorizes a prescriber, directly or by standing order, to prescribe an opioid antagonist to law enforcement agencies in a position to assist. The opinion also noted the liability shields the Legislature built in: prescribers and pharmacists acting in good faith with reasonable care are protected, and so is anyone who in good faith administers (or chooses not to administer) an opioid antagonist to someone they believe is overdosing.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Texas Medical Board, which asked (as the opinion described it): The opinion answered that section 483.102 authorizes a prescriber to prescribe an opioid antagonist to law enforcement agencies in a position to assist persons experiencing an opioid-related overdose, and noted the Board's 2017 mandate to adopt prescribing guidelines.

Prescribers (as the opinion described them): The opinion treated a prescriber as authorized to prescribe an opioid antagonist to a law enforcement agency directly or by standing order, and described the good-faith liability shield protecting the decision to prescribe or not.

Law enforcement agencies and officers (as the opinion described them): The opinion described officers as first responders regularly in a position to assist overdose victims, and read agencies as "persons" eligible to receive a prescription of an opioid antagonist.

Pharmacists (as the opinion described them): The opinion noted that section 483.103 lets a pharmacist dispense an opioid antagonist to the same recipients a prescriber may prescribe to, with a parallel good-faith liability shield.

Common questions

Can a doctor prescribe naloxone to a police department?
Under this opinion, yes. The AG concluded a prescriber may prescribe an opioid antagonist to a law enforcement agency directly or by standing order because the agency is a "person in a position to assist" an overdose victim.

Why does an "agency" count as a "person" under the statute?
The opinion relied on the Code Construction Act, which defines "person" to include a government or governmental agency unless a statute says otherwise, and which applies to the Health and Safety Code.

Does a standing order have to name an individual?
No. The opinion pointed to section 483.104, which lets a "person or organization" acting under a standing order distribute an opioid antagonist, as evidence the Legislature intended standing orders to reach organizations.

Are officers protected if they administer the drug?
The opinion noted a liability shield: a person who in good faith and with reasonable care administers (or does not administer) an opioid antagonist to someone they believe is overdosing is protected from criminal prosecution, licensing sanction, and civil liability.

What is an opioid antagonist?
The opinion described it as any drug that binds to opioid receptors and blocks or inhibits the effects of opioids, such as naloxone, which can restore breathing in an overdose if administered in time.

Background and statutory framework

An opioid antagonist is any drug that binds to opioid receptors and blocks or inhibits the effects of opioids, such as naloxone (Tex. Health & Safety Code § 483.101(2)). The Legislature passed Senate Bill 1462 in 2015 to permit prescribing and dispensing opioid antagonists to people at risk of overdose and to those positioned to assist them, and in 2017 directed the Texas Medical Board to adopt prescribing guidelines (Tex. Occ. Code §§ 170.002(a), 151.002(a)(1)), finding that opioid and controlled-substance deaths are a public health crisis.

Section 483.102(a) authorizes a prescriber to directly or by standing order prescribe an opioid antagonist to a person at risk of an opioid-related drug overdose or to a family member, friend, or other person in a position to assist such a person (Tex. Health & Safety Code § 483.102(a)), with "prescriber," "opioid-related drug overdose," and "opioid antagonist" defined in section 483.101 (Tex. Health & Safety Code §§ 483.101(2), 483.101(3), 483.101(4)). Section 483.103 lets a pharmacist dispense to the same individuals (Tex. Health & Safety Code § 483.103(a)). Although section 483.102 does not list an agency, the term "person" includes a government or governmental subdivision or agency under the Code Construction Act, which applies to the Health and Safety Code unless otherwise provided (Tex. Gov't Code § 311.005(2); Tex. Health & Safety Code §§ 1.002, 483.001(8)). And § 483.104 confirms that a "person or organization" acting under a standing order may distribute an opioid antagonist (Tex. Health & Safety Code § 483.104), showing the Legislature intended standing orders to authorize organizations as well as individuals.

The AG concluded law enforcement agencies are in a position to assist persons experiencing an opioid-related overdose, citing out-of-state experience (one department administered naloxone 419 times and rescued 402 individuals between 2010 and 2015, and over 1,200 departments nationwide carried naloxone as of December 2016), and held that section 483.102 authorizes prescribing an opioid antagonist to law enforcement agencies in a position to assist. The Legislature shielded prescribers and pharmacists acting in good faith with reasonable care from criminal, civil, and disciplinary liability (Tex. Health & Safety Code §§ 483.102(c), 483.103(c)), and likewise shielded any person who in good faith administers or declines to administer an opioid antagonist to someone believed to be overdosing (Tex. Health & Safety Code § 483.106(a)).

Citations

Statutes:

• Tex. Health & Safety Code §§ 1.002, 483.001(8), 483.101(2), 483.101(3), 483.101(4), 483.102, 483.102(a), 483.102(c), 483.103, 483.103(a), 483.103(c), 483.104, 483.106(a)
• Tex. Occ. Code §§ 170.002(a), 151.002(a)(1)
• Tex. Gov't Code § 311.005(2)
• Senate Bill 1462, 84th Leg., R.S. (2015); Act of May 26, 2017, 85th Leg., R.S., ch. 534

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0168
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0168.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 4, 2017

Sherif Zaafran, M.D. Opinion No. KP-0168
President
Texas Medical Board Re: Whether section 483.102 of the Health and
Post Office Box 2018 Safety Code authorizes an eligible prescriber to
Austin, Texas 78768-2018 directly or by standing order prescribe an opioid
antagonist to law enforcement agencies
(RQ-0181-KP)

Dear Dr. Zaafran:

    You ask whether section 483.102 of the Health and Safety Code authorizes an eligible prescriber to directly or by standing order prescribe an opioid antagonist to law enforcement agencies. [1] Answering your question first requires an understanding of opioids and opioid antagonists. Opioids are natural or synthetic substances that are also referred to as narcotics, and physicians often prescribe opioids for pain relief and other medical uses. Porter, R.S., & Kaplan, J.L., MERCK MANUAL PROFESSIONAL VERSION [database online] ("MERCK MANUAL"). [2] Examples of prescription opioids include codeine, hydrocodone, methadone, morphine, and oxycodone. Id. ("Opioid Analgesics"). Heroin is also an opioid used as a recreational drug. Id. ("Opioid Use Disorder and Rehabilitation"). When used incorrectly, opioids can have serious side effects, and an opioid overdose can cause respiratory depression and death. Id. ("Opioid Misuse, Diversion, and Abuse"). In 2015, an estimated 33,091 deaths occurred in the United States from overdose on prescription and illicit opioids. [3] During the past legislative session, the Legislature found "that deaths resulting from the use of opioids and other controlled substances constitute a public health crisis." [4]

    An "opioid antagonist" is "any drug that binds to opioid receptors and blocks or otherwise inhibits the effects of opioids acting on those receptors." TEX. HEALTH & SAFETY CODE § 483.101(2). An opioid antagonist, such as naloxone, may prevent deaths from opioid overdose if the overdosing person receives proper administration of the opioid antagonist. MERCK MANUAL, supra note 2 ("Opioid Toxicity and Withdrawal"). If administered in time, an opioid antagonist can quickly restore regular respiration to a person whose breathing has slowed or stopped due to an opioid overdose. Id. Opioid antagonists can be delivered either by injection or through a nasal spray. Id. Recognizing the ability of opioid antagonists to save numerous lives, in 2015 the Legislature passed Senate Bill 1462, which permitted prescribing and dispensing an opioid antagonist to both persons at risk of experiencing an overdose and to individuals in a position to assist those experiencing an overdose. [5] In 2017, building on its prior efforts to address this health crisis, the Legislature required the Texas Medical Board to "adopt guidelines for the prescription of opioid antagonists." TEX. OCC. CODE § 170.002(a); see also id. § 151.002(a)(1) (defining "Board" as "the Texas Medical Board" for purposes of this section). Your question relates to these newly-enacted laws and to what extent they allow the prescription of opioid antagonists to law enforcement agencies.

    Section 483.102 of the Health and Safety Code authorizes a "prescriber" to "directly or by standing order, prescribe an opioid antagonist to: (1) a person at risk of experiencing an opioid-related drug overdose; or (2) a family member, friend, or other person in a position to assist a person described by Subdivision (1)." [6] TEX. HEALTH & SAFETY CODE § 483.102(a) (emphasis added). Furthermore, section 483.103 authorizes a pharmacist to dispense an opioid antagonist to the same individuals authorized to obtain a prescription from a prescriber. [7] Id. § 483.103(a). Answering your question therefore requires a determination about whether law enforcement agencies are "persons in a position to assist" a person at risk of experiencing an opioid-related overdose within the meaning of the statute.

    While section 483.102 does not expressly include an agency in the list of those authorized to receive a prescription, unless a statute provides otherwise, the term "person" includes "organization, government or governmental subdivision or agency ... and any other legal entity." TEX. GOV'T CODE § 311.005(2) (Code Construction Act); TEX. HEALTH & SAFETY CODE § 1.002 (explaining that Code Construction Act applies to the Health and Safety Code unless expressly provided otherwise); see also id. § 483.001(8) (defining "person" to include "an individual, corporation, partnership, and association"). Furthermore, with regard to distributing an opioid antagonist, the statute provides that a "person or organization acting under a standing order . . . may distribute an opioid antagonist." TEX. HEALTH & SAFETY CODE § 483.104 (emphasis added). Thus, the Legislature made clear its intent that a standing order under section 483.102 could authorize both individuals and organizations to obtain opioid antagonists by prescription.

    The question then becomes whether law enforcement agencies are "in a position to assist persons" experiencing an opioid-related drug overdose. Experiences of law enforcement agencies outside of Texas leave no question about the ability of law enforcement agencies to assist a person experiencing an opioid overdose. [8] For example, between 2010 and 2015, one municipal police department alone administered the opioid antagonist naloxone 419 times and rescued 402 individuals from opioid overdose. [9] As of December 2016, over 1,200 law enforcement departments nationwide carried naloxone in an effort to prevent opioid-related deaths. [10] As first responders, law enforcement officers have been and will continue to regularly be in a position to assist persons experiencing an opioid-related drug overdose. Thus, section 483.102 of the Health and Safety Code authorizes a prescriber to directly or by standing order prescribe an opioid antagonist to law enforcement agencies in a position to assist persons experiencing an opioid-related drug overdose. [11]

                                SUMMARY

                  Section 483.102 of the Health and Safety Code authorizes a prescriber to directly or by standing order prescribe an opioid antagonist to law enforcement agencies in a position to assist persons experiencing an opioid-related drug overdose.

                                      Very truly yours,

                                      KEN PAXTON
                                      Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] Letter from Dr. Sherif Zaafran, President, Tex. Med. Bd., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 18, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Available at https://www.merckmanuals.com/professional/SearchResults?query=opioids ("Opioid Analgesics").

[3] Centers for Disease Control and Prevention, Drug Overdose Death Data, Opioid Overdose, https://www.cdc.gov/drugoverdose/data/statedeaths.html.

[4] Act of May 26, 2017, 85th Leg., R.S., ch. 534, § 3, 2017 Tex. Sess. Law Serv. 1467, 1468.

[5] Act of May 29, 2015, 84th Leg., R.S., ch. 958, § 1, 2015 Tex. Gen. Laws 3397, 3398; see also Senate Research Center, Bill Analysis, Tex. S.B. 1462, 84th Leg., R.S. (2015) ("The drug naloxone, an opioid antagonist, offers a rapid and easily administered approach to quickly reverse an opioid overdose.").

[6] "Prescriber" is defined as "a person authorized by law to prescribe an opioid antagonist." TEX. HEALTH & SAFETY CODE § 483.101(4). "Opioid-related drug overdose" is defined as "a condition, evidenced by symptoms such as extreme physical illness, decreased level of consciousness, constriction of the pupils, respiratory depression, or coma, that a layperson would reasonably believe to be the result of the consumption or use of an opioid." Id. § 483.101(3).

[7] The Legislature shielded both prescribers and pharmacists from liability for opioid antagonists:
A prescriber who, acting in good faith with reasonable care, prescribes or does not prescribe an opioid antagonist is not subject to any criminal or civil liability or any professional disciplinary action for:
(1) prescribing or failing to prescribe the opioid antagonist; or
(2) if the prescriber chooses to prescribe an opioid antagonist, any outcome resulting from the eventual administration of the opioid antagonist.
Id. § 483.102(c); see also id. § 483.103(c) (providing the same protection for a pharmacist dispensing opioid antagonists).

[8] Bryan B. Kitch & Roberto C. Portela, Effective Use of Naloxone by Law Enforcement in Response to Multiple Opioid Overdoses, PREHOSPITAL EMERGENCY CARE 226, 228 (Mar. 22, 2016) ("[T]he experience of our law enforcement providers in reversing multiple overdoses with naloxone in short succession represents proof of feasibility of training and distribution of this medication to first responders."). http://www.tandfonline.com/doi/pdf/10.3109/10903127.2015.1076097?needAccess=true.

[9] Food & Drug Admin., Law Enforcement & Naloxone Utilization in the United States, https://www.fda.gov/downloads/Drugs/NewsEvents/UCM454810.pdf.

[10] http://www.nchrc.org/law-enforcement/us-law-enforcement-who-carry-naloxone/.

[11] The Legislature shielded from liability those individuals who administer an opioid antagonist in good faith:
A person who, acting in good faith and with reasonable care, administers or does not administer an opioid antagonist to another person whom the person believes is suffering an opioid-related drug overdose is not subject to criminal prosecution, sanction under any professional licensing statute, or civil liability, for an act or omission resulting from the administration of or failure to administer the opioid antagonist.
TEX. HEALTH & SAFETY CODE § 483.106(a).