Could a Kentucky health department run a needle exchange program under the law considered in 1992?

Plain-English summary

The Lexington-Fayette County health commissioner asked whether a needle exchange program would violate Kentucky law. The AG answered yes. It reasoned that such a program would supply needles for illegal drug use and therefore fall within the drug paraphernalia prohibition in KRS 218A.500(3). The opinion found no statutory exemption for an urban-county health department.

The opinion also pointed to a separate rule requiring medical providers disposing of hypodermic needles and syringes to make them incapable of reuse. It said a program could expose the department, governing board, and individuals involved to criminal liability. It mentioned possible federal penalties but expressly declined to analyze them.

Currency note

This opinion was issued in 1992. 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.

Historical summary

Health departments and governing boards

The AG read the paraphernalia ban as applying to any “person” and cited a definition that could reach public bodies. On that reading, the proposed program could have exposed both the health department and its board to criminal liability. The opinion did not identify an exemption for urban-county health departments.

Physicians and other medical personnel

The opinion also relied on the then-existing rule that physicians and other listed medical providers disposing of needles or syringes had to crush the barrel or otherwise render the instrument unusable. It said that rule covered physicians and licensed medical personnel working for or at the direction of the health department.

Common questions

Did the AG approve a county health department needle exchange in 1992?

No. The AG said the proposed exchange would violate Kentucky's drug paraphernalia prohibition and found no exception for the health department.

Could the health department's board have been affected?

Yes. The opinion said the department, its governing board, and individuals involved potentially could face criminal liability under the statute as the AG read it then.

Did the opinion decide whether federal law prohibited the program?

No. It acknowledged possible federal penalties and said a discussion of them was beyond the opinion's scope.

Background and statutory framework

The AG treated hypodermic syringes and needles intended for injecting controlled substances as “drug paraphernalia” under KRS 218A.500(1)(k). It applied the delivery prohibition in KRS 218A.500(3), the penalty language in KRS 218A.500(5), and the definition of “person” in KRS 446.010(26). Separately, it read KRS 217.177(6) with the penalty provision in KRS 217.990(11) and the definition of “person” in KRS 217.015(3). This was the opinion's analysis of the law in 1992.

Citations and references

• KRS 218A.500(1)(k), (3), and (5): paraphernalia definition, delivery prohibition, and penalties discussed by the AG.
• KRS 446.010(26): definition of “person” considered for public bodies.
• KRS 217.177(6) and KRS 217.990(11): syringe disposal duty and its stated penalties.
• KRS 217.015(3): definition of “person” for the disposal provision.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG92-093.htm

Original opinion text

OAG 92-93

June 4, 1992

Mr. John Poundstone, M.D., M.P.H.

Commissioner

Lexington-Fayette County Health Department

650 Newtown Pike

Lexington, Kentucky 40508

Dear Mr. Poundstone:

You recently contacted this office requesting an opinion on whether a needle exchange program would violate Kentucky law. It would.

The very purpose of a needle exchange program would presuppose illegal use of those needles by recipients. Hence, a needle exchange program would violate KRS 218A.500(3).

Urban-county health departments are not exempted by the Kentucky statutes from the prohibition of KRS 218A.500(3) against any person delivering, possessing with intent to deliver, or manufacturing with intent to deliver, ". . . drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to . . . inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter." The term "drug paraphernalia" is defined in KRS Chapter 218A to include "[h]ypodermic 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). Under KRS 218A.500(5), added by House Bill 132 in the 1992 Session of the Kentucky General Assembly, "[a]ny person who violates any provision of . . . [KRS 218A.500] . . . shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses."

The proscription contained in KRS 218A.500(3) applies to any "person." Under KRS 446.010(26), " '[p]erson' may extend and be applied to bodies-politic and corporate, societies, communities, the public generally, individuals, partnerships, and joint stock companies." Thus, a needle exchange program potentially could subject the health department and its governing board, as well as the individuals involved, to criminal liability.

Moreover, KRS 217.177(6) directs that "[a]ny physician, other licensed medical person, hospital, or clinic disposing of hypodermic syringes or needles shall crush the barrel of same or otherwise render the instrument incapable of further use." KRS 217.990(11) sets forth the potential rang of penalties for a violation of KRS 217.177(6). KRS 217.990(11) states:

Any person who violates any of the provisions of KRS 217.177 shall be fined not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500.00) or be imprisoned in the county jail for not less than five (5) nor more than thirty (30) days, or both.

KRS 217.015(3) defines "person" to include ". . . any public or private entity." The proscription contained in KRS 217.177(60) would therefore apply to an urban-county health department and any physicians or licensed medical persons employed by or working at its direction.

A needle exchange program might also subject an urban-county health department, its governing board and its employees to penalties under federal law. However, a discussion of those potential penalties is beyond the scope of this opinion.

We hope this opinion has been of some assistance to you.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

By: Kent T. Young

Assistant Attorney General

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