NIMBYism continues to factor into supervised injection site policies

supervised injection site

Insite, in Vancouver, Canada, is a supervised injection facility. (Screengrab via HCLU/Vimeo)

By Daniel Goldberg

As a major tool in harm reduction policy connected to opioid and substance misuse, more than 30 states have implemented syringe exchange programs, or SEPs.

Surmounting or, in many cases, bypassing the considerable legal and political obstacles has proved a challenge for states, whether they succeeded in enacting SEPs or not. While, given the opioid crisis, SEPs are more important than ever, they do have limitations.

“[Such] interventions do not address the lack of a safe and hygienic setting for injection, nor are they sufficient to overcome the behavioral influence of relationships and other factors present in informal injecting milieus,” Beletsky and colleagues wrote in a 2008 paper.

Accordingly, many state and local governments that have implemented SEPs are contemplating the next rung on the harm reduction ladder: supervised injection sites (SISs).

“A [SIS] is a place supervised by licensed health personnel where IDUs inject drugs they obtain elsewhere,” write Beletskt el al. “Facility staff do not directly assist in injection, but rather provide sterile injection supplies, answer questions on vein care and safer injection methods, administer first aid, and monitor for overdose. [SIS] staff also offer general medical advice and referrals to drug treatment and other social programs (citations omitted).”

The evidence supporting the safety and efficacy of SISs is generally solid, but this only goes so far since public health policy is typically not enacted on the basis of such evidence (and there is reason to suspect this is especially true in the case of U.S. drug policy, both past and present).

Many of the same legal and political problems that bedevil(ed) SEPs also apply to SISs. First, there are significant preemption concerns arising primarily from the federal Controlled Substances Act. Second, the enduring and intense stigma of drug use renders many federal and state policymakers unable or unwilling to support proposals for SEPs.

Moreover, SISs present additional concerns that may not apply with as much force to SEPs. SEPs are state-sanctioned facilities in which persons who use drugs actually inject drugs. While there are certainly many communities in the US which might support SEPs in principle, the powerful NIMBY effect considerably erodes enthusiasm for specific proposals and implementation plans.

In addition, because SISs require licensed health professionals to monitor and supervise the facility, there are enormous issues pertaining to scope-of-practice, as well as potential licensure implications and even possible regulatory requirements. For example, if a health provider is supervising a SIS and providing health care services, the immense body of relevant regulations and requirements pertaining to such provision might be applicable, in whole or in part.

The history of public health in the U.S. is fundamentally local. This is true as far back as public health action in the Early Republic; most historians of U.S. public health concur that the post-Civil-War activities of the New York Board of Health mark a critical moment in the consolidation and centralization of public health action in U.S. history. Unsurprisingly, then, the push to implement SISs is most palpable on the local level. Multiple municipalities have initiated a movement to a SIS, including but not limited to New York City, Philadelphia, Ithaca, Seattle, San Francisco, and my home city of Denver.

In their 2008 paper, Beletsky et al. acknowledge the significance of local action as to SISs, but argue that such action is on substantially weaker legal and political footing than state sanction.

“[A] locally authorized [SIS] would be on the weakest footing in relation to a federal challenge and might also be attacked as conflicting with state law. For example, the attempt in Atlantic City, NJ, to implement an syringe exchange program was successfully challenged in court by the local prosecutor, who argued that it was prohibited by state drug law,” they write. “A locally authorized [SIS] would have relatively less protection against police interference. Although legal arguments are important, the durability of a local authorization would also depend on an explicit or implicit agreement among stakeholders to avoid arrests and other legal challenges.”

In 2017, California state senators introduced a bill to authorize the creation of SISs, but the bill failed to advance in the state Senate due to the votes of several Democratic senators who joined unanimous Republican opposition. Thus, while it might be legally preferable to await state authorization, the urgency of the opioid crisis suggests, that, yet again, local public health action may need to light the way.

The fact that municipalities are in the vanguard of efforts to implement SISs raises an unusual and interesting issue of preemption, not simply at the federal level, but rather at the state level, as Beletsky et al. note. Indeed, states are increasingly flexing their plenary muscle to preempt local efforts to implement all sorts of actions that might have significant health impact, such as state prohibitions on local efforts to prohibit LGBTQ discrimination, or pass minimum wage ordinances, and so on.

I am part of a team at the Farley Health Policy Center (@FarleyHealthPol) working on a project to address issues of state preemption of efforts to implement SISs. Using policy surveillance methodology, we plan to examine state laws and policies and stratify them according to internal criteria that correspond to preemption risk.

The hope is that this knowledge will enable stakeholders involved in local efforts to organize, advocate, and target effectively the laws and policies that most require change or adjustment to facilitate the implementation of this harm reduction policy intervention at this most urgent of times.