Virginia’s new needle exchange law may limit access in hard-hit areas

A law that legalizes syringe exchanges excludes the state’s most populous county from eligibility. Advocates say that’s a problem—and it could criminalize people trying to get clean needles.

When she began injecting heroin, Taylor could usually find a pharmacist who would sell her needles. “There was a mom and pop store, a pharmacy in Gainesville, that would do it, no problem," she said, "no questions asked.”

This store near her home in Northern Virginia isn’t an option anymore. Other addicts she knew started to go there to purchase needles, and the store’s employees stopped selling to her. “They immediately started saying they were sold out.”

Taylor, who is 23, says she’s been using heroin for four years, and injecting heroin for about the last two. Taylor has been around substance abuse since she was a toddler: her grandmother uses meth, and her mother died of a heroin overdose earlier this year. We are not using Taylor’s last name because of her fear of legal consequences.

Taylor has a low, clear voice that sometimes dips into a gravelly undertone as she trails off. Since her regular pharmacy stopped letting her purchase needles without a script, she’s tried others. She walks me through her routine with a bored weariness, as if she were telling me how she had to go to three different grocery stores to find milk.

One week over the summer, Taylor was turned away from five different pharmacies. “I know there’s a stigma, but I mean, Jesus Christ. I’ve actually wanted to get into an argument and be like, look: I’m going to do it regardless. You’re not stopping me. But a lot of times, there’s no point.”

The week she ran out of pharmacy options, Taylor went to a tractor supply store. She bought a needle designed for injecting farm animals, almost twice as wide in diameter as the needles she normally uses.

“A lot of them don’t care, because they’re so desperate.”

It wasn’t as though Taylor planned on becoming addicted to heroin. She started community college when she graduated high school in 2013, but she dropped out in her second semester, after she started skipping classes to get high. She has worked since then, but now, she’s unemployed. “Once I get more on my feet, I’d love to go back,” she says. She wants to be a history professor.

Taylor says she’s never gotten to the point where she’s had to use someone else’s used needles. Sharing injection equipment can transmit HIV or Hepatitis C, a blood borne virus that infects the liver and can be fatal, and Taylor understands these risks. But for some, used needles can seem like the only option.

“There are people who reach out to me and say ‘Hey, do you have an extra needle?’ And I’ll say, ‘I do, but it’s used. Everything I have is used.’ And they’ll say, ‘That’s fine, that’s fine, I’ll just bleach it.’ Or, ‘It doesn’t matter.’”

She gives away her used needles with a warning—she doesn’t know if she has Hepatitis C or not. Often, her friends take them anyway.

“A lot of them don’t care, because they’re so desperate.”

As the opioid epidemic has swelled over the past few years, many states and counties are seeing increases in new HIV and Hepatitis C rates due to injection drug use. Some of the hardest-hit states—like North Carolina, Indiana, West Virginia, New Hampshire, and Kentucky—have formally legalized syringe exchange programs, where people can turn in used needles and get clean ones for free. The goal of these harm reduction programs is to dissuade people from sharing needles.

In February, Virginia joined this group, passing a law authorizing needle exchanges through July 2020.

About half of all states have explicitly legalized needle exchanges. But in some states, Virginia included, drug paraphernalia laws still prohibit using or distributing needles for illegal drug injection. Needle exchanges can’t operate in these states without an explicit legal sanction.

Allowing needle exchanges is one of a host of public health initiatives the state has undertaken to combat the opioid crisis, after the state health commissioner, Marissa Levine, declared a public health emergency in 2016. Virginia’s law means local health departments and community based health organizations can now apply to the state to run exchanges within their city or county (though it does not authorize new state funding for the exchanges).

But unlike many other states, Virginia only allows some counties to apply to operate syringe exchanges. Many of the eligible areas are clustered in the poor, sparsely-populated rural counties in the southwest of the state, near Virginia’s borders with West Virginia and Kentucky. Others include some of the state’s major cities, like Norfolk, Richmond, and Chesapeake. The populous counties of Northern Virginia, many of them suburbs of Washington, D.C., are among those not eligible to apply, which means a lot of drug users will be passed over by the law.

Throughout the state, ineligible and eligible counties form a patchwork. Dozens of counties permitted to run needle exchanges border counties where doing so is illegal.

People from counties where needle exchanges are legal could face consequences for bringing paraphernalia into counties where they aren’t. Ineligible counties include Prince William County, where Taylor lives, and Fairfax County, the most populous part of the state. Fairfax County emergency departments saw 910 opioid overdoses last year—the highest number anywhere in Virginia. While these suburbs are mostly white and wealthy, they also include large numbers of residents below the poverty line who won’t have access to a program in their community.

Some community health leaders are concerned that the way the law is written may limit access to care—or even criminalize those trying to seek it.

No access in some hard-hit areas

Research has shown that needle exchange programs work: They reduce the risk for HIV and HCV infection, and there’s no evidence that they incentivize drug use or create new users. And because needle exchanges also provide referrals to treatment centers and other social services, they increase the likelihood that participants will stop using drugs. Exchange programs are endorsed by the Centers for Disease Control and the World Health Organization as an effective form of harm reduction.

And yet, distributing syringes to drug users remains a politically fraught proposition. When Scott County, Indiana—a rural area that usually saw fewer than five HIV cases a year—recorded almost 200 cases of HIV in 2015 due to injection drug use, local lawmakers and community stakeholders had to wage an uphill battle to convince then-Governor Mike Pence to put aside his moral opposition to a needle exchange program. While Virginia had the support of Democratic Governor Terry McAuliffe, the state faced similar challenges from other lawmakers.

Throughout Virginia, ineligible and eligible counties form a patchwork. Dozens of counties permitted to run needle exchanges border counties where doing so is illegal.

"That resistance is coming from legislators who have concerns that it is enabling to give people free needles,” said Delegate John O’Bannon, a Republican legislator representing Henrico County, in an interview. O’Bannon, who’s also a practicing physician, introduced the syringe exchange bill in Virginia’s 2017 legislative session. O’Bannon told me he thinks needle exchanges can be effective, but other Republican delegates disagree.

“If anything, we will be providing the needles that people will use to kill themselves,” said Delegate Robert Bell, a Republican representing Albemarle County, in a committee hearing, as reported by the Richmond Times-Dispatch. Bell and other delegates who opposed the bill did not respond to requests for interviews.

The bill was drafted by the Virginia Department of Health (VDH) and introduced at the request of Commissioner Levine, said O’Bannon. It allows the state to authorize needle exchanges only in cities and counties that are at risk for, or experiencing, increases in transmission of HIV, HCV, or other blood borne infectious diseases.

Legislators with reservations about needle exchanges wouldn’t have signed on to a statewide program, so restricting eligibility by county was the key compromise that allowed the bill to pass, O’Bannon said. “This was the step that we thought we could make in Virginia.” At a committee hearing on the bill, Del. T. Scott Garrett specifically raised the concern that the program would operate statewide. Garrett’s office declined to comment for this story.

To determine which localities are “at risk,” the health department used criteria based off of a list of indicators that the CDC developed, including rates of drug overdoses reported by emergency medical departments, fatal overdose rates, HIV and Hepatitis C infection, availability of and admissions to treatment, and the rates of drug-related arrests.

The CDC framework prioritizes rates of these indicators, said Daniel Raymond, the policy director at the Harm Reduction Coalition, an advocacy organization that seeks to address the effects of drug use. Because the CDC framework was developed around the HIV outbreak in Scott County, a small rural county, most counties found to be at risk are also sparsely populated places where the rates of infection and overdose have jumped significantly in a relatively short period of time.

“For the most part, those CDC counties that they’ve documented are not the big urban centers where big absolute numbers might be higher, because they’re looking at rates,” he said. “Not number of overdoses, or number of cases of Hepatitis C.”

Northern Virginia is a densely populated area, and Fairfax is the biggest county in the state, and one of the wealthiest counties. That means that in spite of its high number of drug-related deaths, the county’s rates for overdoses, fatal overdoses, and new Hepatitis C and HIV infections are all lower than state average. The eligibility criteria also include poverty levels and unemployment rate.

“I think maybe the problem is buried a little bit more,” says Taylor. “Here, more people have access to treatment, because their parents have them on health insurance, or they have money.”

But for Taylor and her friends, the problem isn’t buried. Taylor is white and grew up in the suburbs, but now she’s unemployed, and she doesn’t have health insurance. Two of her former high school classmates died of overdoses this summer. Three of her old friends are in prison for heroin possession or distribution. She’d like to see a needle exchange here in Fairfax—it would be better than nothing, she says.

A 40-minute drive from Washington, D.C., Fairfax County is home to wealthy corporate lobbyists and consultants, drawn there by the sprawling suburban mansions and a top-ranked public school system. The percentage of people living in poverty is low—5.9 percent, compared to about 11 percent statewide—but the number is huge: over 65,000 people, which is more than the entire population of some eligible counties. The county also has well over a million residents, many of whom may not have the resources for treatment.

The Fairfax Community Services Board, the county public health office that provides substance abuse services, runs four residential treatment centers for patients with opioid or heroin addiction. The centers prioritize patients who don’t have the financial resources to seek treatment elsewhere. All four currently have waiting lists, says Lyn Tomlinson, the assistant deputy director for acute and therapeutic treatment centers.

Tomlinson understands that Fairfax has a lower number of residents, proportionately, who are struggling with opioids than other counties in the state. But she still worries about the sheer magnitude of those affected and the growing numbers of fatal overdoses. Fairfax saw 97 overdose deaths in 2016, from prescription opioids and heroin combined.

“One hundred is the most in 2016 across the state, even though we’re a larger jurisdiction,” she said. “I certainly would like more focus paid to Northern Virginia for that.”

Ginny Atwood Lovitt agrees that the area could benefit from more targeted programs. She’s the executive director of the Fairfax-based Chris Atwood Foundation, named for her brother who died of an overdose in 2013. In addition to leading the organization’s advocacy efforts, she runs trainings in Northern Virginia where she teaches community members how to administer naloxone, a drug than can reverse an opioid overdose.

If Northern Virginia were eligible, Atwood Lovitt said, her foundation would have been interested in starting a needle exchange. Even if Northern Virginia counties don’t think they have an injection problem now, they will soon, she says. “People always start out looking to smoke it or snort it, but that’s what they end up doing if they use it long enough,” she said.

A police car in Alexandria, Virginia. Photo by author.

Legalized and illegal at the same time

The restrictions in Virginia’s law won’t just affect public health: They have legal implications as well.

Even though Virginia legalized needle exchanges, it’s still technically illegal for people who inject drugs to possess needles. Under a law originally passed in 1971, it’s a misdemeanor offense for non-medical personnel to have syringes, needles, or other injection equipment that could reasonably be expected to be used to administer illegal drugs. Anyone convicted under this law can face up to a year in jail, a $2,500 fine, or both, much steeper punishments than neighboring West Virginia, Maryland, and North Carolina.

Syringe exchange program staff are exempted from these laws, but patients are not. Anyone using the program will receive a card signifying their participation, but the card still doesn’t convey any legal immunity.

To open a needle exchange, agencies need a letter of support from their local police department, but not the neighboring counties. That means you could pick up a needle at a legal exchange in one county, and be arrested for possessing that needle the next county over.

Traveling to return used needles could also be risky. When state police arrest people for paraphernalia, they sometimes test needles for drug residue, said a spokesperson for the Virginia State Police. If residue is found, the owner of the needle could be charged with possession of heroin.

All this means that anyone using the program in an ineligible county faces the possibility of arrest, but Black residents may be especially vulnerable. Data acquired through a public records request show that in Fairfax, Black residents are disproportionately likely to be arrested for a high-level drug offense.

Just under 10 percent of all Fairfax residents are Black, but Black residents make up 30 percent of all arrests for possession of schedule I and II drugs—categories that include heroin, fentanyl, carfentanil, and some opioids. They also made up a little over 20 percent of paraphernalia-related arrests in 2016.

You could pick up a needle at a legal exchange in one county, and be arrested for possessing that needle the next county over.

But there’s no suggestion that Black residents are using opioids and heroin at a higher rate than white residents. Looking at opioid and heroin use statewide, four out of five overdose deaths are white residents, even though only about 60 percent of Virginians statewide are white. The issue is a discrepancy in enforcement.

These racial disparities are not confined to Virginia. A nationwide focus on addiction prevention and treatment for opioid use is in stark contrast to the punitive policies and mass incarceration Black crack users faced in the 1980s. Across the country, more than 80 percent of all people convicted for drug trafficking are Black or Latino, even though all racial groups are about equally likely to buy and sell drugs. Even as communities roll out programs that facilitate rehab and deter arrest, Black and brown users may be left behind, or further victimized.

This lack of legal immunity for those who use needle exchanges in Virginia could further worsen these disparities. It’s also another provision that makes Virginia’s law stand out, said Raymond of the Harm Reduction Coalition.

Creating a needle exchange program without somehow making it legal for patients to possess needles has the potential to “undermine the intent of the law,” he said. Without a legal foundation of protection for exchange patients, ensuring the cooperation of law enforcement will be paramount. “It’s going to be incumbent on law enforcement and police departments to really vocally send the message and spread the word that they will not be arresting people for participating in the program,” he said.

“Some police officers are fair, and some are not”

Gerald Sabb, a nurse at the Washington, D.C. needle exchange operated by the community organization Bread for the City, worried whether residents in ineligible counties like Fairfax would be able to use needle exchanges elsewhere in the state.

“If you leave it at the discretion of a police officer—not to villainize police officers in this conversation—but some police officers are fair, and some are not,” Sabb said.

Sabb’s Virginia clients, most of whom are from Fairfax, have told him about their interactions with police around the state. One said he was charged with drug possession after law enforcement tested a used syringe for heroin residue. Another said he was strip-searched after the police found needles in his car.

This man had started tossing his used needles out on the street after this incident, said Sabb, because he was worried about the police stopping him on his way to return the needles to Bread for the City. The Fairfax County Police Department did not respond to multiple requests for comment.

Now, Sabb makes a point to warn his clients about the level of police enforcement. “I say, ‘Hey, be careful. Virginia don’t play.’”

State law enforcement is also not involved in any of these agreements, said a spokesperson for the Virginia State Police, who said that those partnerships are only at the local level. When asked whether the state police will arrest card-carrying needle exchange participants found with paraphernalia, she said that the department would make those decisions on a case-by-case basis. In other words, state police could arrest needle exchange participants for possessing paraphernalia.

Further complicating things, some of Virginia’s independent cities are eligible to operate needle exchanges, but are located within counties that are ineligible. These cities and counties have separate law enforcement agencies.

It all rings a little hollow for Taylor. She thinks the shift in focus from enforcement to treatment has yet to come in Virginia.

Virginia’s Attorney General, Mark Herring, has said “we can’t arrest our way out of this problem.” The sentiment was repeated by those campaigning for seats in the House of Delegates in the recent election.

It all rings a little hollow for Taylor. She thinks the shift in focus from enforcement to treatment has yet to come in Virginia.

Taylor said she was arrested in Virginia on charges of drug and drug paraphernalia possession in 2015. “They had my boyfriend slammed up against the car, they were yelling at us, they put me in cuffs immediately. Just like, ‘Where’s it at? Who’d you get it from?’”

This interaction was in stark contrast with police in Washington, D.C. In August, D.C. police found Taylor after she had overdosed on heroin, and they administered naloxone, she said.

“They weren’t like, super nice, but they weren’t trying to arrest me—they just wanted to help,” she said. “They got my phone number and asked me if I wanted help getting into treatment, cause I don’t have health insurance. That type of stuff, just being like, ‘Do you want to quit, do you need help?’ I mean, that’s better for any addict than jail.”

And, she said, there’s always the possibility that addicts will fatally relapse when they get out. This is what happened to Taylor’s mother, who overdosed after a 5-month jail stay. “Jail doesn’t stop addicts because they don’t want to quit; they’re forced to quit,” she said. When addicts leave jail they have a lower tolerance, and they’re at a higher risk of a fatal overdose.

There’s a pervasive stigma in Virginia around drug use, she said, which only makes it harder to end the cycle of drug abuse.

“People are always going to want to do drugs,” she said. Taylor understands that legalizing anything related to drug use is controversial, but she thinks pushing addiction further underground will only lead to more deaths. “I really don’t have a great solution.”

 

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    Sarah Schwartz is a freelance reporter and a contributing writer for Education Week. She’s a native of the Washington, D.C. area.