On November 14, 2023, the Wisconsin State Assembly (Assembly) passed Assembly Bill 223 (Bill). The Bill offers designated school personnel and certain health care providers, including school nurses, immunity for administering an opioid antagonist to a student or other person in an elementary or secondary school regardless of parental consent. Opioid antagonists are medications that block the effects of opioids and can reverse an opioid overdose.
In its original form, the Bill, which was introduced by the Assembly on April 20, 2023, would have required every public and private school in Wisconsin to have a usable supply of an opioid antagonist on site that would be easily accessible at all times. Although the Bill had bipartisan support and paralleled a similar bill offered in the Wisconsin State Senate (Senate) on April 3, 2023 (i.e., Senate Bill 206), various stakeholders expressed concern with the initial language of the Bill.
Although many of the stakeholders, including the Wisconsin Association of School Boards (WASB), the Wisconsin Department of Public Instruction (DPI), and the Wisconsin Association of School Nurses (WASN), support legislation designed to address the opioid crisis, those stakeholders also recognized that the Bill, in its original form, lacked clarity as to liability protections. More specifically, the Bill did not remove barriers for school districts in obtaining, stocking, and using opioid antagonists.
As such, these stakeholders urged that if school districts would be required to stock opioid antagonists for use, the Bill should be modified to resemble Wis. Stat. § 118.2925, which pertains to the use of epinephrine in schools. That statute allows a medical advisor to write a prescription for epinephrine in the name of a school. Under current law pertaining to opioid antagonists, medical advisors can only prescribe such medications in the name of an individual, and pharmacies can only fill such prescriptions written for individuals. Moreover, neither the current law nor the original Bill language offer explicit protections to the following individuals:
- Medical advisors writing prescriptions in the name of a school district,
- Pharmacies filling such prescriptions, or
- School nurses administering opioid antagonists to students or others in schools.
Thus, while the Bill would require school districts to have opioid antagonists stocked, neither the Bill language nor current law provide certainty with respect to what protections school districts would have under the Bill in obtaining, stocking, or using opioid antagonists. As such, the stakeholders urged the Assembly to amend the language of the Bill.
On September 20, 2023, Representative Shannon Zimmerman of River Falls presented a Substitute Amendment for the Assembly’s consideration, which was offered to replace the original Bill text and create Wis. Stat. § 895.478(3m) to read, in relevant part:
An elementary or secondary school and its designated school personnel, and a physician, advanced practice nurse prescriber, or physician assistant who provides or administers an opioid antagonist, are not liable for any injury that results from the opioid antagonist, regardless of whether authorization was given by the pupil’s parent or guardian or by the pupil’s physician, advanced practice nurse prescriber, or physician assistant, unless the injury is the result of an act or omission that constitutes gross negligence or willful or wanton misconduct.
While the Substitute Amendment does not explicitly address each of the concerns raised by the stakeholders, many of the stakeholders’ concerns were appeased because the revised language no longer requires school districts to stock opioid antagonists. Moreover, if school districts elected to stock opioid antagonists for use by school nurses or other authorized personnel, those individuals could rest assured that immunity would protect them if an injury were to result from their administration of an opioid antagonist, provided that the injury was not the result of gross negligence or willful or wanton misconduct.
Nonetheless, while the Substitute Amendment alleviated the concerns of some stakeholders, the WASN continues to remain neutral on the Bill. The WASN would like the Bill’s language to explicitly (1) permit medical advisors to write prescriptions for opioid antagonists in the name of school districts, (2) allow pharmacies to fill such prescriptions, and (3) authorize school nurses to administer such medications to students and others. With respect to the last point, unlike under Wis. Stat. § 118.29, which explicitly permits school bus drivers, school employees, and school volunteers to administer opioid antagonists under certain conditions, nothing in the Substitute Amendment explicitly permits school nurses to administer such medications to students or others.
Whether any of the WASN’s concerns will be addressed in the future will now be up to the Wisconsin State Senate (Senate) who received the Bill from the Assembly on November 15, 2023. Although there is no certainty as to whether the Senate will make any changes to the Bill, the Bill’s bipartisan support indicates that some form of the Bill will likely be passed into law. As such, a school district may want to determine now, or in the near future, whether maintaining a supply of opioid antagonists will be in their school district’s best interests. School districts may find it beneficial to consider the following information from the Wisconsin Department of Health Services (DHS) and the DPI when weighing those interests with respect to opioid antagonists:
- More Wisconsin residents die from opioid overdoses than from car accidents each year.
- In 2020, 86% of Wisconsin’s opioid deaths were related to a synthetic or manufactured opioid like fentanyl, which can be up to fifty (50) times stronger than heroin.
- County-specific data related to opioid deaths and hospitalizations can be found on the DHS’s “Opioids Data” webpage.
- Fentanyl is often used to manufacture illegal drugs and counterfeit pills because fentanyl is strong and cheap to produce.
- One of the most common types of opioid antagonists is naloxone, which can be administered by an injection into the veins, muscle, or under the skin, or via a nasal spray like Narcan.
- For purposes of Wis. Stat. § 118.29, DPI has only approved the use of intranasal and intramuscular autoinjector forms of naloxone.
- For individuals experiencing an opioid overdose, naloxone can restore normal breathing and can take effect within a few minutes.
- Opioid antagonists may be effective for less time than the duration that strong opioids like fentanyl remain in the system (e.g., naloxone only works to reverse an opioid overdose for thirty (30) to ninety (90) minutes).
In addition to considering the aforementioned information, it would be beneficial for a school district to consult with legal counsel when making policy decisions related to maintaining and administering opioid antagonists in schools.
 Under Wis. Stat. § 118.29, school bus drivers, school employees, and school volunteers may administer opioid antagonists to students and others if (1) they have been authorized by the district to do so, and (2) they have received DPI-approved training on administering opioid antagonists. A list of opioid training resources can be found on the DPI’s website. See https://dpi.wi.gov/sspw/pupil-services/school-nurse/training/medication/opioid-antagonist.
For questions regarding this article, please contact the author,
or your Renning, Lewis & Lacy attorney.
Laura E. Pedersen
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