Bill to regulate ketamine used during police calls passes House committee

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DENVER | A panel of state legislators Wednesday granted initial approval to an amended measure that could bolster regulations related to ketamine and other sedatives when used outside of Colorado hospitals.

The House Judiciary Committee voted 7-4 along party lines to move the measure forward following hours of testimony and debate from myriad medical and law enforcement officials, as well as people who had been injected with ketamine following encounters with local police. 

Sponsored by Democrats Leslie Herod and Yadira Caraveo, the proposal is the upshot of how Aurora police and paramedics detained and treated Elijah McClain in August 2019. The 23-year-old massage therapist died days after paramedics with Aurora Fire Rescue miscalculated his weight and injected him with 500 milligrams of ketamine.  

“This issue has convulsed the city,” Democratic Aurora Representative and chairman of the judiciary committee Mike Weissman said. “I’m not sure it’s done convulsing the city.”

The bill outlines a number of protocols related to who can inject people with sedatives like ketamine and haloperidol and consequences for police officials who improperly advocate for using such drugs. Democratic Aurora Reps. Dominique Jackson, Iman Jodeh and Kyle Mullica are co-sponsors.

The current measure stipulates that such substances may only be administered in a “justifiable medical emergency” when all other methods of subduing a person in a non-hospital setting have failed, according to the bill text. The proposal requires that sedatives like ketamine can only be used if the patient they are intended for can be accurately weighed in real-time and their vital signs can be monitored immediately after dosing. 

The measure would not affect the use of ketamine in hospital or therapeutic settings. 

The stipulation requiring officials to weigh patients prior to injection would effectively nix the drug’s use in the state, Aurora City Councilperson Curtis Gardner said at a recent city meeting. 

“Essentially, I think that’s effectively banning chemical sedatives,” he said. “And while I do have concerns with the civil liberties aspect of sedatives, I do think I heard pretty clearly form the Jonathan Smith report there are cases where, in fact, a chemical sedative is the safest way to transport what at that point is a patient from an interaction in the field, if you will, to a hospital.”

Indeed, Smith and other consultants contracted to compile a lengthy report analyzing how Aurora officials handled their investigation and interaction with McClain agreed that ketamine is an effective drug, per the current science.

“Despite increased scrutiny of pre-hospital ketamine use, there is consensus among physician medical directors in EMS that, in the absence of new drug development, ketamine is currently a clinically appropriate medication for sedation of the agitated patient in the field,” consultants wrote in their report presented to city officials in February. “Studies also show that ketamine has a high margin of safety ‘even when administered in settings lacking basic mechanical monitoring, often by non-anesthesiologists.’”

Federal officials are expected to issue new guidance on ketamine use by EMS providers later this year. 

State lawmakers late Wednesday signed off on a series of amendments to the original measure, many of which were crafted to appease various emergency medical groups that had initially signaled disapproval of the proposal. A bevy of state and local EMS groups eventually expressed a neutral or supportive stance on the amended bill.

The Democratically-controlled judiciary committee swatted down a batch of additional amendments introduced by Republican Rep. Terri Carver that sought to strip several provisions of the measure that strengthen penalties for police who don’t prevent their colleagues from suggesting paramedics use drugs like ketamine on combative subjects. 

Specifications in the measure prohibit police and sheriff’s deputies from advocating for using ketamine on certain patients, or asking paramedics to use certain drugs. Officers who witness a colleague direct paramedics to use a certain drug and don’t relay the interaction to state licensing officials could be charged with a new state code related to failure to report, a first-class misdemeanor that could carry jail time. 

In 2018, reports surfaced that police in Minneapolis routinely asked first responders to subdue subjects with ketamine. 

Elijah McKnight, a 26-year-old man who was hospitalized in August 2019 after being dosed with ketamine at the behest of Arapahoe County Sheriff’s deputies, told lawmakers that he supports the bill, but believes the measure could go further. 

“I think that the use of ketamine needs to be completely eliminated outside of the hospital,” he said. 

Through her attorney, McClain’s mother, Sheneen, echoed, saying that the state should impose a wholesale ban on the drug.

“Ms. McClain is neutral on the ketamine bill as currently formulated. It simply does not go far enough,” attorney Qusair Mohamedbhai told reporters Wednesday evening. “Ms. McClain would like ketamine to be banned in the state of Colorado outside of medical settings. Any type of compromise simply does not acknowledge the death of Elijah McClain. How many young individuals need to die in the state of Colorado before our elected officials realize this is an extremely dangerous drug that has no business in the hands of paramedics or law enforcement, particularly in the scenes of crisis and chaos? Elijah McClain would still be dead if this bill passes. It does not change the reality. It simply does not go far enough. We appreciate that it’s a step in the right direction, but we are past incremental change on the backs of our dead community members.”

Aurora Police Chief Vanessa Wilson said officers have requested EMTs to sedate subjects in the past, a practice that is now banned as part of department protocol.

“We know that that has happened in the city of Aurora, where an officer, when the medical gets on scene, they’ll say, ‘can you get this guy to calm down?’ So we have given direction within our department no longer to do that, and I don’t have a problem with that part of the bill,” she said at a recent public meeting.

Aurora police never advocated for Aurora paramedics to use the drug on McClain, but the recent report commissioned by the city condemned the transfer of McClain’s care between the trio of officers who first detained him on Billings Street and the firefighter EMTs who sedated him. 

“The EMTs did not assert clear control of the situation and, in the panel’s view, it appears that Mr. McClain remained a police subject until he was sedated,” consultants wrote in their 157-page dossier. “It was not clear from the body-worn camera footage which agency was in control until after Mr. McClain was administered ketamine. Indeed, the footage shows that Aurora Fire personnel largely maintained distance and did not intervene even when Mr. McClain made sounds of pain or distress.”

Fire Chief Fernando Gray recently outlined a slew of new protocols and training intended to improve transfer of care from police to fire paramedics. 

Still, Wilson was concerned about potential confusion regarding new handoff procedures. 

“I feel that officers are going to have to give some information to fire of what they’re witnessing with (a) patient, and I just don’t want that to be misconstrued as we’re requesting or causing or directing,” she said earlier this month. 

Aurora Fire officials have not used ketamine since Aurora City Council members unanimously passed a moratorium on its use last fall. The local department will not continue its state waiver to use the substance, instead letting the permission expire next month, officials recently confirmed. Fire authorities would have to alert local politicos if they were to opt to use ketamine in the city again in the future. 

Officials began using the drug in the city in January 2019 after receiving a waiver from a state panel that determines which agencies can use ketamine. The measure discussed Wednesday would also rejigger the composition of that panel.

Aurora Fire officials administered ketamine four times in 2020, according to city staff. The last dose was given on Sept. 1, two weeks before the current moratorium took effect. 

If passed by the full legislature and signed by Gov. Jared Polis, state budget analysts predicted earlier this month the proposed bill will cost about $62,000 and syphon additional staff time from employees within the state health department in its first year. Dollars to cover those costs would come from the highway users tax fund, and no additional state appropriation would be needed.

The measure would also increase workloads for various state agencies and municipalities, including district attorneys offices and the Peace Officer Standards and Training board. 

The bill will now be forwarded to the full House for further discussion. 

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Dave Wasserman, (Drug Policy Reform Advocate)

Just how many young people have died from the use of ketamine by EMTs? The issue is not the drug. It is an extremely useful tool when used correctly and allowed under a medical director’s formulary. I can attest as having been personally experiencing excited delirium while at Decadence. I weighed 123lbs and was given 500mg of ketamine IV and did not die or experience any ill effects. I was probably saved from myself by Stadium Arcadian. This is policy that is taking us in the wrong direction for publicity reasons, so blame can be misplaced, and we can keep our heads in the sand and act as if officer culture is not the real issue.