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2022 fentanyl bill details

HB22-1326: Fentanyl Accountability and Prevention


Section 1: Legislative declaration


Section 2-6: Addresses the proposed criminal penalties for unlawful possession of synthetic opiates and for unlawful manufacturing, distributing, and dispensing of synthetic opiates. Specifically, making it a level 4 drug felony to posses:

“Any material, compound, mixture, or preparation that weighs more than one gram and not more than four grams and contains any quantity of fentanyl, carfentanyl, or an analog and the person  knew or had reasonable cause to believe that the material, compound, mixture, or preparation contained any quantity of fentanyl, carfentanyl, or an analog thereof.”

And, making it a level 1 drug misdemeanor for possession of “any material, compound, mixture , or preparation that weighs more than one gram and not more than four grams and contains any quantity of fentanyl, carfentanyl, or an analog thereof,” except that a fourth or subsequent offense of such possession is a level 4 drug felony.

And, making in a class 1 felony to possession any material, compound, mixture, or
preparation that weighs more than fifty grams and contains fentanyl, carfentanyl, or an analog thereof.

The possession of an opiate antagonist or a non-laboratory synthetic opiate detection test must not be used as evidence to prove the person knew or had reasonable cause to believe that the material, compound, mixture , or preparation1 contained any quantity of fentanyl, carfentanyl, or an analog.

See the legislature’s bill summary for additional details about the proposed penalties.


Sections 7, 8, 9, 10 and 11: Mandates courts to require a substance use disorder assessment for a person’s amenability to treatment upon conviction of an offense related to synthetic opioids and treatment placement as a condition of deferred judgment or probation and participation in fentanyl education program. If residential treatment is recommended, the cost must be paid from the Correctional Treatment Cash Fund for a person on probation and is determined by the court to be indigent, is represented by court – appointed counsel, or is otherwise unable
to afford the cost of the placement.

A person convicted of fentanyl possession felony, regardless of whether the person is receiving
treatment in a community- based or residential treatment facility must complete the Fentanyl Education Program developed by the Behavioral Health Administration (see Section 29 and 30 for an additional mandate). The Fentanyl Education Program must include the following:

  • the nature and addictive elements of synthetic opiates;
  •  the dangers of synthetic opiates to a person’s life;
  • access to and administration of opiate antagonists and non-laboratory synthetic opiate detection; and
  • laws regarding synthetic opiates.

The Fentanyl Education Program cost must be paid from the Correctional Treatment Cash Fund for a person on probation and is determined by the court to be indigent, is represented by court-appointed counsel, or is otherwise unable to afford the cost of the program

 
Section 12: Expands the state’s opiate antagonist (Naloxone) prescription standing order to include the following additional entities, which will allow these entities to apply for Naloxone through the Colorado Naloxone Bulk Purchase Fund:

  • An institution of higher education, or an employee or agent of the institution of higher education.
  • A library, or an employee or agent of the library.
  • A community service organization, or an employee or agent of the community service organization.
  • A religious organization, or an employee or agent of the religious organization.
  • A local jail, or an employee or agent of the local jail; a multijurisdictional jail, or an employee or agent of the multijurisdictional jail.
  • A municipal jail, or an employee or agent of the municipal jail.
  • A correctional facility, or an employee or agent of the correctional facility.
  • A private contract prison, or an employee or agent of the private contract prison.
  • A community corrections program, or an employee or agent of the community corrections program.
  • A pretrial services program, or an employee or agent of the pretrial services program.
  • A probation department, or an employee or agent of the probation department.
  • A local public health agency, or an employee or agent page of the local public health agency.
  • A mental health professional.

Section 13: Amends the statute for immunity from liability from any civil damages in furnishing and administering an opiate antagonist to the entities listed in Section 12.


Section 14: Creates a new statute regarding immunity of liability for furnishing and distributing non-laboratory synthetic opiate detection tests (e.g. fentanyl test strips). A non-laboratory synthetic opiate detection tests is defined in this bill as a product that is approved by the federal Food and Drug Administration and is intended or designed to detect the presence of a synthetic opiate.

Sections 15 and 16: Requires continuity of care for individuals with an opioid or other substance use disorder and furnishes an opiate antagonist, if requested by the individuals, and provides a referral to a community provider for medication-assisted treatment.


Section 17: Requires community corrections to assess individuals living in a community corrections program for substance use withdrawal and develop protocols for medical detoxification monitoring, withdrawal management and medication-assisted treatment.


Section 18: Expands the list of persons or entities that are immune from liability for administration of an opiate antagonist to those listed in Section 12.


Section 19: Allows the Correction Treatment Board to direct money from the Correction Treatment Cash Fund for overdose prevention, including medication-assisted treatment and for furnishing non-laboratory synthetic opiate test strips.


Section 20: Allows schools to furnish non-laboratory synthetic opiate test strips.


Section 21: Appropriates $19.7 million from ARPA funds to the Naloxone bulk purchase fund in the Colorado Department of Public Health and Environment (CDPHE) for SFY 2022-2023 with a repeal date of July 1, 2024, and expands eligible entities that can request an receive opiate antagonists from the bulk purchase fund to those listed in Section 12.


Section 22: Appropriates $600,000 to CDPHE for purchasing non-laboratory synthetic opiate detection tests for distribution to eligible entities listed in Section 12; CDPHE is authorized to prioritize distribution based on need of each entity.


Section 23: Subject to available appropriations, mandates CDPHE to develop, implement, and maintain a statewide prevention and education campaign regarding the dangers of fentanyl, resources for addiction treatment and services, and laws regarding fentanyl, including criminal penalties and immunity for reporting on an overdose event; the campaign can include use of various media and a website, and conduct five regional trainings for community partners to implement youth health development strategies during FY 2022-2023. ($5,000,000 for the education campaign and $50,000 for regional trainings).

Section 24: Amends and expands eligible entities for the Harm Reduction Grant Program administered by CDPHE to include nonprofit organizations, local public health agencies, tribal agencies or programs, Federally Qualified Health Centers, Community Mental Health Centers, and law enforcement agencies. Allows for use of grant fund for: general operating expenses and direct and indirect costs; including trainings in administering opiate antagonists; overdose prevention; safer substance use practices; safe disposal;  access to opiate antagonists and non-laboratory synthetic opiate detection tests;  public education about synthetic opiates and overdose risks; local convenings for developing community-based approaches for overdose prevention; intervention and harm reduction services; evidence-based research concerning best or promising practices in overdose prevention; intervention, harm reduction, and medication-assisted treatment protocols;  developing or expanding existing community-based organizations; and support liaisons with experience collaborating with community-based organizations and local public health agencies.


Section 25: Appropriates $6 million from ARPA funds for the Harm Reduction Grant Program Cash Fund for FY 2022-2023 and is repealed July 1, 2024.

Sections 26 and 27: Mandates that county jails that receive Jail-based Behavioral Health Services Program funding to assess individuals booked into jail for substance use withdrawal symptoms, develop protocols for medical detoxification monitoring procedures. There is also a requirement for jails that receive jail-based behavioral health services to develop policies on or before January 1, 2023, that describes the provision of medication-assisted treatment and other withdrawal management care upon release from jail. ($10,000,000)

Section 28: Mandates Managed Service Organizations (MSOs) to report to the Colorado General Assembly by January 1, 2023, on the number of medication-assisted treatment providers employed by MSOs and who are trained to provide medication-assisted treatment, withdrawal management, recovery services at public high schools and recovery residences. ($700,000)

Section 29 and 30: Mandates of Office of Behavioral Health/Behavioral Health Administration to develop a fentanyl education program with information on the nature and addictive elements and dangers of synthetic opiates, access to administration of opiate antagonist and non-laboratory synthetic opiate detection tests, including criminal penalties and immunity for reporting an overdose event. [Note: This section relates to Section 11]

Section 31: Amends C.R.S. §18-1.3-103.5 (Felony convictions), adding “(e) A violation of Section 18-18-403.5 (2.5)(a), which relates to ****.

Section 32: Amends C.R.S. §24-72-706 (Sealing of criminal conviction records), adding to (b)(II) of that statute the following language: “or a level 4 drug felony for a conviction pursuant to 18-18-403(2.5);” and adds to (b)(III) of that statute the following language: “except a level 4 drug felony for a conviction pursuant to 18-18-403(2.5).”

Section 33: Amends C.R.S. §18-1.3-801 (Punishment for habitual criminals) adding a language that provisions of subsection (2)(a) of this statute “do not apply to a convection for a level 4 drug felony committed on or after July 1, 2022, pursuant to Section 18-18-403.5(2.5) or a
conviction for a level 4 drug felony committed on or after July 1, 2022, for attempt or conspiracy to commit unlawful possession of fentanyl, carfentanil, benzimidazole opiate, or an analog

thereof, as described in section 18-18-403.5 (2.5), even if the person has been previously convicted of three or more qualifying felony convictions.”

Section 34 and 35: Mandates that the Department of Public Health and Environment contract with an independent entity to conduct a study and publish a report concerning the impact and implementation of house bill 22-1326 in consultation with the Judicial Department, the Office of Behavioral Health, and other stakeholders identified by the department in developing and
issuing a request for proposals to ensure candidates have expertise in data collection and program analysis, and relevant criminal law and harm reduction issues. The bill describes the specific data and information that must be included in the study and at a minimum must identify and report findings on available data from July 1, 2019 through June 30, 2024 obtained from the Colorado Judicial Department and treatment providers serving the probation populations. The report must be submitted by December 31, 2024. ($300,000)

Sections 36 and 37: Allocated $10 million for distribution of Managed Care Organizations (MSO) and mandates by January 1, 2023, that each MSO shall:

  • Contract to provide short-term residential placement for withdrawal management, crisis stabilization, or medication-assisted treatment for persons in immediate need of detoxification and stabilization services, with a provider who is licensed by the State of Colorado to provide those services.
  • Develop a payment schedule that includes admission and service rates from the managed service organization to the provider, and organizational funding for training and coordination with first responders or referring entities
  • Provide training to, and ongoing coordination with, first responders or referring entities concerning the available services to be utilized in lieu of arrest and transport to jail, to the
    greatest extent possible.

Section 38: Creates in the Division of Criminal Justice the Synthetic Opiate Poisoning Investigation and Distribution Interdiction Grant Program to provide grants to law enforcement agencies for the purpose of investigating deaths caused by synthetic opiate poisoning and disrupting synthetic opiate supplies.

Section 39: Mandates the Colorado Attorney General to study the use of the internet, including retail, payment, and social media platforms, for the purpose of trafficking fentanyl, fentanyl
analogs or compounds thereof, synthetic opiates, and counterfeit prescription drugs and submit a report to the Colorado General Assembly by March1, 2023. The bill describes the specific areas of focus for the study and allocates $150,000 for conducting the study.

Section 40: Adds carfentanyl to the state statute for Scheduled II controlled substances.

Section 41 and 43:  Mandates the BHA to contract no later than November 1, 2022,   with an independent nonprofit or educational entity that has expertise in clinical epidemiology, biostatistics, substance use and addiction, data collection and analysis, and, if possible, the intersection between the criminal justice system and substance use, to conduct an independent study of the health effects of criminal penalties pursuant to changes to section 18-18-403.5 (2.5) in House Bill 22-1326.

Section 42 and 44: Allows the Correctional Treatment Cash Fund to direct funds for the study of health effects of felonizing fentanyl possession.

Section 45: Mandates that by July 1, 2023 facilities, whether operated by a governmental entity or private contractor, to provide medication-assisted treatment, and other appropriate withdrawal management care to a person with a substance use disorder through the duration of the person’s incarceration, as medically necessary, including at a minimum:

  • Performing a nonmedical evaluation, consistent with guidelines developed by the behavioral health administration, of the person upon entry into custody at the facility for recent substance use.
  • Offer medication approved by the federal food and drug administration that are approved to treat opiate use disorder, which must include agonists, partial agonists, and antagonists, to a person in custody with an opiate use disorder. The person, in collaboration with the treating provider, must be given a choice concerning what medication is prescribed, and the facility must provide the medication requested. A person may request to change their medication at any time while in custody.
  • Shall refer the person with an SUD or who has recently use a substance to the facility’s medical provider for an evaluation, and subsequent diagnosis, prescription, or induction of medication-assisted treatment.
  • Shall provide the same medication to the person while the person is in custody if the person indicates that the person was taking medication that is approved by the federal food and drug administration prior to entry into custody at the facility to treat
    a substance use disorder.

Counties are encouraged to use county funding available from a settlement or damage award from opiate-related litigation to support jails in complying with the requirements of this section.

Section 46 and 47: Mandates the Behavioral Health Administration to provide technical
assistance to jails in meeting the requirements of in Section 45 with an appropriation of $3 million, including providing funding to jails to cover the services required. Technical assistance includes development and implementation of medication-assisted treatment, approval of prescribers by the U.S. Drug Enforcement Agency, and other appropriate withdrawal management care, and assistance with identifying bulk purchasing opportunities for necessary services.

Section 48: Allows for emergency medical service providers, emergency departments, state and local law enforcement agencies, sheriffs’ offices, and coroners may participate in the web-based Overdose Detection Mapping Application Program to report incidences of fatal and non-fatal drug overdoses and synthetic opiate poisonings.

Section 49: Creates the Overdose Trends Review Committee in the Colorado Department of Public Health and Environment and mandates the department to convene interested stakeholders for the purpose of developing recommendations for the establishment of an Overdose Trends
Review Committee that would be responsible for and   submit a report on or before September 1, 2023, of  recommendations regarding the establishment of the review committee to the Joint
Budget Committee and any Substance Use Interim Committee existing at that time. The department shall establish an Overdose Trends Review Committee by September 1, 2024.

Section 50: Allows for hospital or emergency department to receive reimbursement under the medical assistance program for the cost of an opiate antagonist a prescriber dispenses an opiate antagonist upon discharge to a medical assistance recipient who is at risk of experiencing an opiate-related drug overdose event or to a family member, friend, or other person in a position to assist a medical assistance recipient who is at risk of experiencing an opiate-related drug overdose event.

Section 51 and 52: Adds a  duty of the Behavioral Health Administration train emergency departments and certified peace officers in the procedures required pursuant to sections C.R.S.§27-81-111 and C.R.S.§ 27-81-112.

Section 53 and 54: Adds to the statue concerning involuntary commitment of a person with a substance use disorder (C.R.S.§ 27-81-112) that a certified peace office can submit a petition for involuntary commitment.

Section 55: Mandates the legislative service agencies of the Colorado General Assembly to conduct a post-enactment review of the implementation of this act utilizing the information contained in the legislative declaration set forth in Section 1 of the bill.

Section 56: appropriations.

  1. For the 2022-23 State Fiscal Year, $14,389,055 is appropriated to the Department of Human Services for use by the Behavioral Health Administration. This appropriation consists of $10,986,092 from the general fund, $402,963 from the correctional treatment cash fund created in section 18-19-103 (4)(a), C.R.S., and $3,000,000 from the behavioral and mental health cash fund created in section 24-75-230 (2)(a), C.R.S., which is of money the state received from the federal coronavirus state fiscal recovery fund. To implement this act, the
    administration may use this appropriation as follows:
  1. $286,092 from the general fund for program administration related to community behavioral health administration, which amount is based on an assumption that the administration will require an additional 3.6 FTE;
  • $10,000,000 from the general fund for treatment and detoxification programs related to substance use treatment and prevention services pursuant to section 27-80-107.8 (2), C.R.S.;
  • $700,000 from the general fund for managed service organization regional evaluations related to substance use treatment and prevention services;
  • $252,963 from the correctional treatment cash fund created in section 18-19-103 (4)(a), C.R.S., for a study on the health effects of criminal penalties related to substance use treatment and prevention services, which amount is based on an assumption that the administration will require an additional 0.5 FTE;
  • $150,000 from the correctional treatment cash fund created in section 18-19-103 (4)(a), C.R.S., for a fentanyl education program related to substance use treatment and prevention services; and
  • $3,000,000 from the behavioral and mental health cash fund created in section 24-75-230 (2)(a), C.R.S., for jail-based behavioral health services related to integrated behavioral health services. Any money appropriated in this subsection (1)(d) not expended prior to July 1, 2023, is further appropriated to the administration from July 1, 2023, through
    December 30, 2024, for the same purpose.
  •  For the 2022-23 state fiscal year, $869,288 is appropriated to the judicial department for use by probation and related services. This appropriation consists of $138,362 from the general fund and $730,926 from the correctional treatment cash fund created in section 18-19-103
    (4)(a), C.R.S. To implement this act, the department may use this appropriation as follows:
  1. $138,362 for probation programs, which amount is based on anassumption that the department will require an additional 1.6 FTE; and
  2. $730,926 from the correctional treatment cash fund created in section 18-19-103 (4)(a), C.R.S., for offender treatment and services.
  •  For the 2022-23 state fiscal year, $150,000 is appropriated to the department of law for use by administration. This appropriation is from the general fund. To implement this act, the department may use this appropriation for operating expenses.
  • For the 2022-23 state fiscal year, $5,792,413 is appropriated to
    the department of public health and environment for use by the prevention
    services division. This appropriation is from the general fund. To
    implement this act, the division may use this appropriation for
    administration as follows:
  • $112,413 for personal services and related operating expenses,
    which amount is based on an assumption that the division will require an
    additional 1.5 FTE;
  • 300,000 for non-laboratory synthetic opiate detection tests
    pursuant to section 25-1.5-115.3 (1), C.R.S.;
  • $5,000,000 for an education campaign pursuant to section 25-1.5-115.5 (1), C.R.S.;
  • $50,000 for regional trainings pursuant to section 25-1.5-115.5 (3), C.R.S.;
  • $30,000 for website development pursuant to section 25-1.5-115.5 (4), C.R.S.; and
  • $300,000 for an independent study pursuant to section
    25-20.5-1501, C.R.S.
  • For the 2022-23 state fiscal year, $7,000,000 is appropriated to the department of public safety for use by the division of criminal justice. This appropriation is from the general fund and is based on an assumption that the division will require an additional 1.8 FTE. To implement this act, the division may use this appropriation for DCJ administrative services. Any money appropriated in this subsection (8) not expended prior to July 1, 2023, is further appropriated to the division for the 2023-24 state fiscal year.
  •  For the 2022-23 state fiscal year, $360,000 is appropriated to the department of health care policy and financing. This appropriation is from the general fund. To implement this act, the department may use this appropriation for medical services premiums.
  • For the 2022-23 state fiscal year, $19,700,000 is appropriated to the opiate antagonist bulk purchase fund created in section 25-1.5-115 (1)(a), C.R.S. This appropriation is from the behavioral and mental health cash fund created in section 24-75-230 (2)(a), C.R.S., and is of money the state received from the federal coronavirus state fiscal recovery fund.  
  • For the 2022-23 state fiscal year, $6,000,000 is appropriated to the harm reduction grant program cash fund created in section 25-20.5-1102 (1), C.R.S. This appropriation is from the behavioral and mental health cash fund created in section 24-75-230 (2)(a), C.R.S., and is of money the state received from the federal coronavirus state fiscal recovery fund
  • For the 2022-23 state fiscal year, $300,000 is appropriated to the department of public health and environment for use by the prevention services division. This appropriation is from the behavioral and mental health cash fund created in section 24-75-230 (2)(a), C.R.S., which is of money the state received from the federal coronavirus state fiscal recovery fund. To implement this act, the division may use this appropriation for administration. Any money appropriated in this subsection (6) not expended prior to July 1, 2023, is further appropriated to the division from July 1, 2023, through December 30, 2024.