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Legislative update — April 2023

By José Esquibel

The General Assembly is back in session, and the Consortium is tracking 11 bills that affect opioids and substance use treatment and prevention.

Follow the links to see the most recent versions of the bill and track their progress. Please also consult the Colorado Department of Public Health and Environment’s bill tracking page for updates and to see when they will be heard by committees.

Just a reminder—this update is prepared as an informational service to our stakeholders and does not represent the position of the Consortium on any pending legislation.

Click on the links to access copies of the most recent versions of the bills and to track progress in the legislative process.

(Please note, the information is current as of April 30.)

Senate Bill 23-041 Prescription Drugs for Off-label Use

Sens. Joann Ginal and Jim Smallwood and Rep. Judy Amabile were the prime sponsors of Senate Bill 23-041 Prescription Drugs for Off-label Use, which was postponed indefinitely on March 21 by the House Health & Insurance Committee after being approved by the Senate. The bill would have authorized a physician, a physician assistant, and an advanced practice registered nurse (prescriber) to prescribe and administer a drug approved by the federal Food and Drug Administration for an off-label use if:

  • The off-label use of the drug for the indication has longstanding, common use
  • There is medical evidence to support the off-label use and no known evidence contraindicating such off-label use
  • The prescriber has provided the patient or a minor patient’s parent or guardian with an informed consent form, and the patient or parent or guardian has signed the form. 

The bill would have applied the same standard of care for the off-label use of the drug as for the on-label use of the drug. It would also have clarified that a pharmacist who fills a prescription for off-label use would not be subject to discipline by the state board of pharmacy.

Senate Bill 23-109 Criminal Penalty Controlled Substance Supplier was introduced by Senator Byron Pelton and Senator Kyle Mullica. This bill passed out of the Senate on March 22, 2023, and was assigned to the House Judiciary Committee. As of April 30, it has not been scheduled for a hearing.

The bill proposes a state criminal penalty for the supplier when a person dies as a result of the use of a controlled substance. The bill makes it a level 1 drug felony if a person sells, dispenses, distributes, or otherwise transfers any quantity of a controlled substance or any material, compound, mixture, or preparation that contains any amount of a controlled substance and the sale, dispensing, distribution, or transfer is the proximate cause of the death of another person who used or consumed the controlled substance material, compound, mixture, or preparation.

There was an amendment passed during the second reading on the Senate floor intended to ensure that the proposed penalties apply to drug traffickers who profit from the sale of drugs and not apply to instances of a death as a result of shared drug use without remuneration and is for the purpose of consuming all of the controlled substance with another person or persons at a time contemporaneous with the transfer.

Senate Bill 23-140 Fentanyl Study Deadline and Appropriation was introduced on February 6. This bill was signed by the governor on March 3, 2023.

The bill extends the deadline from January 1, 2023, to October 1, 2023, for when the Department of Public Health and Environment must contract with an independent entity to conduct a study as mandated in House Bill 22-1326 Fentanyl Accountability and Prevention. The bill extends the authority for the department to use the appropriation received in the 2022-23 state fiscal year to pay for the independent study through the 2024-25 state fiscal year.

Senate Bill 23-144 Prescription Drugs for Chronic Pain was introduced by Senator Ginal on February 8. This bill was passed on April 17, 2023, and is being sent to the Governor for signature.

The bill allows a health-care provider to prescribe, dispense, or administer a schedule II, III, IV, or V controlled substance (drug) to a patient in the course of treatment for a diagnosed condition that causes chronic pain.

The bill also clarifies that the prescribing health-care provider is not subject to disciplinary action by the appropriate regulator for prescribing a dosage of a drug that is equal to or more than a morphine milligram equivalent dosage recommendation or threshold specified in state or federal opioid prescribing guidelines or policies.

The bill prohibits a health-care provider from refusing to accept or continue to treat a patient solely on the basis of the dosage of a drug the patient requires for the treatment of chronic pain. A health-care provider is also prohibited from tapering a needed dosage solely to meet a predetermined dosage recommendation.

The bill also prohibits a pharmacist, health insurance carrier, or pharmacy benefit manager from refusing to fill or approve the coverage for a drug solely on the basis of the dosage requirement of a patient.

This bill passed out of the Senate Health & Human Service Committee on March 2, 2023, and was sent to the Senate Committee of the Whole to be read and voted upon by all House members.

This bill passed out of the Senate on March 9, 2023, and will assigned to a House committee.

Senate Bill 23-171 Large Entertainment Facility Substance-free Seating Requirement co-sponsored by Senator Kevin Priola and Representative Chris deGruy Kennedy was introduced in February 27, 2023. The bill was postponed indefinitely during its first hearing in the Senate Finance Committee on March 28, 2023, and did not pass out of committee. There will be no more action on this bill in the current session.

The bill proposes a requirement for substance-free seating at large entertainment facilities, specifically requiring such facilities to designate and enforce at least four percent of their seating capacity as substance-free seating and making failure to comply with such requirement a basis for refusal or denial of an alcohol beverage license renewal or initial license issuance and other forms of license-related discipline.

House Bill 23-1009 Secondary School Student Substance Use was introduced on January 9 by Representative Lindsay. The bill passed out of the House Appropriations Committee on March 9, 2023 with two amendments and was referred to the House Committee of the Whole. The bill passed the House then passed out of the Senate Education Committee on March 22, 20023. This bill was signed by Gov. Polis on April 26.

The bill creates the Secondary School Student Substance Use Committee in the Department of Education to develop a practice, or identify or modify an existing practice, for secondary schools to implement that identifies students who need substance use treatment, offers a brief intervention, and refers the student to substance use treatment resources.  

House Bill 23-1164 Opioid Harm Reduction was introduced by Representative Mike Lynch on February 2. The bill proposed to strengthen the penalties for possession of fentanyl by eliminating the requirement that the possession must be knowing. The bill was assigned to the Senate Judiciary Committee and it was postponed indefinitely on April 11, 2023. There will no more action on this bill in the current session.

Under current law, the knowing possession of any material, compound, mixture, or preparation that weighs more than one gram and not more than 4 grams and contains any quantity of fentanyl is a level 4 drug felony, except that, if a defendant shows supporting evidence to establish that the defendant made a reasonable mistake of fact and did not know that the controlled substance contained fentanyl. The bill proposes to eliminate this provision.

Under current law, the knowing possession of any material, compound, mixture, or preparation that weighs not more than one gram and contains any quantity of fentanyl is a level 1 drug misdemeanor; except that a fourth or subsequent offense is a level 4 drug felony. The bill proposes to eliminate this provision.

The bill creates the opioid antagonist fund in the department of education to bulk purchase and distribute opioid antagonists to eligible schools. For the 2023-24 state fiscal year, the general assembly appropriates $2 million to the fund from the general fund.

The bill extends civil and criminal immunity to the department of education, or a person acting on behalf of the department, for acting in good faith to furnish an opioid antagonist to an eligible school.

The bill requires every agency that employs a peace officer to submit an annual report to the department of public health and environment (department) concerning every incident in which a peace officer administered an opioid antagonist to an individual. Using that information the department creates a consolidated report and provides it to the house of representatives judiciary and public and behavioral health and human services committees and the senate judiciary and health and human services committees

House Bill 23-1167 Reporting of Emergency Overdose Events was introduced by Representative Chris deGruy Kennedy on February 2, 2023. This bill passed out of the House with amendments on March 3, 2023 and passed out of the Senate on April 10, 2023. The bill is on the way to be signed by the governor.

The bill includes a fix to Colorado’s Good Samaritan law because of an oversight in last year’s fentanyl accountability bill that instituted new criminal penalties for possession of under 4 grams of fentanyl and neglected to cross reference the Good Samaritan law.

As introduced, this restores immunity for simple possession, adds immunity for drug sharing, and adds an affirmative defense to the prosecution for unlawful distribution, manufacturing, dispensing, or sale of a material, compound, mixture, or preparation that weighs not more than 4 grams for those who comply with the requirements of the Good Samaritan law.

An amendment was added to extend immunity to others who remain to provide assistance in accordance with the Good Sam law criteria of cooperation with law enforcement.

On the House floor, the following amendments were made to the bill:

  • Replaced the affirmative defense for distribution under 4 grams with a sentence mitigator to drug misdemeanor 1 (will continue to exclude manufacturing).
  • Clarified that for immunity to be extended to third parties, they must take action “to render aid to or seek aid for” the person overdosing.
  • Struck immunity for possession of substances tested to be more than 60% pure fentanyl under 18-18-403.5(2.7). No user-level fentanyl in Colorado is anywhere near this threshold, and Colorado isn’t currently testing purity.

HB23-1169 Limit Arrest for Low-Level Offenses was introduced on February 2, 2023, by Representative Jennifer Bacon, Vice Chair of the Judiciary Committee. The bill is assigned to the House Judiciary and was postponed indefinitely on April 5, 2023, and did not pass out of committee. There will be no more action on this bill in the current session.

The bill concerns a non-arrest response by law for certain low-level offenses. The bill prohibits a peace officer from arresting a person based solely on the alleged commission of a petty offense, except for petty theft, a drug petty offense, a class 2 traffic misdemeanor or comparable municipal offense, and all municipal offenses for which there is no comparable state misdemeanor offense, unless the location of the person is unknown and the issuance of an arrest warrant is necessary in order to subject the person to the jurisdiction of the court.

Included in the statuary definition of a drug petty offense is possession of drug paraphernalia.

HB23-1202 Overdose Prevention Center Authorization was introduced on February 15 by Representative Elisabeth Epps and Representative Jenny Willford. The bill passed out of the House on March 11, 2023, with amendments. The bill was defeated by the Senate Health & Human Services Committee on April 26, and there will be no more action on the bill in this session.

The bill passed out of House on a v0te of 43-21, on March 11, 2023 with amendments.

The short title of this bill is “Local Control of Life-saving Overdose Prevention Centers Act.” The bill specifies that a city may authorize the operation of an overdose prevention center within the city’s jurisdiction for the purpose of saving the lives of persons at risk of preventable overdose. The introduced bill has 28 House sponsors and 7 Senate sponsors.

The bill was heard on February 21 in the House Public Health & Behavioral Health & Human Services Committee and passed out of committee on a vote of 8-2. The bill was referred to the House Committee of the Whole to be read and voted upon by all House members.

HB23-1204 Recovery Residence Discharge Policy is co-sponsored by Rep. William Lindstedt and Sen. Kevin Priola and was introduced in the House on February 15, 2023.  The bill passed out of the Senate on April 12, 2023, and on the way to the Governor’s Office for signature.

The bill concerns the discharge of a client from a recovery residence and requires a recovery residence to implement a client discharge and transfer policy in order to discharge or transfer a client from a recovery residence in certain circumstances. The policy must be approved by the recovery residence’s certifying body before a discharge or transfer may occur.

The bill requires that prior to discharging a client from a recovery residence, the recovery residence shall provide the client with referrals to treatment or support services, alternative housing options, and recommendations for follow-up care.

The bill requires the certifying body to establish a grievance and appeal process for clients to use when they believe they have been wrongfully discharged or transferred from a recovery residence.

The bill allows a certified recovery residence or client that is adversely affected or aggrieved by a decision made by the certifying body to appeal the decision to the Colorado Department of Personnel and Administration, Office of Administrative Courts.

HB23-1244 Regional Health Connectors was introduced on March 13, 2023, by Rep. Chris DeGruy Kennedy and Elizabeth Velasco. It passed out of the House Committee on Public & Behavioral Health &Public Health on March 28 and the Senate Health & Human Services Committee on April 26. It will now go to the Senate Appropriations Committee and is not yet scheduled for a hearing.

The bill moves the Regional Health Connector Program from the University of Colorado School of Medicine to the Prevention Services Division in the Colorado Department of Public Health and Environment. The bill requires the division to contract with a third-party entity to coordinate and oversee the program. The contracted entity is required to distribute money to each locally based host organization, which hires and supports a regional health connector to engage in program activities.

HB23-1258 Drug Crime Cost Task Force was introduced on March 26, 2023 by Rep. Said Sharbini and Rep. Lorena Garcia and concerns the creation of a task force to study the costs associated with drug crimes to review and evaluate the costs associated with enforcement of and incarceration for drug crimes task force (task force).

The bill passed out of the House Judiciary Committee on April 11, 2023 with two amendments that added an actuarial cost study and amends the dates for the study, the task force meetings, and submission of final report. The bill was referred to House Appropriations and will be heard on May 1. The fiscal note on this bill is $30,210.

The task force has the following proposed duties:

  • Consider and determine state and local government costs associated with the investigation of drug crimes and the enforcement of drug laws.
  • Consider and determine the costs incurred by the judicial department in adjudicating drug crimes and supervising defendants convicted of drug crimes.
  • Consider and determine state and local government costs associated with confining and incarcerating individuals accused of and convicted of drug crimes and the state costs associated with parole supervision for those convicted of drug crimes.
  • Determine the total state and local government costs associated with enforcing drug laws, investigating and punishing drug crimes, and rehabilitating those convicted of drug crimes.
  • Make recommendations to the general assembly regarding how money saved by reducing drug crimes or sentencing for drug crimes could be spent to reduce substance use and dependence in Colorado.

The task force would prepare and submit a report of its findings by December 31, 2023, and shall present the report to the judiciary committees of the House of Representatives and Senate by January 30, 2024.