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Legislative Update — February 2023

The General Assembly is back in session, and as always lawmakers are considering several bills about opioids and substance use treatment and prevention. Here are eight that the Consortium is following.

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.

(Please note, the information is current as of Feb. 16.)

Sens. Joann Ginal and Jim Smallwood and Rep. Judy Amabile are the prime sponsors of Senate Bill 23-041 Prescription Drugs for Off-label Use, which authorizes 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 applies the same standard of care for the off-label use of the drug as for the on-label use of the drug. The bill clarifies that a pharmacist who fills a prescription for off-label use is not subject to discipline by the state board of pharmacy.

The bill has passed the Senate and has been introduced in the House, where it will be heard by the Health & Insurance Committee. A date for that hearing has not been scheduled.

Sens. Byron Pelton and Kyle Mullica introduced Senate Bill 23-109 Criminal Penalty Controlled Substance Supplier. 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.

The bill has been assigned to the Senate Judiciary Committee and is scheduled to be heard on Monday, March 6, at 1:30 p.m.

Senate Bill 23-140 Fentanyl Study Deadline and Appropriation affects the timeline for the Colorado Department of Public Health and Environment’s study of the impacts of last year’s Fentanyl Accountability and Prevention Act, H.B. 22-1326. The bill would extend the CDPHE’s deadline to find an independent entity to conduct the study to Oct. 1, 2023, and it allows the CDPHE to pay for the study through the 2024-25 fiscal year. The bill has passed the Senate and was assigned to the House Appropriations Committee.

Senate Bill 23-144 Prescription Drugs for Chronic Pain was introduced by Senator Ginal and would allow 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.

The bill was assigned to the Senate Health & Human Services Committee and will be heard during its hearing on Thursday, March 2, at 1:30 p.m.

House Bill 23-1009 Secondary School Student Substance Use was introduced by Rep. Mandy Lindsay and Sen. Dominick Moreno. 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. The bill passed out of the House Education Committee and was moved to the House Appropriations Committee. The next hearing of the bill has not yet been scheduled.

House Bill 23-1164 Opioid Harm Reduction was introduced by Rep. Mike Lynch and proposes to strengthen the penalties for possession of fentanyl by eliminating the requirement that the possession must be knowing.

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.

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 concerning every incident in which a peace officer administered an opioid antagonist to an individual. Using that information, the department would create a consolidated report and provide it to the judiciary and public and behavioral health and human services committees in the House of Representatives and Senate.

H.B. 1164 is scheduled to be heard in the House Judiciary Committee on Tuesday, Feb. 21, at 1:30 p.m.

House Bill 23-1167 Reporting of Emergency Overdose Events was introduced by Rep. Chris deGruy Kennedy and 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, the bill 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.

H.B. 1167 was assigned to the House Judiciary Committee and will be heard on Tuesday, Feb. 21, at 1:30 p.m.

HB23-1202 Overdose Prevention Center Authorization was introduced on Feb. 15 by Reps. Elisabeth Epps and Jenny Willford and Sens. Kevin Priola and Julie Gonzales. The short title of this bill is the “Local Control of Life-saving Overdose Prevention Centers Act” and, if passed, would allow cities to 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 seven Senate sponsors.

The bill has been assigned to the Public & Behavioral Health & Human Services Committee. The hearing date has not yet been scheduled.