Legislative update — March 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 March 23.)
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.
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.
There was an amendment passed after 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, would 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.
The bill passed the Senate on March 22 and is waiting to be introduced in the House, when it will be assigned to a committee and given a hearing date.
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, which was signed by Gov. Jared Polis on March 3, extends 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.
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 (MME) 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 passed the Senate and has been assigned to the House Health & Insurance Committee, which is scheduled to hear testimony on March 28.
Senate Bill 23-171 Large Entertainment Facility Substance-free Seating Requirement co-sponsored by Senator Kevin Priola and Representative Chris deGruy Kennedy 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. It also would make 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.
S.B. 23-171 was introduced on Feb. 27 and assigned to Senate Finance Committee and is scheduled to be heard at the March 28 committee meeting.
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 has been passed by the House and the Senate Education Committee, and it will next go to the Senate 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. H.B. 1164 is scheduled to be heard in the House Judiciary Committee on Wednesday, April 5, at 1:30 p.m.
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 would create 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, with Senator Robert Rodriguez as the Senate sponsor. This bill passed the House and is assigned to the Senate Judiciary Committee, where it is scheduled to be heard on Monday, April 3.
The bill includes a change 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 would restore immunity for simple possession, add immunity for drug sharing, and add 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 criterion 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 by Rep. Jennifer Bacon. The bill is assigned to the House Judiciary and is scheduled to be heard in that committee on Wednesday, April 5.
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 introduced by Reps Elisabeth Epps and Jenny Willford, has passed the house and is headed to the Senate, where Sens. Kevin Priola and Julie Gonzales are the prime sponsors.
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.
The bill has not been introduced and assigned to a Senate committee, and a hearing date is to be determined.
HB23-1204 Recovery Residence Discharge Policy is co-sponsored by Rep. William Lindstedt and Sen. Kevin Priola, has passed the House and is going to the Senate.
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.
The bill has yet to be assigned to a Senate committee.