By Marissa Ventrelli (February 23, 2024)
Colorado lawmakers on Tuesday tackled two proposals that offer convergent — and divergent — approaches to combatting drug abuse during a discussion that starkly illuminated on ideological disagreements at the state Capitol.
Both bills emerged out of ad hoc panel, which met over the summer as a response to soaring addiction rates nationwide and in Colorado. Colorado ranks in the Top 10 states in the nation for drug use, according to the U.S. Substance Abuse and Mental Health Services Administration.
Advocates and policymakers agree that addressing such a complex issue requires a multifaceted response, but they often clash in their preferred solutions. “Harm reduction” advocates argue that tougher penalties have not solved the country’s drug abuse crisis, while those who argue for a tougher approach say policies should not encourage drug use.
In 2022, for example, those on the “harm reduction” side argued against making possession of any amount of fentanyl a felony. The other side insisted the state should adopt a zero tolerance policy against fentanyl, arguing a small amount is enough to kill anyone.
The first bill, House Bill 1037, focuses on several measures, including the distribution of antagonists, such as Narcan, and exempts individuals who receive paraphernalia from a syringe exchange program from being charged with drug possession. The second bill, House Bill 1045, deals with substance treatment.
Notably, the first section of HB 1037 exempts doctors from being required to report injuries that patients have acquired via the use or possession of drugs.
The bill clarifies that civil and criminal immunity — which already extends to an individual who administers an antagonist to someone who overdoses — also applies to someone who distributes the antagonist. The proposal adds a clause saying the state, in fact, encourages the distribution of expired antagonists.
Another provision exempts users who are using paraphernalia to participate in an exchange program from facing charges.
The bill also specifies that funding allocated by the Department of Public Health and Environment for opioid tests can also be used to purchase other testing equipment, such as fentanyl and xylazine test strips.
The other sections focus on revising language, substituting all instances of the term “opiate” to “opioid. One of the bill’s supporters explained that the term “opiate” only accounts for natural opioids, such as heroin and morphine, while opioid refers to both natural and synthetic products.
The bill, which the House Health and Human Services Committee ultimately advanced, is co-sponsored by Rep. Elisabeth Epps, D- Denver, and Sen. Kevin Priola, D- Aurora in the Senate.
Supporters: Incarceration won’t solve crisis
During the hearing, supporters said the current approach to the drug crisis is outdated.
Rep. Chris deGruy Kennedy, D- Lakewood, one of the bill’s sponsors, said users often neglect seeking healthcare for fear of being punished or arrested.
Lisa Raville of the Harm Reduction Action Center echoed that view, arguing that a “harm reduction” approach tends to be a more effective treatment solution than incarceration.
“People who use drugs and health care providers have a very tumultuous relationship,” she said. “For over 20 years, people have not wanted to access quality health care in the emergency departments because they were being warrant-checked and arrested out of there. That’s not to say that then they’re getting this really great care (upon being arrested). Now, they’re going to jail and getting no health care. People are almost losing limbs out there because they are so afraid to access quality health care.”
“We will never treat or incarcerate our way out of an unregulated drug supply, ever,” Raville added.
Jason Vitello of the Colorado Criminal Justice Reform Coalition cited a study by the Pew Charitable Trust that claimed incarceration does not reduce drug use.
Vitello claimed that, since the 1970s, the country has spent more than $1 trillion on the “drug war,” and that, despite those dollars, “we are facing down an unprecedented overdose crisis, a highly unpredictable and dangerous street drug supply, and over 500,000 people incarcerated in the US on drug charges.”
“It’s time to reinvest our attention and civic resources from punishment to public welfare,” he said. “The bill diminishes the disconnection, criminalization and isolation experienced by an already marginalized group of individuals and communities, bringing them out of the shadows and into systems of care, because being alive is objectively healthier than being dead.”
Ellen Velez of the Adams County Health Department, which runs its own syringe exchange program, said the bill would allow for exchange programs to distribute materials other than syringes. She said people who participate in these programs, like Adams County’s, are five times more likely to enter treatment and reduce or stop drug use altogether.
“Our clients and our community are safer if they’re participating in a program like ours,” she said. “It’s vital that we meet the community where they’re at to provide the support and resources they need to keep them safe and alive.”
Supporters also cited medical experts, who say expired antagonists do not lose efficacy upon expiration and also have no adverse side effects.
Critics: Colorado should not enable drug use
While Democrats backed the measures, Republicans regarded the bill’s provisions as enabling drug use. Instead, they argued, the state should prioritize curtailing the flow of illicit drugs into Colorado.
They also said incarceration plays an important role.
Rep. Richard Holtorf, R- Akron, said that during his years on the Health and Human Services Committee, he has heard several accounts of former users saying incarceration is what got them clean.
“I cannot support a bill that doesn’t allow for those people that need perhaps to be incarcerated to stop the drug use to save their lives,” he said. “This gives them a pass and lets people break the law with respect to outdated pharmaceuticals. It also tells doctors not to report health data to the Department of Health openly in this bill, going against every practice in every other part of health care.”
“It is antithetical, it doesn’t make sense to me,” Holtorf said.
“I did not hear, ‘Let’s stop the drugs coming into our cities and to our state.’ Never heard that — and that is very important,” added Rep. Mary Bradfield, R- Colorado Springs. “How can we get the problem under control if we can’t stop the flow?”
The debate over how to curb drug use has consumed not Colorado and other parts of America, which have been grappling with the opioid epidemic in the last few years.
Nationally, the U.S. drug overdose death toll crossed 100,000 for the first time in 2021. In Denver, alone, 522 people died from drug overdoses last year, the most since tracking began in 1923, according to Denver’s Office of the Medical Examiner.
In Oregon, state lawmakers, facing public pressure amid a surge in overdose deaths, are preparing to vote on re-criminalization. Democrats, who hold the majority in Oregon’s statehouse, are pushing for a bill to make small-scale drug possession a low-level misdemeanor, punishable by up to 30 days in jail, with the opportunity to seek treatment instead of facing charges.
The proposed bill also carries harsher sentences for drug dealers, wider access to medication for opioid addiction, and expanded recovery and housing services along with drug prevention programs. Republican lawmakers, who insist the bill falls short, propose up to a year in jail for drug possession, with the option for treatment and probation in lieu of jail time.
Back in 2020, Oregon voters approved what’s known as Measure 110, under which the police, instead of arresting drug users, issue them $100 citations, along with a card that lists the number to a hotline for addiction treatment services, which they can call in exchange for help dismissing the citation. Those who simply ignore the citations face no legal ramifications, and state data shows only 4% of people who receive citations call the hotline.
The House Health and Human Services Committee next heard House Bill 1045, a 49-page measure that deals with substance treatment. Comprised of 27 sections, the omnibus bill, among other things, prohibits insurance carriers from requiring prior authorization for drugs used to treat substance abuse based on dosage amount; allows pharmacists to diagnose and prescribe medication for substance abuse; expands Medicaid coverage to patients in jails who were covered by the medical program prior to being incarcerated; and, establishes a grant program for facilities providing contingency management treatment.
DeGruy Kennedy, one of the bill’s sponsors, said authorizing pharmacists to prescribe medications, such as buprenorphine and methadone, offers a lot of potential impact, especially in small towns and rural areas, where accessibility to doctors’ offices and hospitals may be limited.
“If we give this authority to pharmacists, we’re gonna be able to get more people started on getting treatment earlier and then get them transitioned to an appropriate level of care,” deGruy Kennedy said.
Rep. Ryan Armagost, R- Berthoud, focused on the behavioral health diversion program pilot proposed in the bill. Drawing on his personal experience as a law enforcement officer, he said diversion programs are one of the most effective ways of avoiding population overflow in jails and prisons.
“People that are struggling with mental health, people that are struggling with addiction, they do not belong in jail,” Armagost said. “Giving them the chance for treatment to be a functioning member of society again, I think, is something that we need to be able to provide for people to prevent recidivism and to increase public safety and the overall quality of life in Colorado.”
Dr. Rob Valuck of the Colorado Consortium for Prescription Drug Abuse Prevention, said 60% of Coloradans in need of treatment for substance abuse are not receiving it. He said he believes the provision outlined in the bill could help decrease that number.
Dr. JK Costello, a physician who said he is also in a long-term recovery from drug use, highlighted Colorado’s need for more programs providing contingency management. This type of behavioral therapy involves rewarding or reinforcing positive changes in behavior, such as abstaining from drug use.
Costello said that in 2020, only one such program existed in the state. Now, there are 15 clinics offering contingency management, and the proposed grant could potentially lead to the establishment of even more.
“The contingency management grant program would put Colorado on the forefront of evidence-based treatment, leading to higher rates of abstinence, less incarceration, and lower rates of overdose,” Costello said.
Joanna Leonard, the director of pharmacy at the Colorado Coalition for the Homeless, said the bill’s removal of prior authorization for specific dosage amounts of medication accommodates for the increased opioid tolerance that she has seen in her patients who use fentanyl.
In 2002, the FDA set a prescribing limit of 24 milligrams per day for buprenorphine, a medication commonly used to treat opioid dependence. Consequently, most insurance companies only cover prescriptions for that dosage. However, Leonard said, due to the rise of more powerful substances, such as fentanyl, some users may require up to 32 milligrams of buprenorphine per day.
At least nine states have eliminated prescribing limits for buprenorphine altogether, and two have increased their limits to 32 milligrams per day.
Leonard also praised the initiative to eliminate prior authorization requirements for these medications, noting that obtaining such authorizations can often take hours or even days. This extended process poses a significant risk, she said, as it provides more than enough time for people struggling with drug use to change their mind about receiving treatment.
“When a patient has the motivation to address their substance use disorder and show up at the MAT (medication-assisted treatment) clinic to receive treatment, it is frustrating that they cannot get the actual medication in their hands until an hour or a few days later,” she said. “It may drive them to go back to the street and get fentanyl.”
Several committee members raised questions about the bill’s price tag of $6 million, but the sponsors said the fiscal impact would decrease significantly with the proposed amendments.
In total, sponsors introduced 12 amendments, addressing various aspects of the bill, including language reconfiguration and creating an avenue to pursue federal funding for fetal alcohol spectrum disorder treatment.
Holtorf expressed worries about the length of the bill and its numerous provisions, saying it’s “too big.”
“In half a decade of being here, I’ve never seen anything like this,” he said. “This is too much. It’s too big and it’s so confusing and fragmented that it’s evidenced just by the number of amendments that you’ve had to present to try to square this thing up and line it up. In my humble opinion, you could have five bills here.”
Rep. Ron Weinberg, R- Loveland, agreed, saying that, while he appreciates the bill’s efforts, he is concerned that the number of amendments means the bill isn’t quite ready to move forward.
DeGruy Kennedy acknowledged those points.
“Yes, this is a big bill,” he said. “Yes, this bill is trying to do a lot of different things to try to address our gaps in treatment in Colorado. We believe this will meaningfully increase access to treatment for people all across our state for a variety of different kinds of substance use disorders. Yes, it’s expensive, and we’re going to have to sort that out before we go to the appropriations committee, but for the time being, we believe that this policy is going to do a lot to help people in Colorado.”
The committee approved the bill — which was sponsored by Sens. Kyle Mullica, D- Northglenn, and Perry Will, R- New Castle — along partisan lines. Its next stop is the Finance Committee.
Read more at coloradopolitics.com