Update: On May 11, Gov. Laura Kelly signed Senate Bill 174 into law. The bill decriminalizes fentanyl test strips. Read more here.
On Monday, the Kansas Legislature introduced a bill that, if passed, would decriminalize a tool used to test drugs for the presence of fentanyl. House Bill 2328 was introduced with little fanfare in a quiet exchange of no longer than 90 seconds, midway through an otherwise routine hearing of the House Corrections and Juvenile Justice Committee.
Though the bill’s introduction was ordinary, mundane even, the problem it aims to address is anything but.
Fentanyl is a potent synthetic opioid that is killing Americans — and Kansans — in record numbers.
Yet despite growing desperation and pleas for solutions from people grieving losses to fentanyl deaths, the Kansas Legislature has shown little urgency in responding to the fentanyl crisis.
Not since 2017 has the legislature enacted a significant fentanyl-related policy. That was the year the legislature passed a bill allowing first responders to carry naloxone, a medication that reverses opioid overdose, and also made it available to the public without a prescription. Monday’s bill introduction marks the third time in three years that lawmakers have considered a measure to decriminalize fentanyl test strips.
Kansas lawmakers have resisted passing laws that addiction experts say save lives. The objection is based on a false belief that attempts to make drug use safer is the same as promoting it.
Kansas is one of only a few states that have not adopted popular harm-reduction policies like decriminalizing fentanyl test strips and protecting people who report overdoses from prosecution. As even staunchly conservative politicians like Texas Gov. Greg Abbott have warmed to harm reduction, the number of states supporting such policies continues to grow.
Kansas lawmakers justify their inaction with false assumptions that people who don’t want to die from drug overdose should simply use willpower to stop using drugs. This belief is in direct conflict with information presented in state-commissioned reports prepared by local experts and harm reduction advocates.
“I wish (abstaining from drugs) worked (for everyone), but it doesn’t. It clearly does not work,” said Ngoc Vuong, a doctoral student studying community psychology at Wichita State University, who also works with harm reduction services for people with opioid use disorders in Wichita. “Otherwise, we would have solved this opioid epidemic a long, long time ago.”
While lawmakers argue, Kansans continue to die. Between 2017, when the naloxone law was passed, and 2021, the most recent year there is data, more than 2,200 Kansans died from drug overdose. Nearly one-third of those deaths involved synthetic opioids like fentanyl.
Harm reduction and misinformation
Practitioners who treat people with substance use disorders say that policies falling under the umbrella of harm reduction are effective at saving lives and treating addiction. These policies help people who use drugs stay alive long enough to access treatment services.
“In an ideal world, you wouldn’t have folks dying from overdoses, or getting HIV or hepatitis C or any other blood-borne infectious disease from drug use, you wouldn’t have folks getting substance use disorders. But this is not an ideal world,” Vuong said. “Harm reduction is as much about being compassionate as it is about being realistic.”
These programs face perceptual barriers, however, rooted in widely believed falsehoods about the reasons people use drugs and where the drugs come from.
Critics of harm reduction policies often embrace a disproven belief that substance use disorders are a matter of choice, morality or character, rather than a physiological dependence.
Gov. Laura Kelly tried to debunk this during her annual State of the State address to the Kansas Legislature last month: “Drug addiction is a disease, not a moral failing. Which means we need to change the way we treat it,” Kelly said. In her speech, Kelly publicly endorsed expanded naloxone availability and use of fentanyl test strips.
Instead of harm reduction, some policymakers favor a punitive response to drug misuse, relying on law enforcement measures over treatment. They argue that stricter punishments will change drug-use behavior. But those working directly with people with substance use disorders say deaths from opioid overdose continue to rise even with additional enforcement measures.
“We’ve proven for years, we’re not going to arrest ourselves out of this problem,” said Sedgwick County Sheriff Jeff Easter.
Increasingly, law enforcement agencies want to move away from enforcement-only strategies. The Police Assisted Addiction and Recovery Initiative, or PAARI, is a national alliance that trains police departments to respond to opioid-related incidents by referring people to services that treat substance use disorders, rather than arresting them. The idea is to reduce the demand for fentanyl. The Wichita Police Department is the only Kansas law enforcement agency listed as a member on PAARI’s website.
The law enforcement response to fentanyl is also impacted by fear and uncertainty around fentanyl, which has grown so quickly as a public threat that education efforts struggle to keep pace. Meanwhile, misinformation about fentanyl has spread rapidly and unchecked on social media, including falsehoods about first responders overdosing on the job after simply touching or breathing near fentanyl. According to two professional associations representing toxicologists, it’s impossible to breathe in enough airborne fentanyl particles or absorb enough fentanyl through the skin to overdose.
How fentanyl enters the United States is also a topic of misconceptions used to frame the issue as related to illegal immigration. Former President Donald Trump used assertions about Mexican drug cartels to justify building a wall along the U.S.-Mexican border. In Idaho, Gov. Brad Little used fentanyl deaths to justify a plan to send Idaho state police to Arizona to assist with border enforcement.
Fentanyl actually comes through legal border crossings in Mexico, making the trafficking a problem of legal immigration.
How does Kansas move forward?
Instead of allowing falsehoods, stigmas and stereotypes about drug use to drive policy decisions, practitioners like Vuong say it’s more productive to be empathetic towards those with substance use disorders.
“Fundamentally, we have to realize that each and every person has a right to dignity and to respect. We have to realize the innate humanity and personhood of each and every person,” Vuong said. “That idea of small wins, of incrementalism, of meeting people where they’re at. We have to look at alternatives to the criminalization and stigmatization of drug use.”
But that hasn’t yet happened in Kansas, yet.
A Beacon analysis of state-level harm reduction laws nationwide shows that among four policies recommended by local and national advocates that could save the lives of people who use fentanyl, Kansas has only adopted one: making naloxone available without a prescription. Kansas is the only state that hasn’t adopted any of the other three, which include decriminalizing fentanyl test strips, providing protections for “good Samaritan” bystanders assisting overdose victims and legalizing needle-exchange programs.
Naloxone is available, but is it accessible?
Kansas law allows people access to naloxone, a medication also known by the brand name Narcan, which reverses opioid overdose. The law protects those who prescribe, dispense and administer naloxone from liability if something goes wrong. But even with legal access to naloxone — all 50 states have some version of a naloxone access law — synthetic opioid overdose deaths in Kansas rose more than tenfold since the law was enacted, because making naloxone available isn’t the same as making it easily accessible.
Passed in 2017, the Kansas naloxone law allows emergency medical personnel to administer naloxone to those who show signs of overdose. It allows police to carry naloxone, but does not require it. Statewide data is not available on how many law enforcement departments across Kansas have their officers carry naloxone. Anecdotally, Easter said that he believes most sheriff’s offices across the state provide naloxone in patrol vehicles.
The law also allows — but does not mandate — pharmacists to dispense naloxone without a prescription to people who ask for it. But not all pharmacists dispense naloxone — only around one-third of Kansas pharmacists have signed up to do so, according to data from the Kansas Board of Pharmacy. Those pharmacists work at fewer than half of all pharmacies across the state. A list of pharmacies with a pharmacist on staff who may dispense naloxone is available on the Kansas Board of Pharmacy’s website.
While the law allows naloxone to be prescribed, it doesn’t do anything about the cost. A two-dose package of naloxone nasal spray can cost as much as $120 without insurance, though drug discount programs can halve that cost. The state contracts with one nonprofit organization — Developing Caring Communities Committed to Action, or DCCCA — to provide free naloxone and harm reduction training to anyone who requests it, but availability depends on funding and supply.
The most affordable way to access naloxone, however, isn’t the most user-friendly. While most people associate naloxone with nasal spray, Vuong said that it’s often cost-prohibitive for cash-strapped harm reduction service providers, and the intramuscular injection formulation is much less expensive and more accessible. But Vuong said that the stigma associated with needles can be a barrier to getting people to adopt it.
“With intramuscular naloxone, some people are primed to automatically equate the syringes and needles with injection drug use,” Vuong said, even though the needles aren’t meant for intravenous injections. “For some people, the intramuscular naloxone kits can be triggering, especially for people in recovery, being reminded of syringes and those needles.”
Fentanyl test strips: Drug paraphernalia or lifesaver?
Fentanyl test strips are considered drug paraphernalia in 17 states, including Kansas, and to be in possession of them is a crime under any circumstance. A growing number of states are decriminalizing them, based on advice from harm reduction excerpts who say that fentanyl test strips reduce deaths from accidental fentanyl overdose.
In states that have not decriminalized fentanyl test strips, local law enforcement agencies and municipalities have some leeway in deciding how — or whether — to enforce those bans.
Sheriff Easter said that he stopped enforcing the ban on fentanyl test strips because the drugs he most often sees teenagers experiment with — prescription pills like Percocet, Adderall or Xanax — are the ones that are most often counterfeit and laced with fentanyl.
“I don’t support facilitating someone’s drug habit,” Easter said. “However, when it comes to fentanyl and these kids that are getting into it, if that’s something that the parents want to provide them with, if it could help save their lives, then I do understand.”
But as long as fentanyl test strips remain illegal in Kansas, people can’t easily access them — drugstores won’t carry them and mail-order services like Amazon won’t ship them here. Decriminalizing them would take an act of the legislature, which has so far refused to do so.
The holdup appears to be the Kansas Senate. The state House of Representatives voted to decriminalize fentanyl test strips in both 2021 and 2022, but each year, the effort stalled in the Senate. In 2021, the bill was never brought out of Senate committee and was allowed to die. In 2022, Republican state senators stripped the provision from a bill they later passed. In removing the provision, state senators repeated the erroneous claim that the use of fentanyl test strips makes drug use more likely.
Sen. Kellie Warren, R-Leawood, said that test strips would allow people who use drugs to avoid accountability for their crimes, reported the Kansas Reflector. “The best warning to figure out whether your drug might have fentanyl in it is, you know, don’t buy the illegal drugs,” Warren said. When The Kansas City Star recently asked about those comments, Warren walked back her opposition, without committing to a position.
Gov. Laura Kelly publicly voiced support for decriminalizing fentanyl test strips for the first time during her annual State of the State address in January.
The strips are intended to test urine for the presence of fentanyl, but are at least 96% effective at detecting fentanyl in street drugs diluted in water. People who overdose on fentanyl often do not know it is present in whatever they are taking. Harm reduction advocates say that testing strips can help people who use drugs know what they are taking and make safer decisions based on that knowledge.
Studies have shown that when using the test strips, people either decide against using drugs containing fentanyl entirely, or use them in less risky ways, like using smaller amounts or using in the presence of someone who can help if they accidentally overdose.
Outside of Kansas, conservative politicians are growing more vocal in their support of policies that would decriminalize fentanyl test strips, including Texas Gov. Greg Abbott. In 2022 alone, 11 states decriminalized fentanyl test strips, among them Republican strongholds like Alabama and Louisiana.
Of the 17 states where fentanyl test strips were still illegal as of January 2023, 13 had introduced legislation in the first month of the year that would exempt the strips from the state’s definition of drug paraphernalia.
Kansas is the 14th — and most recent — state so far this year to introduce legislation to decriminalize fentanyl test strips.
Kansas doesn’t protect good Samaritan bystanders
Kansas is one of only two states nationwide that do not have a law protecting bystanders who seek help for someone experiencing an overdose.
Known as good Samaritan laws, the idea is that bystanders will be more willing to call emergency services for an overdose if they know they won’t be arrested or prosecuted for their own drug-related crimes, like possession. Specific protections vary state-to-state, but nearly all offer protection from prosecution for possession charges.
States with good Samaritan laws have lower rates of opioid-related overdose deaths, a federal government report found. The report also found that the more people know about the laws, the more likely they are to call 911 if they see someone overdosing.
Easter sees the benefit of a good Samaritan law, but said he would need more information before throwing his full support behind a proposal. “The fact of the matter is, we want (a bystander) to call 911 if somebody is not breathing and maybe dying,” he said, but said his support would depend on circumstances, for example, if the bystander who called for help had a large amount of drugs and responding officers suspected they were distributing.
Kansas isn’t entirely averse to good Samaritan laws — the state has them on the books for other interventions. A law protecting bystanders who break into a hot vehicle if a child or pet is trapped inside was enacted in 2018. At that time, around 37 children died annually from being trapped in a hot vehicle in the United States, according to news reports.
Kansas leaders also oppose needle exchanges
Kansas also lags the nation in harm-reduction efforts around needle exchanges, and elected leaders are vocal in their opposition.
Syringe service programs such as needle exchanges were started to help decrease the spread of blood-borne illnesses like hepatitis C or HIV by providing sterile supplies to people who use drugs. The programs have shown promise in reducing overdose deaths among people who inject drugs as well.
Needle exchange programs can lead drug users toward harm reduction services and treatment programs. In states where needle exchange programs are allowed to operate, nearly 75% require service providers to offer referrals for treatment of substance use disorders. Of those that aren’t required to provide treatment referrals, most do so anyway.
“These needle exchange programs are one-stop shops, where there are so many other services, including treatment, recovery … naloxone, fentanyl test strips,” Vuong said. “For a lot of injection drug users, these syringe service programs are much less stigmatizing, much more accessible and much more compassionate” than other programs.
People who participate in these programs are five times more likely to enter treatment programs than those who don’t, public health researchers have found. Programs often provide tools like fentanyl test strips and naloxone along with sterile needles, and research shows that participants use these tools — and that they save lives.
Even so, paraphernalia laws in Kansas prohibit syringe service programs, and Kansas is one of seven states that have no program currently operating.
Opponents to needle exchange programs — including Easter, a significant portion of Kansas’ law enforcement community and many Kansas lawmakers — say that providing supplies like needles increases drug use and enables crime.
“It’s not a good thing for law enforcement to support somebody’s drug habit,” Easter said. “I see nothing good out of the needle exchange programs at all.”
But research shows that the opposite is true — that illegal drug use decreases with participation in these programs.
Community health advocates like Vuong have also said that a one-size-fits-all approach to substance use disorders is unrealistic. “In this effort to address the opioid epidemic, and really any substance-related harm, all options have to be on the table,” Vuong said.
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