October 4, 2023
In 2023, state governments across the country passed legislation to address increasing rates of opioid overdose deaths. State legislatures have considered legislation on oversight of opioid litigation proceeds, expanded access to medications for opioid use disorder (MOUD), dissemination and decriminalization of drug paraphernalia, and enhanced sentencing for fentanyl possession and trafficking. This document explains trends in legislation signed into law in 2023. At the time of publication, state legislatures have adjourned in 43 states. For the states still in session, pending legislation is provided in the accompanying Addiction and Public Policy 2023 State Legislative Roundup.
Opioid Litigation
Multiple states and the District of Columbia passed legislation in the 2023 legislative sessions centered on dissemination of the proceeds from opioid litigation. Legislation passed this session established separate opioid litigation funds in several states, and clarified allowable uses. North Dakota, Florida, and West Virginia passed legislation establishing settlement advisory committees and/or board appointment criteria for individuals overseeing the allocation of opioid litigation funds. Some states amended previously passed opioid funding bills to revise the use of opioid litigation funds.
Medications for Opioid Use Disorder and Opioid Treatment Programs
Multiple states passed legislation this session expanding access to medications for opioid use disorder (MOUD) and laws relating to opioid treatment programs. Alabama repealed the Medication Assisted Treatment (MAT) of Opioid Use Act of 2019, a law restricting buprenorphine prescribing in the state. The new legislation allows for the more expansive federal rules to govern MOUD in Alabama. In other states, new legislation authorized pharmacists to prescribe and dispense medications for opioid use disorder and authorized narcotic treatment programs. Additionally, new provisions were enacted to prevent healthcare insurers from reviewing or denying coverage for certain medications, including MOUD. Other states amended existing laws to make MOUD and treatment programs more accessible.
Naloxone
Several states, including Virginia and Arkansas, passed legislation this session expanding access and distribution of naloxone, specifically in emergency departments and education facilities. New legislation authorized bystander possession and administration of naloxone. Additional legislation in many states, like Maine, required law enforcement and emergency responders to carry naloxone while on duty, and for facilities such as hospitals and schools to have naloxone available. Many states also prioritized community outreach and increased distribution efforts and accessibility. Pending legislation in California seeks to prohibit cost-sharing and ensure naloxone is a covered benefit under insurance.
Syringe Services Programs
A handful of states, including Utah and Virginia, passed legislation regarding syringe services programs this session. Roughly half made technical amendments to existing legislation, defining these programs. North Dakota authorized qualified entities to operate syringe exchange programs where medically appropriate and effective in reducing transmission of disease by injection.
Fentanyl Test Strips
Many states passed legislation authorizing the possession and use of fentanyl test strips, protecting Good Samaritans and people who use substances from prosecution for these test strips. Kansas and Mississippi both excluded fentanyl test strips from their definitions of drug paraphernalia. The Illinois legislature also passed legislation requiring schools to educate students on the dangers of fentanyl, and how to buy and use fentanyl test strips.
Fentanyl Penalties
Several states passed legislation this session to enhance criminal penalties relating to fentanyl, including establishing mandatory minimums for fentanyl-related offenses. Texas and Arkansas passed legislation creating the offense of drug-induced homicide. These state laws include a criminal penalty for an individual who delivers fentanyl that causes death. North Carolina also passed legislation to enhance sentences for drug induced homicide, and increased fines imposed for people convicted of trafficking certain substances. Pennsylvania legislation that would provide similar penalties is pending and would provide for the offense of fentanyl delivery resulting in death. Enhanced criminal penalties for delivery of fentanyl are criticized as undermining Good Samaritan laws.
Medications for Opioid Use Disorder in Jails and Prisons
A handful of states, including Pennsylvania and Washington, passed legislation expanding access to, requiring, or permitting treatment with MOUD in jails or prisons. Pennsylvania passed legislation that amended an existing pilot program, repealing some provisions and increasing requirements for facilities offering MOUD programs.
Withdrawal in Jails and Prisons
No legislation was introduced this session specifically addressing incarcerated people experiencing withdrawal from a substance while in custody.
Conclusions
State legislators are seeking to address unprecedented rates of overdose deaths by passing legislation to ensure opioid litigation proceeds are spent effectively; passing legislation that will enhance access to quality treatment; and improve access to harm reduction services. At the same time, some state legislative responses have increased criminal penalties relating to delivery of fentanyl that results in death, legislation which may undermine the effectiveness of Good Samaritan laws.