Big drug bill heads to governor's desk; has harsher penalties and limits most prescriptions for acute pain to 3 days

By Melissa Patrick

Kentucky Health News

Rep. Kim Moser
photo: LRC Public Information

A bill that would limit most painkiller prescriptions to a three-day supply for acute pain, and change how synthetic-opioid traffickers are prosecuted, flew through the legislative process in the final days of the 2017 General Assembly. It now awaits action from Gov. Matt Bevin.

House Bill 333, sponsored by Rep. Kim Moser, R-Taylor Mill, would limit painkiller prescriptions such as oxycodone and morphine to a three-day supply if prescribed for acute pain, but has a long list of exceptions such as chronic pain, terminal illness and severe trauma.

"We really want prescribers to stop and think before they write that prescription for 30 Percocet or Lortabs or any narcotic, to change the mindset that opioids are the first line of treatment for pain because it may not always be necessary," Moser said in a phone interview. She is director of the Northern Kentucky Office of Drug Control Policy.

"We know that we had 3.5 billion doses of opioids prescribed in Kentucky last year and that is enough for 79 pills per man, woman and child. That's huge," Moser said. "We also know that 80 percent of heroin addicts started with either a legitimate pain prescription or opioids in tablet form, some sort of stolen medication or diverted medication."

The bill also expands jail time for the illegal possession and importing of heroin, fentanyl, carfentanil and fentanyl derivatives; increases penalties for trafficking; creates a felony offense for those who misrepresent a controlled substance as a legitimate prescription drug; and adds heroin, fentanyl, carfentanil and fentanyl derivative trafficking to aggravated trafficking in a controlled substance.

The Senate made changes to the bill to increase penalties for heroin and fentanyl, and removed the provision that enabled addicts to avoid the increased penalties, sometimes called the "peddler distinction."

The bill now requires that any transfer of heroin, fentanyl, carfentanil and fentanyl derivative to another person is a Class C felony for a first offense, with a five- to 10-year sentence and no parole eligibility until half of the sentence is served. A second or subsequent offense would be considered a Class B felony, with a term of 10 to 20 years.

Currently, "An addict caught sharing under two grams of these drugs in this way would be charged with a Class D felony with a one- to five-year sentence, with parole eligibility after serving 20 percent of the sentence" for a first offense, Ashley Spalding writes for the Kentucky Center for Economic Policy.

Writing in opposition to the changes, Spalding says the amended version of HB 333 will "lock up more addicts for longer periods of time and be ineffective in addressing the state’s addiction problems, it would be very costly for the already overburdened criminal-justice system."

Spalding argues that the changes will cost money, adding to the $30 to $35 million estimate for a similar bill (Senate Bill 14) that was not heard in the House. Spalding said it will cost more because the estimate for SB 14 assumed those trafficking in amounts of under 2 grams could be paroled after serving 20 percent of their sentence.

Moser said that without this provision, the Senate wasn't able to get enough votes to pass the bill: "They wanted zero tolerance."

She added, "This was a tough compromise for me because I really believe that you need to be able to get help for the folks who are in the cycle of addiction and not just have them stuck in this revolving door of the criminal justice system," she said, adding that prosecutors will still have discretion to determine trafficking charges.

"The real danger that we've seen is the addition of fentanyl and carfentanil with the heroin, and that's what is killing people," Moser said. "And so that's why it was important for me to pass a bill that had the distinction for fentanyl and carfentanil in it."

She said Senate Republican leaders are committed to working with the criminal justice system to continue researching whether this is the best way to handle trafficking, and whether this is best for individuals stuck in the cycle of addiction.

The bill also adds fentanyl derivatives as a Schedule I drug, meaning they have no medical use, and allows drugs to be raised to higher schedules as needed. It has language that will result in better communication between the Cabinet for Health and Family Services, its Office of Inspector General, medical licensing boards and the state Office of Drug Control Policy about prescription-drug use in the state.

The bill also excludes cannabidoiol, a non-hallucinogenic marijuana extract, from the definition of marijuana under state law if the products are approved as a prescription medication by the U.S. Food and Drug Administration. 

The bill passed out of the House 96-1 on February 28. A month later, on the next to the last day of the session, around 11 p.m., it passed out of the Senate Judiciary Committee. And on March 30, the last day of the session, it passed out of the Senate 29-9 with some changes, which the House accepted by a vote of 80-6.

Mixed reviews in the Senate

Several Senate Democrats were frustrated that such an important bill was rushed through the Senate.

"This bill could have been discussed. It's got major policy components. We could have had testimony and heard from the stakeholders affected in a public forum with civil discourse and the ability to ask questions. We didn't have that for this bill and that pains me a bit," said Sen. Robin Webb, a lawyer from Grayson, who voted against the measure.

Webb said patients with legitimate pain problems who can't get legitimate treatment "are going to go to the street, and they are going to pursue illegal means. We've seen it. We see it in our communities. I hear it in my office from time to time. And then we are upping the penalties for these individuals, when some are driven [by] legitimate sources of pain remediation."

Senate Democratic Leader Ray Jones of Pikeville said he cast a "difficult" vote for the legislation because he wanted the fentanyl and carfentanil provisions, but he agreed with Webb and said he didn't like the three-day limit. He and several other lawmakers suggested that provision should have been in a separate bill.

"That ties the hands of doctors. Those decisions should be up to the physicians," said Jones, a lawyer. "If physicians follow the current law and current standards of care, they will be able to prescribe to meet patients needs without any concern of proliferation of drugs."

Sen. John Schickel, R-Union, applauded the bill. He said the Senate had tried to pass bills to increase trafficking penalties for heroin for the past six years, since the passage of a bill that reduced prison time for the state's low-risk, non-violent drug offenders, but he said they had all died in the House when it was led by Democrats.

"A lot has been said about treatment, and I believe in treatment, but we have to keep in mind that we are, at least the majority party is, the party of personal responsibility and where I come from, people are sick and tired of hearing excuses for people dealing in heroin. Killers, murderers dealing in heroin and then those same traffickers claiming to be victims. I'm sorry, they are not victims, they are criminals and they need to be punished," said Schickel, a retired law enforcement officer.

Republican Sen. Ralph Alvarado, a Winchester physician, said he could not have voted yes for the bill without the exceptions to the three-day rule for painkillers. He said guidelines for prescribing pain medication and other controlled substances are so stringent that he, like many other physicians, have chosen to not prescribe them, which has left many of his patients in a lurch.

However, Alvarado also said it's time to reduce the number of pills on the street, and for that to happen, physicians and patients must change how they think about pain and recognize that the goal might be comfort instead of being "absolutely pain free." He said to really decrease the number of pain pills prescribed, insurance companies must stop using pain evaluation as a condition of reimbursement.