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Legislative update - Fentanyl testing strips and the last day of the 2022 session

Today is expected to be the last day of the 2022 legislative session.

One of the last bills I expect we’ll take up is the conference committee report on HB2540 - an update to the list of scheduled drugs. This bill previously contained a provision to decriminalize fentanyl testing strips by removing them from the definition of drug paraphernalia. That definition was written in 1981 - well before fentanyl was a thought - and it hasn’t been updated since.

Meanwhile, the CDC reported that more than 100,000 people died from drug overdoses in the U.S., most of them from fentanyl. Kansas has seen a 600 percent increase in deaths from synthetic opioids from 2011 to 2020.

Today, I plan to make a motion to send this bill back to conference committee to revisit fentanyl testing strips. I’ve been told that Senate leadership will refuse to run the bill if it’s sent back, and that we could lose the bill altogether - and it does contain a useful provision to allow prescription medication for epilepsy. (Though in my research, it is simply a pharmaceutical-grade version of CBD found in marijuana. So it seems we could’ve addressed that concern by legalizing medical marijuana - another bill that the Senate has held hostage).

Included here is the email I’ve sent out to all legislators, including the educational packet I provided.

Updated Fentanyl Packet For Legislature 3.58MB ∙ PDF File Read now

Colleagues –

I’ve attached to this email a number of statements, research, and testimony in support of eliminating fentanyl testing strips from the definition of drug paraphernalia. This statute is in desperate need of updating – it was written 41 years ago, in 1981, long before fentanyl was a thought or a pressing concern in our communities.

If the CCR on HB2540 comes before the House, I intend to make a motion to send it back to conference committee to reconsider this provision on FTS, which was referred back to conference to have to provision removed, due to the protestations of a few Senators. I have been told that if the CCR returns to conference, Senate leadership will refuse to run the bill and other updating to Kansas law – specifically related to the rescheduling of medication helpful to patients with epilepsy - will be lost for the session. I want to be forthcoming about that risk, but I also want to preserve our right in our elected roles to advocate for Kansans who can’t afford to secure the traditional forms of legislative advocacy in Topeka.

It is unfortunate that a handful of people have decided to force us to navigate a sort of hierarchy of good, and in effect sacrifice good policy for one group to realize good policy for another group. It is also, in my opinion, not the sort of representation Kansans expect or deserve. I think most Kansans could recognize and support the idea of doing two good things at once. And they surely wouldn’t appreciate us pitting two vulnerable groups against each other.

Kansas has the second fastest growing overdose death rate in the country – and most of those are due to the unknowing consumption of fentanyl. Removing FTS from the definition of paraphernalia can, and will, save lives in the coming year. Fentanyl is indiscriminate in who it kills. Of particular concern are those between the ages of 15-24, who are most likely to suffer a fatal overdose due to a lack of tolerance for opioids. Other states, including Georgia, Tennessee, Wisconsin, Alabama, Ohio, and Alaska have taken steps in the past couple of years to allow the use of fentanyl testing strips.

If you read nothing else in this packet, please take time to read the letter from Libby Davis, the mother of a 16-year-old boy who died after taking what he thought was half of a prescription pill. This is happening far too often in our state, and we have an opportunity to intervene, to take a small and simple step to save lives. Doing nothing, or waiting another year while Kansans die, feels unacceptable.

I’ve included a fact sheet that includes valuable facts about fentanyl overdoses and the value of decriminalizing FTS. Additionally, I’ve included several papers on the use of FTS, letters from experts in the treatment field, and a small collection of recent reporting on fentanyl. I’ve also gathered all the testimony related to FTS that was submitted to the Senate Judiciary committee, but unfortunately wasn’t heard because the chair adjourned the hearing on Feb. 1 before discussion on FTS could begin.

Please take some time to review the information I’ve included with this email. I hope that you’ll find it informative and helpful in understanding the imminent crisis that faces our state – and why I feel our immediate action is so important. If you have any questions, please feel free to reach out to me.


Jason Probst


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