Gov. Kelly says fentanyl tests strips will “save lives.” Will Kansas lawmakers listen?

Kansas Gov. Laura Kelly’s call to legalize fentanyl test strips during the State of the State address this week is reigniting a contentious fight after a previous effort to approve the strips collapsed over opposition from Kansas Senate Republicans.

The strips, relatively cheap at about $1 a piece, detect fentanyl in pills and other drugs, allowing individuals to avoid taking drugs laced with the often-deadly substance, a powerful synthetic opioid. All manner of illegal drugs are now regularly laced with fentanyl, a common method to boost their potency that dramatically raises the chance of a fatal overdose.

But the test strips are illegal under Kansas law, considered drug paraphernalia.

“We’ve debated this before. The reality is test strips save lives and money,” Kelly, a Democrat, told the Republican-controlled Legislature on Tuesday. “Let’s get a bill passed this session that decriminalizes these strips and prevents exposure to fentanyl in the first place – long before it kills more Kansans.”

Support for the test strips cuts across party lines as Kansas and the nation grapple with the influx of fentanyl. From 2005 to 2016, the number of drug overdose deaths in Kansas generally hovered between 240 and 330 per year, before beginning an annual climb that has rapidly accelerated in recent years.

Overdose deaths soared from 393 in 2019 to 679 in 2021, according to data from the Kansas Department of Health and Environment, with 347 of the deaths in 2021 attributable in part to synthetic opioids, which include fentanyl. Data for 2022 was not yet available.

The day-to-day consequences of fentanyl’s presence continue to play out across the Kansas City metro. On Wednesday, Kansas City, Kansas, police announced it seized more than $100,000 worth of fentanyl-laced counterfeit pills over the weekend; the department took about 150,000 pills in 2022. Forty fatal overdoses, most involving fentanyl, were reported in the city last year.

Across the state line, a 22-year-old Kansas City, Missouri, man was charged last week with possession of fentanyl with intent to distribute in federal court; prosecutors allege he was associated with three Belton teenagers who died from fentanyl overdoses last year.

An attempt to legalize the strips in Kansas stalled last spring after legislative negotiators removed the change from a drug-related package following objections from multiple Republican senators, even though the measure had support from House Republicans.

Sen. Kellie Warren, a Leawood Republican who at the time was running for state attorney general, said during a GOP caucus meeting at the time that the best warning of whether a drug has fentanyl is to not buy illegal drugs. Warren, speaking to other Senate Republicans, asked, “Where’s the personal accountability in this policy?”

Asked on Wednesday by a Star reporter whether she still remains opposed to legalizing test strips, Warren disputed the framing of the question. Warren said the measure last year hadn’t received a full hearing in the Senate Judiciary Committee, but Warren chairs the committee and allowed the legislation to die.

“We have seen an abuse of illegal drugs on a grand scale and clearly Kansans are hurting,” Warren said. “Last session, and anytime we’re considering a large change in drug policy in Kansas, it needs to be thoroughly vetted and thoroughly heard. That was not the case about the issue you’re asking about last session and I have not seen a bill about it this session.”

The Senate Judiciary Committee held a hearing on a bill to legalize fentanyl test strips on Feb. 1, 2022. But Warren suspended the hearing that day, citing time constraints, and the bill later died in committee.

Rep. Jason Probst, a Hutchinson Democrat who has championed legalizing test strips, expressed optimism that Kelly speaking about the issue could help create more momentum behind legalization this year. And, he said, since last spring awareness has grown about how the test strips can be a tool that saves lives.

“People have died in the last year, in my opinion, because we didn’t get that done,” Probst said.

Rep. Brenda Landwehr, a Wichita Republican who chairs the House Health and Human Services Committee, said she expected a bill would be introduced next week that includes legalization of fentanyl testing. The tests, she said, wouldn’t solve the fentanyl crisis but it would help individuals.

“If they’re taking the drugs now, they’re gonna continue taking the drugs. We just hope we save lives,” she said.

As of September, fentanyl test strips remained illegal in 19 states, according to the health news site STAT, even as the federal government has advocated their use. In April 2021, Centers for Disease Control and Prevention and the Substance Abuse and Mental Health Services Administration announced that federal funds could be used to purchase test strips.

Probst dismissed the idea that test strips could somehow facilitate drug use —a criticism inherent in the comments of Warren and other lawmakers who have voiced objections. Kansas is attempting to fight drug-related problems in 2023 with drug laws grounded in 1980s efforts to fight crack cocaine, he said.

“Handing someone fentanyl testing strips and educating them on the dangers of fentanyl and providing them the tools to protect themselves for the drugs that they’re going to be using anyway — there’s nothing about fentanyl testing strips that helps a person use drugs. This keeps people alive,” Probst said.

Wichita decriminalized test strips but Kansas law impedes access

Kansas’ largest city hasn’t waited for the Legislature to act. In September, the Wichita City Council voted to decriminalize marijuana possession. The council also decriminalized test strips as part of that vote.

While the change means Wichita police officers no longer write citations for having test strips, it’s effectively a half measure. Individuals can have the strips under the local ordinance, but social service agencies and government agencies still won’t distribute them as long as they remain illegal under state law.

“Our folks still have a problem getting access to fentanyl test strips, which means that if you go online and you wanted to buy fentanyl test strips, they will stop you because Kansas has an overarching law against it,” Wichita Mayor Brandon Whipple said in a brief interview.

Whipple, a former Democratic state legislator, said decriminalizing test strips is an easy step forward “when you think about saving lives and arming our citizens with the tools they need to ensure they don’t accidentally ingest this deadly toxic opioid.”

Researchers have found that people who use the strips and find fentanyl in their drugs will take safety measures, such as making sure someone is with them when they use or having naloxone, a medication used to stop an opioid overdose, close by.

“This tool might be lifesaving for the teenager experimenting for the first time, the individual in the throes of a severe opioid use disorder, the concert-goer looking for a trip, the person using a preferred substance obtained from a new source, or the individual years into recovery,” researchers from Weill Cornell Medicine in New York City wrote in 2021 in Health Affairs journal.

A pilot study conducted by researchers at Johns Hopkins Bloomberg School of Public Health and Brown University in 2018 and 2019 found that test strips reduced the risk of overdose among female sex workers in Baltimore.

The study involved only about 100 people, but of the 68 people who completed a follow-up survey, 69% engaged in “harm reduction behaviors” after using test strips, such as asking someone to check on them or using a smaller amount of drugs.

Kansas’ top law enforcement official, Republican state Attorney General Kris Kobach, said he would follow the lead of law enforcement on test strips. He said he is looking for data on whether test strips work.

“Obviously, the objective here is to save lives, right? The law enforcement consequence is that you potentially make it easier for those selling and buying forbidden drugs, including opioids … to purchase them and to advertise them as being fentanyl-free,” Kobach told reporters on Thursday.

Kansas’ major law enforcement groups are remaining neutral on legalizing test strips. Ed Klumpp, a lobbyist for associations of police chiefs, sheriffs and peace officers, said the main concern is the possibility lawmakers will eventually go further and create “safe havens” for taking drugs or establish programs to provide needles.

Needle exchange programs, which allow individuals to deposit used syringes and receive clean ones, are illegal in Kansas and Missouri. Exchanges are operated in Kansas City and St. Louis, however.

“We feel like this is kind of the start of that process,” Klumpp said. “But at the same time, we recognize how serious this problem is.”

The Star’s Lisa Gutierrez contributed reporting