Kansas Law Enforcement Fentanyl Response

Fentanyl-related controlled substances (fentanyl) are powerful synthetic, or lab-made, opioids. Fentanyl has been approved by the U.S. Food and Drug Administration to treat severe pain related to surgery or complex conditions. However, over the past decade, fentanyl and other illegally made synthetic opioids have been increasingly found in the drug supply and have contributed to a dramatic rise in drug overdose deaths (via KDHE Drug Overdose Data Dashboard, https://www.kdhe.ks.gov/1309/Overdose-Data-Dashboard).

Fentanyl response can generally be broken down into three categories: prevention, treatment, and harm reduction. This article summarizes legislation passed by the Kansas Legislature since 2020 to address these areas.

Kansas Fights Addiction Act

The Kansas Fights Addiction Act was enacted in 2021(KSA 2023 Supp. 75-775 through 75-781). The Act established the Kansas Fights Addiction Fund and the Municipalities Fight Addiction Fund. These funds are the depositories for all moneys received by the State for opioid litigation in which the Attorney General is involved. This money is awarded as grants by the Kansas Fights Addiction Grant Review Board—also established by the Act—taking into account substance abuse prevention, reduction, treatment, or mitigation strategies. In calendar year 2023, $10.1 million was awarded from the first two funding opportunities, focusing on treatment and prevention. The fourth round of requests for proposals opened on August 5, 2024.

Prevention

Joint Fentanyl Impact Team

In 2023, the Legislature appropriated $2.9 million from the State General Fund (SGF) for the Kansas Bureau of Investigation’s (KBI) Surge Initiative for FY 2024. This initiative included funding for investigations of fentanyl drug trafficking operations. This initiative evolved into what the agency refers to now as the Fight Against Fentanyl, the special operations division within KBI dedicated specifically to the Joint Fentanyl Impact Team (JFIT). The JFIT is a collaboration between KBI, Kansas Highway Patrol, local law enforcement, Homeland Security Investigations, and the Drug Enforcement Administration. The objective of the JFIT is to identify and disrupt fentanyl trafficking and distribution networks.

In 2024, the Legislature added 5.0 full-time equivalent (FTE) positions to the KBI for the JFIT for FY 2024, supported with funding approved during the 2023 Legislative Session. For FY 2025, the Legislature appropriated $6.9 million SGF and added 30.0 FTE positions for KBI’s Fight Against Fentanyl effort. These positions include forensic scientists, analysts, special agents, and support staff.

Increased Penalties

2023 SB 174, among other things, increases penalties for crimes related to fentanyl. This includes increasing unlawful manufacturing of fentanyl to a drug severity level 1 felony from a drug severity level 2 felony. A special sentencing rule was established for the crime of manufacturing material containing any quantity of fentanyl; the rule includes presumptive imprisonment and two times the maximum duration of the presumptive sentence term. The sentence is not subject to appeal. Another special sentencing rule with the same penalty was added for the crime of manufacturing or distributing a controlled substance if the appearance or packaging was likely to be attractive to minors.

2024 SB 414, among other things, amends the penalties for unlawful distribution of a controlled substance to specify the penalty for the crime with respect to material containing any quantity of fentanyl to be the same as for material containing any quantity of heroin or methamphetamine. The bill also specifies penalties for instances where fentanyl is measured by a dosage unit. [Note: Dosage unit is a discrete unit including, but not limited to, a pill, capsule, microdot, or a liquid form not distributed by weight.] Additionally, the bill adds fentanyl to the list of drugs for which knowingly causing or permitting a child to be in an environment when the drug is present constitutes the crime of aggravated endangering a child.

Treatment

2023 Senate Sub. for HB 2010 expands eligibility for certain offenders for the non-prison sanction of placement in a certified drug abuse treatment program. Defendants convicted of a nonperson severity level 7, 8, 9, or 10 felony with a criminal history score of C through I are eligible to participate in a certified drug abuse treatment program, so long as the defendant has no prior convictions of manufacturing, cultivating, or distributing a controlled substance or unlawful acts involving proceeds from drug crimes. Defendants convicted of the same nonperson severity level felonies with a criminal history score of A or B and no prior convictions of manufacturing, cultivating, or distributing a controlled substance or unlawful acts involving process from drug crimes are eligible to participate in a certified drug abuse treatment program, provided the person felonies in the defendant’s history are nondrug severity level 8 or lower, and the court finds the safety of the public will not be jeopardized by placement of the defendant in such a program.

Harm Reduction

2023 SB 174, referenced above, also removes tests used to detect the presence of fentanyl from the definition of “drug paraphernalia” in the Kansas Criminal Code.

2024 House Sub. for SB 419 provides controlled substances “Good Samaritan” protections to those who, due to the use of a controlled substance, are seeking medical attention on their own behalf, seeking medical attention on behalf of another, or rendering medical aid to someone in need. Such a person must fully cooperate with law enforcement and emergency medical service (EMS) personnel while medical assistance is being provided, remain at the scene with the person needing medical assistance until EMS personnel and law enforcement officers arrive, and provide their full name and any other information necessary to provide medical assistance requested by law enforcement or EMS personnel. The bill provides eligible persons immunity from criminal prosecution for the crimes of possession of a controlled substance or possession with intent to use drug paraphernalia to introduce a controlled substance into the human body.