The legislature finds that substance use disorder is among the only health conditions for which a person can be arrested for displaying symptoms. People use drugs to escape the painful reality of their lives and circumstances, including trauma that has never had a chance to heal. Causing more hurt through the trauma of incarceration will not produce a willingness to change, only more pain to numb. Arrest and incarceration do not treat the root causes of substance use disorder. Treating substance abuse disorder like a crime through arrests and incarceration further disrupts and destabilizes the lives of these individuals. Incarceration removes access to insurance and behavioral health services, places people with opioid use disorder at extraordinary risk of overdose upon release, and creates criminal records that erect long-term barriers to education, housing, and employment, all of which undermine efforts to achieve and maintain recovery. The diagnostic criteria for substance use disorder includes continued use despite negative consequences. Therefore, it is implausible that additional negative consequences will lead to a cessation of use.
The legislature also finds that substance use disorder is a treatable brain disease from which people recover. Based on surveys conducted at syringe service programs, the vast majority of people who are using drugs want to reduce or stop their use. The barrier to these individuals engaging in treatment is not an absence of pain, but an absence of hope. When people in active substance use disorder are offered meaningful, person-centered support and interventions from a trusted source, such as a peer recovery coach, they are very likely to accept that support. If recovery support services, such as housing, education, employment pathways, community connection, and peer support are available during and after treatment, long-term, sustained recovery is not only possible, but probable.
Therefore, the legislature intends to develop a robust system to provide rapid access to evidence-based and innovative substance use treatment and comprehensive recovery support services in lieu of criminal penalties for individuals in possession of drugs.
The authority shall establish a substance use recovery services plan to implement measures to assist persons with substance use disorder in accessing treatment and recovery support services that are low-barrier, person-centered, informed by people with lived experience, and culturally and linguistically appropriate. The plan must articulate the manner in which continual, rapid, and widespread access to a comprehensive continuum of care must be provided to all persons with substance use disorder regardless of the point at which they present within the continuum of care.
The plan must consider the following: The manner in which persons with substance use disorder currently access and interact with the behavioral health system; the points of intersection that persons with substance use disorder have with the health care, criminal, legal, and child welfare systems, including emergency departments, syringe service programs, law enforcement, correctional facilities, and dependency court; and the various locations in which persons with untreated substance use disorder congregate including homeless encampments, motels, and casinos.
The plan must:
Anticipate the decriminalization of personal use amounts of controlled substances, counterfeit substances, and legend drugs known to be used by people for recreational or nonmedical and nonprescribed purposes as provided in section 5 of this act;
Include potential new community-based care access points, including the safe station model in partnership with fire departments, and strategic grant making to community organizations to educate the public and systematically disrupt and dismantle stigma and prejudice against persons with substance use disorder by improving public understanding and promoting hope;
Include creative mechanisms for real time, peer-driven, noncoercive outreach and engagement to individuals in active substance use disorder across all settings and develop measures to enhance the effectiveness of and opportunities for intervention across new and existing points of contact with this population; and
Support diversion to community-based care for individuals who may face criminal consequences for other drug-related law violations, but for whom it is evident that a response that addresses and attends to the underlying needs and social determinants of health may be more effective.
The plan and related rules adopted by the authority must include the following substance use treatment and recovery services, which must be available in or accessible by all jurisdictions: Field-based outreach and engagement; peer recovery support services; intensive case management; substance use disorder treatment, including evidence-based treatment, promising practices, and innovative approaches; and recovery support services including housing, job training, and placement services. These services must be equitably distributed across urban and rural settings and, if possible, made available on demand through 24 hour, seven days a week peer recovery coach response, behavioral health triage centers, or other innovative rapid response models. These services must, at a minimum, incorporate the following principles: Low barrier to entry and reentry; improve the health and safety of the individual; reduce the harm of substance use and related activity for the public; integrated and coordinated services; incorporate structural competency and antiracism; noncoercive methods of retaining people in treatment and recovery services, including contingency management; consideration of the unique needs of rural communities; and services that increase social determinants of health.
In developing the plan, the authority shall strive to adopt and implement the recommendations of the substance use recovery services advisory committee established in section 3 of this act. Where adoption and implementation of recommendations are infeasible, the authority shall notify the advisory committee and request refinement or modification of recommendations for implementation.
The authority must submit the substance use recovery services plan to the governor and the legislature by December 1, 2021. After submitting the plan, the authority shall adopt rules and enter into contracts with providers to implement the plan by December 1, 2022. In addition to seeking public comment under chapter 34.05 RCW, the authority must adopt rules in accordance with the recommendations of the substance use recovery services advisory committee as provided in subsection (5) of this section. The rules must be informed by existing diversion models that the authority administers in multiple jurisdictions in the state.
The authority must submit a readiness report to the governor and the legislature by November 1, 2022, that indicates progress on the substance use disorder continuum of care, including availability of outreach, treatment, and recovery support services, as well as system preparedness for the decriminalization policies in sections 6 through 11 of this act to take effect.
In consultation with the substance use recovery services advisory committee, the authority must submit a report on the implementation of the substance use recovery services plan to the appropriate committees of the legislature and governor by December 1st of each year, beginning in 2022.
For the purposes of this section, "recovery support services" means a collection of nontreatment resources that sustain long-term recovery from substance use disorder, including recovery housing, employment and education supports, peer recovery coaching, family education, technological recovery supports, transportation and child care assistance to facilitate treatment participation and early recovery, and social connectedness.
The authority shall establish the substance use recovery services advisory committee to advise the authority in the development and implementation of the substance use recovery services plan under section 2 of this act.
The authority must, in consultation with the University of Washington department of psychiatry and behavioral sciences and an organization that represents the interests of people who have been directly impacted by substance use and the criminal legal system, appoint members to the advisory committee who have relevant background related to the needs of persons with substance use disorder. The membership of the advisory committee must include, but is not limited to, experts in the etiology and stabilization of substance use disorders, including expertise in medication-assisted treatment and other innovative medication therapies; experts in mental health and trauma and their comorbidity with substance use disorders; people who are currently using controlled substances outside the legal authority of prescription or valid practitioner order; experts in the relationship between social determinant of health, including housing and substance use disorder; experts in drug user health and harm reduction; representatives of city and county governments; a representative of urban police chiefs; a representative of rural county sheriffs; a representative of the interests of rural communities; a representative of fire chiefs; experts in peer support services; experts in substance use disorder recovery support services; experts in diversion from the criminal legal system to community-based care for people with complex behavioral health needs; experts in reducing racial disparity in exposure to the criminal legal system; an academic researcher with an expertise in drug policy and program evaluation; a substance use disorder professional; a representative of public defenders; a representative of prosecutors; a representative of the criminal justice training commission; a nongovernmental immigration attorney with expertise in the immigration consequences of drug possession and use crimes and findings of substance use disorder; recovery housing providers; low-barrier housing providers; representatives of racial justice organizations, including organizations promoting antiracism and equity in health care; a representative of a local health jurisdiction with expertise in overdose prevention and harm reduction; representatives of the interests of tribes; at least three adults in recovery from substance use disorder, including individuals with previous contact with the criminal legal system due to substance use; at least three youth in recovery from substance use disorder, including youth with previous criminal legal system contact due to substance use; and at least three family members of persons with substance use disorder. The advisory committee shall be reflective of the community of individuals living with substance use disorder, including people who are Black, indigenous, and people of color, and individuals who can represent the unique needs of rural communities.
The advisory committee must make recommendations and provide perspectives to the authority regarding:
Current regional capacity for existing public and private programs providing substance use disorder assessments, each of the American society of addiction medicine levels of care, and recovery support services;
Barriers to accessing the existing health system for those populations chronically exposed to criminal legal system responses relating to complex behavioral health conditions and the consequences of trauma, and possible innovations that could reduce those barriers and improve the quality and accessibility of care for those populations;
Evidence-based, research-based, and promising treatment and recovery services appropriate for target populations, to include, but not be limited to, field-based outreach and engagement, case management, mental and physical health care, contingency management, medication-assisted treatment and other innovative medication therapies, peer support services, family education, housing, job training and employment programs, and treatments that have not traditionally been covered by insurance;
Workforce needs for the behavioral health services sector, including wage and retention challenges;
Options for leveraging existing integrated managed care, medicaid waiver, American Indian or Alaska Native fee-for-service behavioral health benefits, and private insurance service capacity for substance use disorders, including but not limited to coordination with managed care organizations, behavioral health administrative services organizations, the Washington health benefit exchange, accountable communities of health, and the office of the insurance commissioner;
Framework and design assistance for jurisdictions to assist in compliance with the requirements of RCW 10.31.110 for diversion of individuals with complex behavioral health conditions to community-based care whenever possible and appropriate, and identifying resource gaps that impede jurisdictions in fully realizing the potential impact of this approach;
The design of a referral mechanism for referring people with substance use disorder or problematic behaviors resulting from drug use into the supportive services described in this section, including intercepting individuals who likely would otherwise be referred into the criminal legal system, with the express intention of ensuring that decriminalization of possession of personal use amounts does not inadvertently contribute to increased racial disparity among those who continue to be exposed to the criminal legal system due to income instability and involvement in the illicit economy to meet basic needs;
The design of ongoing qualitative and quantitative research about the types of services desired by people with substance use disorders and barriers they experience in accessing existing and recommended services; and
Proposing a funding framework in which, over time, resources are shifted from punishment sectors to community-based care interventions such that community-based care becomes the primary strategy for addressing and resolving public order issues related to behavioral health conditions.
The advisory committee must convene as necessary for the development of the substance use recovery services plan and the development and adoption of rules for implementing the plan, and must convene to monitor implementation of the plan and advise the authority.
This section expires December 31, 2026.
The implementation of the statewide substance use recovery services plan established under section 2 of this act must be funded in the following manner:
Responsibility for payment of substance use disorder treatment services including outpatient treatment, withdrawal management, residential treatment, medications for opioid use disorder, and crisis stabilization services are as follows: (a) Payment for covered services for individuals enrolled in medicaid managed care plans is the responsibility of the managed care plan to whom the enrollee is assigned; (b) payment for individuals enrolled in the medicaid fee-for-service program is the responsibility of the health care authority; (c) payment for covered services for individuals enrolled in private health care plans is the responsibility of the private health care plan; and (d) payment for all other individuals as well as services not covered by medicaid or private plans is the responsibility of the behavioral health administrative services organization; and
Outreach and engagement services and recovery support services that are not reimbursable through insurance will be funded through a combination of: Appropriations from the recovery pathways account under chapter . . ., Laws of 2021 (House Bill No. . . .); targeted investments from the federal substance abuse block grant, if permissible under the grant; funds recovered by the state through lawsuits against opioid manufacturers, if permissible; and appropriations from the state general fund based on a calculation of the savings captured from reduced expenses for the department of corrections resulting from this act.
By April 1, 2023, the director, in consultation with the department and the pharmacy quality assurance commission, shall adopt rules establishing maximum personal use amounts of controlled substances, counterfeit substances, and legend drugs known to be used by people for recreational or nonmedical and nonprescribed purposes.
When the committee learns of a recreational or nonmedical and nonprescribed use of a controlled substance, counterfeit substance, or legend drug for which a maximum personal use amount has not been established, the director must adopt a maximum personal use amount for that substance within one year of learning of its recreational or nonmedical and nonprescribed use.
In adopting the rules under this section, the director must convene and consult with a work group, which must include, at a minimum: Persons who currently use controlled substances outside the legal authority of a prescription or valid practitioner order; persons in recovery from substance use disorder who previously used substances outside the legal authority of a prescription or valid practitioner order; representatives from law enforcement; a representative of public defenders; a representative of prosecutors; and experts relevant to setting threshold amounts of controlled substances.
For the purposes of this section, the term "personal use amount" has the same meaning as in RCW 69.50.101.
Except as authorized by this chapter, it is unlawful for any person to createor deliver a counterfeit substance, or possess a counterfeit substance in excess of the applicable personal use amount.
Any person who violates this section with respect to:
A counterfeit substance classified in Schedule I or II which is a narcotic drug, or flunitrazepam classified in Schedule IV, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years, fined not more than twenty-five thousand dollars, or both;
A counterfeit substance which is methamphetamine, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years, fined not more than twenty-five thousand dollars, or both;
Any other counterfeit substance classified in Schedule I, II, or III, is guilty of a class C felony punishable according to chapter 9A.20 RCW;
A counterfeit substance classified in Schedule IV, except flunitrazepam, is guilty of a class C felony punishable according to chapter 9A.20 RCW;
A counterfeit substance classified in Schedule V, is guilty of a class C felony punishable according to chapter 9A.20 RCW.
It is unlawful for any person to possess a controlled substance in excess of the applicable personal use amount, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW.
The possession, by a person twenty-one years of age or older, of useable marijuana, marijuana concentrates, or marijuana-infused products in amounts that do not exceed those set forth in RCW 69.50.360(3) is not a violation of this section, this chapter, or any other provision of Washington state law.
The possession of marijuana, useable marijuana, marijuana concentrates, and marijuana-infused products being physically transported or delivered within the state, in amounts not exceeding those that may be established under RCW 69.50.385(3), by a licensed employee of a common carrier when performing the duties authorized in accordance with RCW 69.50.382 and 69.50.385, is not a violation of this section, this chapter, or any other provision of Washington state law.
The delivery by a person twenty-one years of age or older to one or more persons twenty-one years of age or older, during a single twenty-four hour period, for noncommercial purposes and not conditioned upon or done in connection with the provision or receipt of financial consideration, of any of the following marijuana products, is not a violation of this section, this chapter, or any other provisions of Washington state law:
One-half ounce of useable marijuana;
Eight ounces of marijuana-infused product in solid form;
Thirty-six ounces of marijuana-infused product in liquid form; or
Three and one-half grams of marijuana concentrates.
The act of delivering marijuana or a marijuana product as authorized under this subsection (4) must meet one of the following requirements:
The delivery must be done in a location outside of the view of general public and in a nonpublic place; or
The marijuana or marijuana product must be in the original packaging as purchased from the marijuana retailer.
No person under twenty-one years of age may possess, manufacture, sell, or distribute marijuana, marijuana-infused products, or marijuana concentrates, regardless of THC concentration. This does not include qualifying patients with a valid authorization.
The possession by a qualifying patient or designated provider of marijuana concentrates, useable marijuana, marijuana-infused products, or plants in accordance with chapter 69.51A RCW is not a violation of this section, this chapter, or any other provision of Washington state law.
Except as provided in RCW 69.50.401(2)(c) , any person found guilty of possession of forty grams or less of marijuana is guilty of a misdemeanor**, unless the amount of marijuana does not exceed the applicable personal use amount or is otherwise authorized by this chapter**.
It is unlawful for any person to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance other than marijuana**, unless the drug paraphernalia is used to prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a personal use amount of a controlled substance other than marijuana**. Any person who violates this subsection is guilty of a misdemeanor.
It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance other than marijuana. This subsection does not apply to a social service agency or health care agency possessing or distributing drug paraphernalia for the purposes of distributing the paraphernalia to others for personal use. Any person who violates this subsection is guilty of a misdemeanor.
Any person eighteen years of age or over who violates subsection (2) of this section by delivering drug paraphernalia to a person under eighteen years of age who is at least three years his or her junior is guilty of a gross misdemeanor.
It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this subsection is guilty of a misdemeanor.
It is lawful for any person over the age of eighteen to possess sterile hypodermic syringes and needles for the purpose of reducing blood-borne diseases.
It shall be unlawful for any person to sellor deliver any legend drug, or possess any legend drug in excess of an applicable personal use amount, except upon the order or prescription of a physician under chapter 18.71 RCW, an osteopathic physician and surgeon under chapter 18.57 RCW, an optometrist licensed under chapter 18.53 RCW who is certified by the optometry board under RCW 18.53.010, a dentist under chapter 18.32 RCW, a podiatric physician and surgeon under chapter 18.22 RCW, a veterinarian under chapter 18.92 RCW, a commissioned medical or dental officer in the United States armed forces or public health service in the discharge of his or her official duties, a duly licensed physician or dentist employed by the veterans administration in the discharge of his or her official duties, a registered nurse or advanced registered nurse practitioner under chapter 18.79 RCW when authorized by the nursing care quality assurance commission, a pharmacist licensed under chapter 18.64 RCW to the extent permitted by drug therapy guidelines or protocols established under RCW 18.64.011 and authorized by the commission and approved by a practitioner authorized to prescribe drugs, a physician assistant under chapter 18.71A RCW when authorized by the Washington medical commission, or any of the following professionals in any province of Canada that shares a common border with the state of Washington or in any state of the United States: A physician licensed to practice medicine and surgery or a physician licensed to practice osteopathic medicine and surgery, a dentist licensed to practice dentistry, a podiatric physician and surgeon licensed to practice podiatric medicine and surgery, a licensed advanced registered nurse practitioner, a licensed physician assistant, or a veterinarian licensed to practice veterinary medicine: PROVIDED, HOWEVER, That the above provisions shall not apply to sale, delivery, or possession by drug wholesalers or drug manufacturers, or their agents or employees, or to any practitioner acting within the scope of his or her license, or to a common or contract carrier or warehouse operator, or any employee thereof, whose possession of any legend drug is in the usual course of business or employment: PROVIDED FURTHER, That nothing in this chapter or chapter 18.64 RCW shall prevent a family planning clinic that is under contract with the health care authority from selling, delivering, possessing, and dispensing commercially prepackaged oral contraceptives prescribed by authorized, licensed health care practitioners: PROVIDED FURTHER, That nothing in this chapter prohibits possession or delivery of legend drugs by an authorized collector or other person participating in the operation of a drug take-back program authorized in chapter 69.48 RCW.
A violation of this section involving the sale, delivery, or possession with intent to sell or deliver is a class B felony punishable according to chapter 9A.20 RCW.
A violation of this section involving possession is a misdemeanor.
For the purpose of this section, "personal use amount" has the meaning provided in RCW 69.50.101.
Beginning July 1, 2022, all law enforcement personnel required to complete basic law enforcement training under RCW 43.101.200 must receive training on law enforcement interaction with persons with substance use disorders, including referral to treatment and recovery services, as part of the basic law enforcement training. The training must be developed by the commission in consultation with appropriate substance use disorder recovery advocacy organizations and with appropriate community, local, and state organizations and agencies that have expertise in the area of working with persons with substance use disorders, including law enforcement diversion of such individuals to community-based care. In developing the training, the commission must also examine existing courses certified by the commission that relate to persons with a substance use disorder, and should draw on existing training partnerships with the Washington association of sheriffs and police chiefs.
The training must consist of classroom instruction or internet instruction and shall replicate likely field situations to the maximum extent possible. The training should include, at a minimum, core instruction in all of the following:
Proper procedures for referring persons to treatment and supportive services in accordance with section 2 of this act;
The cause and nature of substance use disorders, including the role of trauma;
Barriers to treatment engagement experienced by many with such disorders who have contact with the legal system;
How to identify indicators of substance use disorder and how to respond appropriately in a variety of common situations;
Conflict resolution and de-escalation techniques for potentially dangerous situations involving persons with a substance use disorder;
Appropriate language usage when interacting with persons with a substance use disorder;
Alternatives to lethal force when interacting with potentially dangerous persons with a substance use disorder;
The principles of recovery and the multiple pathways to recovery; and
Community and state resources available to serve persons with substance use disorders and how these resources can be best used by law enforcement to support persons with a substance use disorder in their communities.
In addition to incorporation into the basic law enforcement training under RCW 43.101.200, training must be made available to law enforcement agencies, through electronic means, for use at their convenience and determined by the internal training needs and resources of each agency.
The state of Washington fully occupies and preempts the entire field of setting penalties for violations of the controlled substances act and of establishing policies pertaining to personal use amounts as provided under section 5 of this act. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to controlled substances that are consistent with this chapter. Such local ordinances shall have the same penalties as provided for by state law. Local laws and ordinances that are inconsistent with the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of the city, town, county, or municipality. Nothing in this section shall be construed to inhibit local jurisdictions from creating additional channels for diversion to community-based care of individuals who commit law violations related to complex behavioral health needs, above those required by state law including in RCW 10.31.110.
Nothing in this act prohibits a public or private employer from establishing or enforcing employment or workplace policies pertaining to use, possession, manufacture, distribution, or dispensation of controlled substances, counterfeit substances, or legend drugs, regardless of whether the amount used, possessed, manufactured, distributed, or dispensed constitutes a personal use amount. This includes, for example, hiring practices, drug testing, and termination and other disciplinary actions for violations.
If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.