Article by Daniela C. Vizcarra, Esq.

In an effort to address the state-wide opioid addiction public health crisis, Governor Christie recently signed Senate Bill 3 into law, which becomes effective on May 16, 2017.  The controversial bill, categorized as one of the nation’s most aggressive anti-opioid laws, limits the prescription of opioids and mandates drug-addicted patients’ access to rehabilitation.  How will the new rules affect workers’ compensation programs and what should employers, carriers, and third party administrators [“TPAs”] know?  While workers’ compensation policies are not explicitly mentioned in the bill, there are clear implications to customary physician and claims management practices and this article will summarize the key provisions of the law and discuss the potential implications to workers’ compensation.

Limitations and Rules for Practitioner’s Prescribing Opioids

The bill includes many provisions that place restrictions on prescriptions for acute-pain patients.  The bill also requires new procedural safeguards at different parts of the prescription process that are aimed at ensuring both acute and chronic pain opioid users are properly educated regarding risks of abuse and overdose and prescribing physicians are auditing the patients’ histories and behaviors for red-flags.

Initial Prescription for Patients in Acute Pain Cannot Exceed Five Days

The statute places a five-day supply limit on initial opioid prescriptions, the first within a year, for patients in acute pain.  This five-day limitation is the strictest opioid prescription limitation in the nation, following a few states that limit prescriptions to seven days.  The prior limit was thirty days.

 

Extension of the Initial Prescription for Patients in Acute Pain Require a Consultation And Documentation

In order to extend the initial five-day prescription, the provisions require    (1) a consultation with the prescribing physician and patient and (2) the prescribing physician to document the rationale for the extension and weight of potential risks and benefits to the patient.  The consultation must take place at least four days following the issuance of the initial prescription.  The emergency amendments, which expired on April 15, 2017, provide guidance as to whether an in-person consultation is required.  They suggest the consultation can take place through “any direct means of communication, ” which includes telephone.  The legislature is currently finalizing regulations to supplement the bill that will likely address this issue.

If after the consultation the physician determines an extension is medically necessary and documents the extension does not present an undue risk of addiction, the physician can issue a subsequent prescription for an additional twenty-five day supply.

 

Practitioners Must Document and Perform Due Diligence Prior to Writing an Initial Opioid Prescription for Acute or Chronic Pain:

The provisions put in place procedural safeguards to ensure prescribing physicians are scrutinizing the patient’s history before writing an opioid prescription, which includes steps most workers’ compensation doctors in New Jersey are already implementing.  Before writing an initial opioid prescription for acute or chronic pain patients, the prescribing physician must:

1. Document the patient’s medical history including substance abuse history and non-pharmacological pain management approaches;
2. Conduct and document a physical examination;
3. Prepare a treatment plan; and
4. Perform an inquiry on the Prescription Monitoring Program to determine if opioids or other narcotics are being prescribed.

 

Practitioners Must Document and Explain Risks to Opioid Patients

In an effort to ensure opioid patients are properly educated regarding the risks associated with taking the highly-addictive narcotic medication, practitioners must discuss and document a discussion prior to the initial and third prescription [this would be the prescription following the twenty-five day extension of the initial five-day supply].  The discussion must include:

1. An explanation of the risks of physical and psychological dependence, taking more opioids then prescribed and mixing other drugs and alcohol with the medication;
2. Reasons why the prescription is necessary; and
3. Alternative available treatments.

 

Opioid Prescriptions for More Than Ninety Consecutive Days Require Frequent Reviews and a Pain Management Contract

Opioid prescriptions for chronic pain patients open for longer than ninety consecutive days require reviews and the patient to enter into a pain management contract with the prescribing physician.

The review must be performed at minimum every ninety days and include:

1. Preparation of a new treatment plan outlining etiology of pain and progress toward treatment objectives;
2. Assessment of physical and/or psychological dependence and;
3. If possible, reasonable efforts to stop use or decrease the current dose.

 

The provisions also require patients to enter into a pain management agreement with the prescribing physician.  The contract must include the treatment plan, patient’s obligations, means by which the physician can check compliance, and the process for terminating the agreement.  The agreement may require routine urine testing.

 

Implications for Workers’ Compensation Carriers, TPAs and Employers

The new prescription rules and limitations will apply to claimants on both extremes of the injury spectrum.  The five-day supply limit only applies to the acutely injured patient but will hopefully curb the amount of pills a claimant consumes in the initial days following the work injury.  Adjusters may receive frequent calls from claimants who want to extend their five-day opioid supply and need authorization.  At this time, it appears as though the bill will not require claimants to attend an in-person consultation, which is a huge-cost saver.  However, adjusters will want to stay on top of the case management and issue timely authorizations to prevent the claimant from pursuing the medication through costly unauthorized emergency room visits or urgent care visits.

On the other side of the injury spectrum is the claimant suffering from chronic pain.  The legislation will require more appointments with and frequent reviews from prescribing physicians based on the standards outlined above.  As a result, workers’ compensation professionals should expect to see longer appointment times with more detailed reports including treatment plans and the practitioners’ reasoning for their recommendations.  The rules also place more pressure on physicians to wean claimants off of their opioid medication when possible.

Carriers, employers and TPAs may also be wondering how they can hold workers’ compensation physicians accountable for following the rules set forth in the bill.  At this time, it is unclear what will happen to practitioners who violate these provisions, as the statute does not currently outline any penalties or fines in the event of non-compliance.  Instead, the bill gives the state Attorney General the authority and responsibility to investigate any violations of the provisions.

Rehab Provision

The new rehab provisions mandate state-regulated health insurance plans to provide 180 days of inpatient or outpatient substance abuse treatment every plan year.  Insurance providers must cover the first four weeks of treatment without pre-payment or prior authorization.  A patient’s covered treatment provider or licensed psychologist or psychiatrist must deem the substance abuse treatment medically necessary.

 

Implications for Workers’ Compensation Carriers, TPAs and Employers

The mandate does not expressly mention workers’ compensation policies, which are considered casualty insurance policies.  However, employers, workers’ compensation carriers and third party administrators across New Jersey have already been authorizing programs deemed reasonable and necessary to address a claimant’s work-related substance abuse.

While the rehab mandate will not necessarily affect workers’ compensation carriers, the provisions of the mandate will apply to all state regulated health insurance plans, including policies that cover state employees and many teachers and local government workers.  Insurance premiums of state worker policyholders will unequivocally rise as a result of the new law.

The new legislation is a step in the right direction in addressing the opioid health crisis affecting the State of New Jersey.  The law places limitations on prescription lengths and requirements for claimant narcotic education and physician review and analysis throughout each step of the prescription process.  The legislature is currently working on issuing regulations to supplement and provide more specific rules for the new bill.  We will continue to publish updates as this important law evolves.