State News : New Jersey

On February 15, 2017 Governor Chris Christie signed a new law requiring health insurance coverage for treatment of substance abuse disorders and certain restrictions on the prescription of opioids and other Schedule II drugs.  The bill is touted as one of the most aggressive in the nation, and compensation practitioners are asking what will be the impact on New Jersey workers’ compensation?

There are several key provisions contained in this bill that will have an impact on workers’ compensation practitioners.  First, the bill sets time limits for how long prescriptions may be written.  This aspect of the bill will directly impact workers’ compensation physicians.  The initial prescription for an opioid cannot exceed a five-day supply for acute pain. After the fourth day, upon consultation with the medical provider, the physician can issue a subsequent prescription up to a 25 day supply.  The bill does not say whether “patient consultation” means an in-person visit or a telephone call.  However, emergency regulations are being promulgated on a number of issues right now, and this is likely to be one area addressed in those regulations. It should be noted that the language of the bill focuses on “acute” pain patients, and it seems clear that this language does not apply to chronic pain patients.

The bill also requires the provider to take steps that many workers’ compensation pain management doctors in New Jersey already perform:

§  Taking a thorough medical history, including the patient’s experience with non-opioid medications and non-pharmacological pain management as well as substance abuse history;

§  Conducting and documenting a physical examination;

§  Developing a treatment plan focused on the cause of the patient’s pain;

§  Accessing the Prescription Monitoring Program, which is an invaluable resource that tracks all prescriptions for narcotics and opioids from all providers going back several years.

When physicians renew prescriptions beyond the five-day period, they must document the rationale for the issuance of the subsequent prescription. The bill recites that prior to the initial and the third prescription, the practitioner must discuss with the patient the risks associated with the drug being prescribed, including risks of overdosing, the reason why the prescription is necessary, and alternate modes of treatment.

Most New Jersey pain management physicians in workers’ compensation already have pain management agreements or contracts entered into between the patient and provider, setting forth the terms of treatment.  The bill now requires such agreements to be executed at the time of the third prescription of an opioid drug.  These pain management contracts are crucial because they establish what the patient must do to continue to obtain opioid medications and what must not be done.  Urine samples and other measures are generally part of these pain management agreements.

The new bill creates staged and mandatory counseling with documentation designed to assure the public that pain medications are seriously evaluated by the prescribing physician.  If the controlled dangerous substance or other prescription opioid is continuously prescribed for three months or more, the practitioner must, a minimum of every three months, review the course of treatment as well as any new information about the etiology of the patient’s pain and progress.  Most importantly, the physician must assess prior to every renewal whether the patient is experiencing problems associated with physical and psychological dependence and then document the results of the assessment.  The physician must consider stopping the use of the controlled substance, decreasing the dosage or trying some other drug or treatment modality to reduce dependency.

Workers’ compensation carriers and third party administrators can expect greater detail in reports generated by pain management physicians as a result of this legislation.  These reports should focus on the standards outlined above, particularly whether the patient is at risk of or becoming dependent on opioids and whether some other modality should be used.  Employers, carriers and third party administrators will certainly take note of those physicians who expend time thoroughly documenting these issues and explaining the rationale for their recommendations.

The bill also recites language from guidelines issued by the New Jersey Office of the Attorney General on March 1, 2010 regarding the limitation of Schedule II controlled dangerous substances to quantities which do not exceed a 30-day supply.   That guidance is now incorporated in this bill and does allow a physician to issue multiple prescriptions for up to a 90-day supply with renewals on a 30-day basis.

This bill may have the effect of enhancing the use of pain management physicians who eschew the use of opioids and prefer instead to do interventional modalities, such as injections and blocks.  There are a variety of pain management doctors in New Jersey, and not all of them prescribe opioids or Schedule II controlled dangerous substances.  Some prefer other modalities precisely because of problems associated with opioids.

One other central aspect of this bill pertains to health insurance carriers which now must provide coverage for treatment of those with substance abuse disorders.  That aspect will not have much impact at all on workers’ compensation because employers, carriers and third party administrators have been paying for many years for reasonable and necessary care of those with work-related substance abuse disorders (usually from addiction to authorized prescriptions of opioids and prescription narcotics).  Many workers’ compensation cases involve workers who have become addicted to opioids used in connection with worker injuries, requiring admission to licensed programs designed to wean them off narcotics.

For health insurance carriers, this new coverage provision is important because it mandates payment of benefits for the first 180 days per plan year of inpatient and outpatient treatment of substance abuse disorders, if such treatment is deemed medically necessary by the covered person’s physician, licensed psychologist, or psychiatrist.

Without a doubt, this legislation highlights a growing problem in the State of New Jersey in connection with high numbers of patients who have become addicted to and dependent on opioids to function in their lives.  Without intending to do harm, some pain management doctors have in the past effectively traded acute pain relief for long term dependency and addiction.  That is less likely to occur in the future on account of this legislation.

The undersigned will keep readers posted as the new emergency regulations emerge on this important legislation.  The effective date of this legislation is May 16, 2017.   My thanks to our librarian Francine Viden for her assistance on research of this and prior legislation.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.