The Doctor’s Advocate | First Quarter 2017
When the opioid epidemic hit the news—not just in scientific journals but in the popular media as well—it spurred Congress and state legislatures to offer public healthcare policy solutions. This has resulted in increased funding for treatment, more regulations for prescribing opioids, measures to increase the availability of opioid antagonists, and a reduction in liability for the administration of opioid antagonists.
In 2016, the autopsy of pop music legend Prince found that the singer died from a “self-administered” dose of the opioid fentanyl. Prince’s tragic demise was only one celebrity death attributed to opioid-related causes. Celebrity deaths brought the dangers of opioids to the public’s attention, and statistics for the general population support the perception of an opioid epidemic. Centers for Disease Control (CDC) Director Dr. Tom Frieden noted: "We know of no other medication routinely used for a nonfatal condition that kills patients so frequently.”1
Between the media attention and the preponderance of evidence that opioid usage had become a major health problem in America, legislators were spurred to address the problem.
Legislators typically attempt to solve problems in two ways: (1) providing funding for programs, and (2) enacting regulations through legislation.
As an indicator of the level of concern of U.S. lawmakers, the usually gridlocked Republican Congress and Democratic President Barack Obama united to address the issue. On December 13, 2016, both houses of Congress and the president worked together to approve legislation that granted $1 billion to state opioid abuse programs. This was a sharp increase in funding from earlier in the year and from previous years. (The Senate passed the law by a vote of 94–5, and the House of Representatives passed the law by a vote 355–77.)
Legislators have also passed laws regulating the prescribing of opioids.
Requiring Physicians to Check Prescription Databases
Prescription drug databases, originally intended to be used by law enforcement, have been widened to allow healthcare providers and prescribers to review a patient’s prescription history for signs of overprescribing or addiction. Every U.S. state with the exception of Missouri has a prescription monitoring database.2
Some states have gone even further. By 2016, 18 states had passed legislation requiring medical professionals to consult a state database: California, Connecticut, Kentucky, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, West Virginia, and Wisconsin.
State laws and regulations mandating prescribers to query the database vary as to requirements, but in general, most require the prescriber to check: (1) before initially prescribing a controlled substance to a patient in an opioid treatment program, (2) in workers’ compensation cases, and (3) prior to initially prescribing or dispensing an opioid analgesic or benzodiazepine in any setting.3
Most often, the penalty for prescribers for failure to check the database is referral to the department or board that enforces violation of professional standards.4
Opioid Antagonist Access Laws and Good Samaritan Protections5
Legislators have also sought to decrease deaths from prescription opioid abuse by increasing access to opioid antagonists. These drugs have no abuse potential and counteract the life-threatening effects of an overdose, allowing the victim to breathe normally once administered.
Previously, access to these lifesaving medications was limited because a doctor-patient relationship needed to exist for a prescription to be issued. This requirement was ineffective because family and friends are often in the best place to administer an antagonist during an overdose, but they did not have access to a prescription.
In 2001, New Mexico became the first state to enact legislation increasing access to opioid antagonists. Over the past 15 years, 47 states and the District of Columbia have passed similar laws. The exceptions are Kansas, Montana, and Wyoming.
In conjunction with increasing access to opioid antagonists, many states have passed Good Samaritan laws to limit liability for healthcare professionals and “laypersons” for administering opioid antagonist medications. For immunity to apply, laws typically require that a person must have a reasonable belief that someone is experiencing an overdose emergency, must remain on scene until help arrives, and must cooperate with emergency personnel. For healthcare personnel, immunity will usually apply unless there is gross negligence in the administration of the opioid antagonist.
Good Samaritan laws for the administration of opioid antagonists have been passed in 37 states and the District of Columbia. The 13 states that have yet to pass opioid antagonist Good Samaritan laws are Arizona, Idaho, Iowa, Kansas, Maine, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, and Wyoming.
The legislative response to the opioid epidemic includes expanding healthcare providers’ ability to access databases that track opioid prescriptions. Lawmakers are also working to ensure easier access to opioid antagonists and immunity to those who administer opioid antagonists. Legislators are also providing more public funding for existing programs for treatment of opioid-addicted patients.
At this point, there is insufficient data to evaluate the effectiveness of the recently passed legislation, but lawmakers and public health advocates hope to see a decline in opioid-related deaths when data becomes available.
The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.
The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.
The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.
First Quarter 2017
Legislating the Opioid Epidemic
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