The enactment of House Bill 1 (HB 1) on July 12, 2012 will significantly impact the manner in which physicians will prescribe controlled substances for chronic pain patients. HB 1 introduces restrictions on pain management clinics and sets strict limits on prescribing controlled substances.
HB 1 and regulations implemented by The Kentucky Board of Medical Licensure (KBML) are anticipated to impact Kentucky’s workers’ compensation system by:
- Protecting patients by requiring the patient to obtain controlled substances from legitimate providers thus, avoiding abuse;
- Saving the cost of spending extraordinary amounts of money by reducing/eliminating illegitimate pain physicians/clinics;
- Increasing referrals of patients needing controlled substances to specialized physicians/pain clinics from designated
physicians who do not specialize in pain management or wish not to risk their practice by prescribing long-term controlled substances which, in turn, will increase consultation costs to self-insured employers and workers’ compensation insurance carriers (KRS 342.020(5));
- Decrease cost for patients treatment in emergency room settings as it relates to the prescription of controlled substances;
- Increase Utilization Review and Medical Fee Dispute cost. 803 KAR 25:096
KBML has implemented emergency regulations for HB 1 which are effective for the next six (6) months which establish when and how medical practitioners may prescribe controlled substances. Specifically, House Bill 1 defines a pain management facility to be:
- A facility where the majority of the patients receiving treatment are for pain that includes the use of controlled substances and;
- The treatment of pain is the practitioner’s/facility’s primary focus;
- Marketing/advertisement for the facility and/or practitioner in any medium is for pain management services.
Although a physician’s practice may be something other than pain management (ie family practice, internist, etc.), if the majority (greater than50%) of the patients are treated for pain and prescribed controlled substances for pain, then the practice may constitute a pain treatment facility regardless of whether the practice is an urgent treatment center, and family medicine practice, or other medical practice. A gray area remains whether a subspecialty practice such as orthopaedic surgery constitutes a pain treatment facility in the event that the majority of its patients present seeking treatment for pain or painful conditions. Details such as this will be tweaked as public hearings continue regarding the proposed regulations.
HB 1 requires that every physician who holds a Drug Enforcement Administration (DEA) permit must register to use Kentucky All Schedule Prescription Electronic Reporting (KASPER) and only applies to Schedule II controlled substances and Schedule III controlled substances containing Hydrocodone. KBML regulations apply to all Schedule II and Schedule III controlled substances and selected Schedule IV and V controlled substances. KBML’s strict regulations requires a request and review of a KASPER report for each patient before prescribing any controlled substances noted above.
HB 1 and KBML require a physician to:
- Verify the patient’s identification;
- Perform and document an extensive history and physical examination;
- Obtain/review a KASPER report for each patient;
- Make a medical decision based upon the patient’s history, physical examination to prescribe controlled substances;
- Prescribe only the amount of medication necessary to treat a specific medical complaint for a definite amount of time;
- Refrain from prescribing long-acting or controlled release opioids for acute pain and;
- Discontinue the mediation when the condition has resolved for initial prescribing purposes.
If prescribing controlled substances for more than three (3) months, a physician must:
- Perform/document a thorough history to include patient/family history of abuse, dependence, psychosocial contributing factors;
- Perform/document comprehensive physical examination during each clinical visit;
- Obtain medical records from other physicians who have previously treated the patient’s condition to justify long-term prescribing of controlled
substances;
- Establish/document working diagnosis;
- Formulate a treatment plan with specific and measureable goals
- Obtain a baseline urine drug screen/refuse to prescribe controlled substances if the test indicates improper use and;
- Attempt non-controlled substance treatments prior to prescribing a controlled substance.
If prescribing a controlled substance beyond the initial three (3) month period, a physician must:
- Perform a clinical visit with the patient once a month until the medication is properly titrated with appropriate monitoring in place;
- Obtain/review KASPER reports at least every three (3) months;
- Undertake action immediately if the patient does not abide by the physician’s directives and/or if the KASPER report shows controlled substances
prescribed by other physicians during the period of treatment;
- Perform random urine drug screens as well as random unannounced pill counts
- Discontinue the treatment and refer patient to an addiction specialist if there is no improvement in the condition or when there is drug seeking
behavior/diversion.
Given the recent enactment of HB 1 and the implementation of KBML’s emergency regulations, it is important that Kentucky employers and/or their workers’ compensation insurance carriers require providers to develop and submit treatment plans; evaluate the treatment plans through the Utilization Review process and; ensure employees designate physicians for treatment consistent with KRS 342.020(5) to control medical cost.
To discuss concerns as to how HB 1 and the KBML emergency regulations may affect a present or future claim or if you have any questions regarding workers’ compensation or any other employment related claim in Kentucky, please feel free to contact one of our Workers’ Compensation Practice Group and Employment Practices Group members.
