On 5/1/18, the Rules for the Utilization of Opioids, Related Prescriptions, and Pain Management Treatment in Workers’ Compensation Claims (hereafter “Opioid Utilization Rules” or “Rules”) went into effect in connection with North Carolina Workers’ Compensation claims. The purpose of the Rules is to ensure that employees receive proper care, adequately contain medical costs, and facilitate timely and effective medical treatment for pain management. The Rules generally apply when an employer is providing medical compensation and the employee is being prescribed targeted controlled substances (“opioids”) and/or other pain management for the outpatient treatment of non-cancer pain. Employers in all industries including trucking need to understand when and how the Opioid Utilization Rules apply in order to ensure that the Rules are properly enforced.

The Opioid Utilization Rules affect opioid prescriptions differently depending on how long pain management has been ongoing and how long the treatment continues, and the Rules divide a course of pain treatment into three phases for that purpose: (1) the first prescription of pain medication in an acute phase; (2) the remainder of the acute phase; and (3) the chronic phase. The “acute phase” consists of the 12 weeks of pain treatment following an injury by accident, occupational disease, surgery for the compensable injury or occupational disease, or subsequent aggravation of the compensable injury or occupational disease. The chronic phase consists of the prescription of opioids beyond the 12-week “acute phase.”

The Rules specifically address what can be prescribed, how much can be prescribed, and when it can be prescribed. For instance, during the 12-week acute phase, an employee can only be prescribed one opioid and the opioid must be short-acting, defined as having a quick onset of action which provides relief for 2-6 hours. An employee may be prescribed two opioids simultaneously in the chronic phase, but only one of the opioids may be an extended-release opioid which provides relief for over 8 hours. An employee cannot be prescribed more than a 50 mg morphine equivalent dose (MED) per day for the first prescription (unless previously prescribed opioids) or more than a 90 mg MED per day with documentation in the remainder of the acute phase. Some opioids, such as fentanyl, can only be prescribed in the chronic phase after receiving preauthorization from the carrier, and benzodiazepines are generally prohibited for prescription in tandem with opioids.

The Rules also provide for regular drug testing when opioids are prescribed for an extended period of time. A presumptive urine drug test, such as a drug test cup or a dipstick test, is required before an employee can be prescribed an opioid after (1) the first prescription plus 30 days in the acute phase and (2) entering into the chronic phase. If the presumptive urine drug test is positive for non-disclosed drugs or negative for prescribed opioids, then a confirmatory urine drug test may be required. While waiting for the confirmatory urine drug test results, the healthcare provider can order a limited supply of the opioid or wait to prescribe the opioid until the results are received. An employee must also undergo 2-4 presumptive urine drug tests every year he or she remains in the chronic phase of opioid prescription. Additional drug tests can be administered with the permission of the carrier, and all drug tests can be administered by the provider randomly and unannounced. The Rules also address requirements associated with opioid antagonists, nonpharmacological treatment and the discontinuation or tapering of opioid use. For example, when an employee has a history of substance use disorder or is prescribed an opioid exceeding a 50 mg MED per day, the healthcare provider must consider co-prescribing an opioid antagonist. Whenever an employee presents to a healthcare provider for pain treatment, the provider must consider prescribing nonpharmacological treatment, including physical therapy, massage, and chiropractic treatment. Finally, an employee can be referred to a specialist for an evaluation for discontinuation or tapering of an opioid or for substance use disorder treatment if the health care provider believes it may be beneficial to the employee. Employers and carriers can inquire for more information about a health care provider’s recommended nonpharmacological treatment, opioid discontinuation or tapering and/or substance use disorder treatment by any method allowed by the Workers’ Compensation Act.

For more information on the application of the Opioid Utilizations Rules and how the rules affect your
interests, please contact the lawyers at Hedrick Gardner.

Matthew Glidewell

Matt Glidewell
Charlotte
704.319.5432
mglidewell@hedrickgardner.com

The information published in Hedrick Gardner Alerts is general in nature and not intended to take the place of legal advice on any particular matter. © 2018 Hedrick Gardner Kincheloe & Garofalo LLP