Tennessee and Opioids: Fumble at the Goal Line

(An update to this post is available here).

I was as excited as anyone this past summer when Tennessee’s legislature passed Senate Bill 3315.  SB 3315 amends the definition of Utilization Review to explicitly include Schedule II, III, and IV drugs being used for pain management.  Specifically, the bill states “it is the intent of the general assembly to ensure the availability of quality medical care services for injured and disabled employees and to manage medical costs in workers’ compensation matters by eradicating prescription drug abuse through the employment of the system established by subsection (a) to review any health care provider prescribing one (1) or more Schedule II, III, or IV controlled substances for pain management to an injured or disabled employee for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances.”  Pretty clear legislative intent. 

Elsewhere in TN regs (specifically Chapter 0800-02-06.05 of the General Rules of the Workers’ Compensation Program), the circumstances under which mandatory UR can be invoked are clearly outlined: “The parties are required to participate in utilization review under this Chapter whenever a dispute arises as to the medical necessity of a recommended treatment.”

So, this should be simple.  Any opioid prescribed for pain management for more than 90 days should be subject to utilization review, allowing for a 3^rd party assessment of medical necessity and offering the payor community a statutorily recognized path to rein in opioid abuse.  Great news. 

If only that were the interpretation being offered by the Tennessee Department of Labor (TDOL)…   We’re hearing from several of our TN customers that SB 3315 is being misinterpreted by TDOL. 

There are several other components of SB 3315 among which is a section that states “If a treating physician determines that pain is persisting for an injured or disabled employee beyond an expected period for healing, the treating physician may either prescribe, if the physician is a qualified physician as defined… or refer, such injured or disabled employee for pain management encompassing pharmacological, non-pharmacological and other approaches to manage chronic pain.” 

Apparently, TDOL is unwilling to consider an otherwise valid UR determination unless:

1)      The treating physician has first documented that the pain has persisted “beyond an expected period for healing”; and

2)      The referral to a “qualified physician” has occurred and that physician has reached the same conclusion (that the pain has persisted “beyond an expected period for healing”); and

3)      An additional 90 days have elapsed.

I see several issues.

First, I’ve read SB 3315 over and over… and I have no idea how TDOL could stitch together these requirements, particularly based on the clearly stated legislative intent.

Second, the path outlined here relies entirely on a treating physician, who in many cases caused or at least contributed to the opioid dependence, to suddenly concede that his treatment might not be working after all… despite the increasing dosage of opioids and the addition of half a dozen companion drugs over the last 5 years.  Never.  Going.  To.  Happen.

Third, there are no statutorily recognized treatment guidelines in TN.  How is the “expected period of healing” to be determined by the physician?  On what should that determination be based? 

Fourth, this process has no chance of achieving the stated goal of SB 3315: to manage costs by eradicating (the bill actually uses the word “eradicate”!) prescription drug abuse.

SB 3315 had a chance of making a real impact.  Given the misinterpretation of the bill by TDOL, I fear Tennessee is coughing up the ball right at the goal line. 

If TDOL doesn’t straighten this out, we’ll be left with a court battle as TN payors fight for a proper regulatory interpretation of the legislative intent of SB 3315.  I hope it doesn’t come to that, but if it does, the real loser will be patients who continue to grow ever more dependent on opioid medications that have no hope of alleviating their chronic pain over the long term. 
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