Over the past two years, Congress has taken steps to address the opioid crisis. Most recently, the legislature has done this through the passage of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act).
The SUPPORT Act addresses various aspects related to the opioid crisis through a series of more than 120 separate bills. Here are five sections in particular that physicians should hone in on.
The Centers for Medicare and Medicaid Services (CMS) has been tasked with recommending changes to their programs to enhance the treatment and prevention of opioid addiction as well as coverage and payment of medication-assisted treatment. Physicians should check the CMS website for announcements.
The Center for Medicare and Medicaid Innovation may test models for behavioral health providers. These providers may be offered incentive payments for adopting electronic health records and for using that technology to improve the quality and coordination of care. There are two crucial items related to this section:
- as with Meaningful Use incentive payments in general, care should be taken not to misrepresent compliance; and
- this funding, at least at this time, is limited to behavioral health providers.
States must establish a qualifying prescription drug monitoring program (PDMP) and require healthcare providers to check the PDMP for a Medicaid enrollee’s prescription drug history before prescribing controlled substances. For physicians, this means checking the PDMP database. There has been a great deal of discussion about the ability for physicians and pharmacies to track usage in other states as well. Tennessee, for example, has six bordering states. Detection becomes hard and more problematic because “drug seekers” merely need to cross state borders to fill a prescription.
The bill increases the maximum number of patients that healthcare providers may initially treat with medication-assisted treatment (i.e., under a buprenorphine waiver). The U.S. Department of Health and Human Services, in conjunction with the Centers for Disease Control and Prevention, has released guidance that naloxone should be prescribed with opioids for certain individuals.
This section of Eliminating Kickbacks in Recovery Act of 2018 (EKRA) is one of the SUPPORT Act’s related bills. This provision makes it a federal crime to receive or offer “[i]llegal remunerations for referrals to recovery homes, clinical treatment facilities, and laboratories,” the Recovery Kickback Prohibition.
This wording is broad and extends beyond clinical laboratory arrangements with treatment facilities. It includes other payers in addition to federal and state government programs, such as Medicare and Medicaid. Penalties under this new law carry a $200,000 per occurrence fine and up to 10 years in prison. Although similar to the federal Anti-Kickback Statute, which includes some of the AKS safe harbors, EKRA created an entirely new offense.
In sum, the SUPPORT Act and its constituent laws create both new opportunities—and new liabilities—for physicians. From my perspective, if physicians are charting medical necessity, prescribing in accordance with the law, checking the PDMP, and staying abreast of the changes in both the prescribing of opioids and treatment of patients with opioid disorders, then these changes could lead to better patient outcomes.
Rachel V. Rose, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.