What Tennessee Clinicians Should Know About Prescribing Opioids: A Legislative Update

By: Jody Lutz and Mario Ramirez, MD

Reading Time: 10 minutes

Date: 07/25/2018

Filed Under: Tennessee, opioid prescribing, opioid legislation, fentanyl

Starting July 1, 2018 doctors who prescribe opioids in Tennessee face stricter guidelines and checkpoints before beginning acute or long term opioid therapy (COT: Chronic Opioid Therapy) for their patients. Additionally, the new laws will incentivize offenders to complete substance use treatment programs in prison and make dealing fentanyl and other dangerous substances second-degree murder when it causes a death. Recovery high schools, partial dispensing of opioid prescriptions and Buprenorphine prescribing restrictions are also included.

These new laws are part of Tennessee Governor Bill Haslam’s “TN Together,” the roughly $30 million attack plan to address the opioid crisis plaguing the Volunteer state.

AffirmHealth looks at the major legislative updates as well as Tennessee specific resources. 

Legislation: Senate Bill 2257 / House Bill 1831
Bill Effective: July 1, 2018 (partial fill requirements effective January 1, 2019)

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Infographic Source Can Be Found Here

Nita W. Shumaker, MD, 2017-18 president of the Tennessee Medical Association issued the following statement on Tennessee's new opioid law:

"It was clear when Governor Haslam announced his TN Together plan in January that lawmakers were going to do something to try to address the state's opioid abuse epidemic. With the passage of SB 2257 / HB 1831, Tennessee now has one of the most comprehensive and restrictive laws of any state.”

The Tennessee Medical Society provides the following summary:

"The new law restricts treatment of an opioid naïve patient to no more than a five-day supply of an opioid and no more than a 30-day supply for an acute care patient. Furthermore, the dosage of a prescribed opioid cannot exceed a daily 40-morphine milligram equivalent (40 MME). However, as part of a compromise with TMA, the law does allow that in "exceptional cases" where the prescriber deems an additional supply of the opioid might be warranted and circumstances exist that would make it difficult for the patient to acquire a second prescription, the provider could issue an opioid naïve patient a second prescription simultaneous to the initial prescription. Written documentation of why the second prescription was written must be included in the patient record, and the provider must counsel the patient or patient representative on the circumstances under which the second prescription could be filled (no sooner than five days or later than 10 days from issuance). Additional rules for prescribing to acute care patients were also codified including the mandate that a provider must personally assess the patient and obtain informed consent before prescribing an opioid, and other "reasonable, appropriate, and available non-opioid treatments for the pain condition" have been tried first or a contraindication or intolerance of those other options have been documented."

There are a number of exceptions to the rules including inpatient treatment, treatment by certified pain management specialists, and treatment of those in hospice care or who are undergoing active or palliative cancer treatment. 

The Tennessee Pharmacy Association provides an additional summary here.

TPA’s summary states in part:

Required Dispenser CSMD Checks:

  • Requires all dispensers (or their delegates) to check the Controlled Substance Monitoring Database (CSMD) prior to dispensing an opioid or a benzodiazepine the first time that human patient is dispensed a controlled substance at that practice site
  • Requires all dispensers (or their delegates) to check the CSMD again at least once every six (6) months for that human patient after the initial dispensing, for the duration of time the controlled substance is dispensed to that patient

Prescriber Documentation Requirements:

  • Requires prescribers to document specific elements prior to prescribing opioids, including informed consent and reasons for prescribing opioids
  • Dispensers (including pharmacists) have been removed from above documentation requirements

Opioid Prescriptions Written for 3-Day Supply or Less:

  • No required CSMD checks for prescribers or dispensers
  • No additional documentation requirements or partial fill restrictions
  • ICD-10 Codes are not required to be written on prescriptions
  • Maximum of 180 cumulative morphine milligram equivalents (MME)

Non-Exempt Opioid Prescriptions:

  • Must be partially filled with no more than a 5-day supply (for a 10-day prescription), or partially filled with no more than half the prescribed day supply limit (for prescriptions written for more than 10 days)
  • ICD-10 Codes (and “medical necessity” or “surgery”, if applicable) must be written on all non-exempt opioid prescriptions
  • General script limits: No more than a 10-day supply and a maximum of 500 cumulative MME
  • SurgeryNo more than a 20-day supply and a maximum of 850 cumulative MME
  • Medical necessityNo more than a 30-day supply and a maximum of 1,200 cumulative MME

Exempt Opioid Prescriptions:

  • Partial fill requirements do not apply
  • MME limits do not apply
  • ICD-10 Codes and “Exempt” must be written on all Exempt Opioid Prescriptions
  • Exempt conditions: active or palliative cancer treatment, hospice care, diagnosis of Sickle Cell Disease, inpatients of a licensed healthcare facility, patients seen by pain management specialists, patients treated with opioids for 90 days or more in the last year OR who are subsequently treated for 90 days or more, patients on methadone, buprenorphine, or naltrexone, or patients with severe burns or major physical trauma

Pharmacist Anti-Gag Clause: Voids agreements which limit the pharmacists’ ability to discuss any issue related to the dispensing of a controlled substance, including risks, effects, and characteristics of the controlled substance; what to expect and how the controlled substance should be used; reasonable alternatives to controlled substance; and any applicable cost sharing for a controlled substance or any amount an individual would pay for a controlled substance if that individual were paying cash.

Effective DateThis law would become effective on July 1, 2018. However, the partial fill requirements of this law are not mandatory prior to January 1, 2019, for dispensers who have not updated the dispenser’s software system.

 

Legislation: Senate Bill 2258 / House Bill 1832
Bill Effective Date: July 1, 2018
Bill (HB1832/SB2258) focuses on controlled substance schedules and rehabilitation for incarcerated individuals with Substance Use Disorders (SUD). This includes the creation of offender incentives  to complete intensive substance use treatment programs while incarcerated.

Additionally, updates to the schedule of controlled substances were created to better monitor and penalize the use and unlawful distribution of opioids. Synthetic versions of the drug fentanyl, are included in the controlled substance schedules. AffirmHealth discussed Fentanyl in our “word on the Street” blog. Find that story here.

Summary:

  • Revises various provisions of law regarding the scheduling of controlled substances and their analogues and derivatives, including updated identifications of drugs categorized in Schedules I-V
  • Authorizes sentence reduction credits for prisoners who successfully complete intensive substance use disorder treatment program
  • Gabapentin will be scheduled as a Schedule V controlled substance within Tennessee code.
    Restrictions created around the sale of the herbal substance kratom. The AffirmHealth Kratom primer can be found here.

 

Legislation: Senate Bill 2025 / House Bill 2440
Bill Effective Date: Upon becoming law (dispensing fee authorization and prorating of copay requirements effective January 1, 2019, for opioids and July 1, 2019, for all other controlled substances)
This legislation authorizes pharmacists to dispense less than the full prescription for opioids and other Schedule II drugs.  Senate Bill 2025 allows a pharmacist to partially fill a prescription if requested by the patient or directed by the physician.  

The legislation does not require the patient to go back to the doctor for the remainder of that prescription. The physician would be notified that a partial fill has taken place and only the portion filled is reported in the database.

The initiative is focused to target reducing unused pain medications medications remaining in household medicine cabinets and the unlawful use of those unused opioids. 

The Tennessee Pharmacy Association provides additional summary here.

TPA’s summary states in part:

  • Authorizes the partial filling of a controlled substance if the partial fill is requested by the patient or the practitioner who wrote the prescription and the total quantity dispensed through partial fills does not exceed the total quantity prescribed for the original prescription
  • Requires the pharmacist to retain the original prescription at the pharmacy where the prescription was first presented and the partial fill dispensed, and any subsequent fill shall occur at the pharmacy that initially dispensed the partial fill within thirty (30) days from issuance of the original prescription.
  • Requires the pharmacist to notify the prescriber of the partial fill and of the amount actually dispensed, either through a notation in the interoperable electronic health record of the patient, through submission of information to the controlled substance database, by electronic or facsimile transmission; or through a notation in the patient’s record that is maintained by the pharmacy, and that is accessible to the practitioner upon request
  • Requires any person who presents a prescription for a partial fill to pay the prorated portion of cost sharing and copayments
  • Authorizes a pharmacist or pharmacy to charge a dispensing fee to cover the actual supply and labor costs associated with the dispensing of the original prescription for a controlled substance and each partial fill associated with the original prescription
  • Establishes that any cost sharing, copayment, dispensing fee, or any portion thereof, made to a pharmacist or pharmacy for the dispensing of a partial fill of a controlled substance shall not be considered an overpayment
  • Establishes that a health insurance issuer or pharmacy benefits manager shall not utilize partial fills of a controlled substance to reduce payments to a pharmacist or pharmacy for dispensing multiple partial fills.


Legislation: Senate Bill 777 / House Bill 717
Effective: July 1, 2018
The Mental Health, Alcohol and Drug Abuse Prevention and/or Treatment, Intellectual and Developmental Disabilities, and Personal Support Services Licensure Law, in part, provides for licensure of services and facilities operated for alcohol and drug abuse prevention or treatment, including nonresidential office-based opiate treatment facilities. Present law defines "nonresidential office-based opiate treatment facility" to include entities prescribing products containing buprenorphine, or products containing any other controlled substance designed to treat opiate addiction by preventing symptoms of withdrawal to 50 percent or more of its patients "and" to 150 or more patients. 

The legislation places additional restrictions on those prescribing buprenorphine, requiring more facilities that prescribe the drug to be licensed.   The bill will require the dispensing of buprenorphine be submitted to the state’s controlled substance database and a top 20 list of prescribers will be generated.  “The goal is to get the prescriber and the patient focused on a full recovery from addiction,” said sponsoring Senator Jackson.  “That includes the drugs used to treat opiate addiction.  There are good treatment facilities that are already working toward that goal and are helping their patients get back into a normal life pattern while they wean off opiates.   However, there are others who perpetuate the problem by substituting one drug for another without a plan to get the patient off treatment medication.”


OTHER OPIOID EPIDEMIC RELATED LEGISLATION:
Senate Bill 1717

This bill addresses the use of gift cards obtained through retail theft which has been heavily linked to the purchase of opiates. The proposal follows a law passed by the General Assembly last year defining organized retail crime and creating two new theft offenses for the purpose of prosecuting individuals who return stolen merchandise to receive gift cards, money or store credit.



Senate Bill 1626/House Bill 1460
This bill establishes non-residential treatment facilities that combine counseling and drug treatment with a high school curriculum. Known as a Recovery High School, this are public schools for students who have a primary or secondary alcohol or other drug abuse or dependency diagnosis or co-occurring substance use and psychiatric diagnosis. It provides a high school education that leads to a diploma in compliance with the rules of the state board of education. The recovery school must have a structured plan of recovery for the students.


Senate Bill 2022/House Bill 2004
This bill requires the department of health to establish, maintain, and publicize a toll-free telephonic and web-based hotline for the purpose of receiving allegations of opioid abuse or diversion, and to refer reports to the appropriate health-related board or law enforcement official.  

Under this bill, any entity that prescribes, dispenses, or handles opioids (entity) must display a sign in a prominent place stating:

"NOTICE: PLEASE REPORT ANY SUSPECTED ABUSE OR DIVERSION OF OPIOIDS, OR ANY OTHER IMPROPER BEHAVIOR WITH RESPECT TO OPIOIDS, TO THE DEPARTMENT OF HEALTH'S TOLL-FREE HOTLINE: [NUMBER OF HOTLINE]"

This bill specifies that anyone who reports information in good faith to the hotline will be immune from civil liability related to the report. This bill also prohibits, solely for a report made in good faith:

(1) An entity from discharging or terminating an employee; and 
(2) Adverse licensure action against a licensed healthcare professional. 


TENNESSEE STATE PROVIDED RESOURCES

TN Together Frequently Asked Questions

TN Chronic Pain Guidelines 2017

TN Behavioral Health and Substance Abuse Services Best Practice Tool

 

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