Opioid Abuse – Financial Realignment May Be The Answer

Opioid abuse is a complex problem with tragic and staggering consequences. It has recently gained prominence because of federal and state initiatives, as well as increased coverage by the media.

I write this post because I tried to make sense of the various reports I read, and realized that it may be necessary to take a more holistic view of the problem for a meaningful result to be achieved.

By way of introduction, I feel duty bound to point out that because I am not a doctor there may be certain gaps in the analysis.

That said, the basic starting point and most relevant question is why the United States prescribes more opiate drugs on a per capita basis than any other nation in the world. The United States makes up only 4.6 percent of the world’s population, but consumes 80 percent of its opioids and 99 percent of the world’s hydrocodone (the opiate that is in Vicodin).  With respect to the effects of opioid abuse, according to the CDC more than 165,000 Americans died from prescription related opioid overdoses between 1999 and 2014, with 2014 claiming 14,000 lives.  Per capita opioid prescriptions grew by 7.3% between 2007 and 2012, and in 2014 approximately 2,000,000 people abused or were dependent on prescription.  More than 1,000 people per day are treated in emergency departments for misusing prescription opioids.

The problem is real – the causes are complex – and developing a meaningful solution that achieves substantial and measurable results will require significant thought and resources.

I will try to view my assessment of the problem and possible solution through the prism of a lesson I learned from my contracts professor in law school. He basically said you that if you want to understand contracts just follow the money.

A friend of mine once commented very cynically that the government has two essential tools – bribery and extortion.  It pays you to do what it wants you to do and fines you for doing what it does not want you to do.

A recent feature article in Medical Economics magazine has related important information that is relevant to the opioid issue.  In 2013, a study of Medicare Part D claims showed that most of the over the 54 million prescriptions for opioids were written by internists and family practitioners. Current reimbursement trends for primary care physicians (outside of Medicare) are set up to financially rewards primary care physicians to spend 15 minutes or less with their patients. Arguably, when a patient complains of pain, it takes a lot less time to prescribe a painkiller than to: work through a detailed history; complete a full analysis of all of the medications the patient is taking; obtain an accurate and truthful response to gauge the amount of pain and ferret out what other prescription or otherwise-obtained pain killers the patient may be taking.  To really get a full picture, the medical professional must get a sense of painkillers or other drugs that may be bought on the street, borrowed from friends, stolen from other people’s medicine cabinets, etc.  If the government truly wanted to make a meaningful difference, I believe the first step would be to align reimbursement with the objectives we try to achieve.  Doctors must be reimbursed for the time and effort we expect them to expend.

This disconnect rears its ugly head in the realm of hospital-based care as well. Hospitals are financially incentivized based on a final score of HCHAPS – which in simple English is a score of patient satisfaction.  It seems rather obvious that when people are in pain they will reasonably be happier if they get painkillers.  It has been argued that issues of pain should be taken out of the survey.  However, that might be too broad a brush with which to make deletions to the survey.  Obviously, pain management is central to how patients are treated.  I believe that a first step would be to align financial incentives with expected outcomes.

I am certainly not asserting that doctors do not place patient care above personal financial gain. However, at the end of the day doctors are human, appointments are scheduled and given particular timeslots, hospitals have real budgetary concerns, and the government has enacted numerous laws subjecting doctors to financial rewards and financial fines.  Therefore, it would be most sensible to address the opioid issue by aligning reimbursement with expected outcomes.  The government has legislated Pharma rep activity, anti-kickback statutes, and reengineered reimbursement to effect all the various changes they want. Meaningful use, MIPS and MACRA are just a few examples/acronyms that come to mind. It would be helpful if the government’s power of the purse were utilized to address the opioid problem.

It might also be helpful if there were a national database of all Schedule II and III drugs which medical professionals prescribing any painkillers would have to personally access with an additional administrative ICD code that would reimburse the medical professional for the time and effort.

Lawmakers have recently sought to address the opioid problem.  On March 10, 2016, the U.S. Senate passed the Comprehensive Addiction and Recovery Act (CARA), which mandates the development of best practices for prescribing opioids and authorizes grants for drug education, prevention, and treatment programs. CARA directs the Secretary of HHS to convene a task force composed of numerous agencies and organizations to review, modify, and update best practices for managing pain and prescribing pain medication.  On May 13, 2016, the House passed the Bill; therefore, it next goes to the President who may sign or veto the Bill. The website www.Govtrack.us estimates that there is a 40 percent chance that the President will sign the bill.

Several states have also recently sought to address opioid overprescribing; however, the enacted laws seem to be more symbolic than substantive.

Massachusetts – enacted the first law in the nation to limit an opioid prescription to a 7-day supply for a first time adult prescription and a 7-day limit on every opiate prescription for minors unless the medical professional feels that a larger amount is appropriate.

Connecticut – enacted similar legislation, but requires the medical professional to note the condition which required deviation from the seven day limit.

New York – enacted similar legislation that lowers the limit for opioid prescriptions for acute pain from 30-days to no more than a 7-day supply, with exceptions for chronic pain and other conditions.

Obviously each state has bells and whistles added to their legislation.  Examples include the need for education, disclosures, and distribution of kits for overdoses among other features.  However, if the majority of opioid prescriptions are written by primary care physicians, would it be unreasonable to mandate that before the third refill, the patient must go to a doctor with a specialty in pain management for an evaluation or provision of alternative therapies? Furthermore, if the state or federal government wants alternative interventions to opioids (such as epidurals, nerve blocks, trigger shots, acupuncture, physical therapy, or massage therapy, etc.) it should use the power of the purse to effect change.

The looming question is how long it will take to move the needle (figuratively) with respect to the opioid problem, and whether it may be too little too late.

In sum, there seems to be significant competing interests that come into play. The government would like to lower health care costs, commoditize medicine, and lower reimbursements, while at the same time it wants the medical professionals to spend extra time with and give increased attention to patients, and effectively become the first line of protection to deal with and police patients.  The government wants the medical community to oversee issues that originate with real people who are in real pain while in the care by doctors who were charged with helping patients with their health related issues – a significant health issue being pain management.  Of course, the government’s expectation of doctors seems to fall somewhat short of actually paying for the objectives they hope to achieve.

If I am missing something, I ask the readers to comment publicly online or directly to me.


DISCLAIMER – This post and the analysis submitted are not a legal conclusion and should not be construed as such but are presented for discussion and informational purposes only. In addition, in some jurisdictions this post may be considered to be attorney advertising.

About Mendel Zilberberg:

An attorney, visionary and entrepreneur admitted to practice in New York, New Jersey and Florida who has represented and counseled clients with nationwide interests in many areas of the healthcare arena.