Opioid Legislation Update: Third Circuit

July 7th, 2017 by CHHS RAs

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By CHHS RA Bach Nguyen

Note: This is part of an ongoing series of posts covering recent state legislative efforts to address the nationwide opioid epidemic. The posts are organized by federal judicial circuit, with this post covering the Third Circuit. As a reminder, in the federal court system, a circuit court hears appeals from a group of states, usually based on geographical region, though some exceptions exist. In this case, the Third Circuit is composed of New Jersey, Delaware, and Pennsylvania.

As with the previous circuits, New Jersey, Delaware, and Pennsylvania are focused on creating laws that limit the prescription of opioids, as well as laws that expand treatment for those struggling with addiction. While the laws remain similar in form, the details make the laws some of the most strict in the nation. Earlier this year, New Jersey passed, and the governor signed, one of the nation’s most comprehensive and aggressive laws combating the opioid epidemic.

The law reduces first-time prescriptions of opioids from 30 days to 5 days, requires all healthcare providers, from doctors to midwives, to discuss the dangers of the drugs with their patients, and requires insurers to provide for 180 days of treatment without preauthorization, “including an initial 28-day period in which health plans cannot deny inpatient care.” After this period, plans can perform concurrent review to change the location where care is given, but the review cannot be done more than once every two weeks.Less-noticed, but groundbreaking, parts of the bill require health plans to go out-of-network, if necessary, to ensure that people seeking help are placed within 24 hours. The law, as written, will extend to other forms of substance abuse, not just opioid and heroin addiction.” New Jersey has been among the states with the highest rate of opioid-related emergency room visits, and has also joined a multi-state probe into the marketing practices of opioid manufacturers.

Similar to New Jersey, Delaware has also enacted laws targeting over-prescription of opioids and assisting patients in gaining access to treatment. HB 91 improves Delaware’s ability to track and refer physicians who prescribe opioids at unusually high rates to law enforcement and the medical board for review. Compared to Connecticut’s information sharing law discussed in the last installment, this method seems to more directly target physicians as oppose to informing physicians about existing patient prescriptions. Another bill, HB 100, requires insurers to provide notice to people being denied drug-abuse treatment of legal avenues and remedies they can pursue, in addition to authorizing the Department of Justice to provide legal assistance, including using funds from the Consumer Protection Fund to offset costs of providing legal assistance. SB 41, “a companion to HB 100 that removes pre-authorization requirements[,] which can result in patients being denied at care centers and guarantee at least 14 days of inpatient treatment[,] passed the General Assembly earlier this month after receiving unanimous support in both chambers.” All three bills were signed into law on May 30th of this year. Delaware lawmakers have also introduced a bill that imposes a tax on the sale of opioids in the state, as well as another bill that seeks to improve study of opioids and addiction by expanding access to overdose fatality data.

Pennsylvania’s legislative efforts this year differ slightly compared to New Jersey’s and Delaware’s. While Pennsylvania is also aiming to address over-prescription of opioids, it is acting through the Workers Compensation act, proposing an amendment that regulates for how long and which medications are available to workers injured on the job. Another proposed law, which has passed in the Pennsylvania House of Representatives, requires prescriptions to be passed electronically from doctors to pharmacists, aiming to reduce fraudulent use and theft of traditional prescriptions. It will be interesting to follow the progression of this effort, as the choice in electronic transmission methods may open up prescriptions to an even broader range of attacks and fraud. Pennsylvania is also adopting some measures similar to those in the Second Circuit. Like Connecticut, Pennsylvania is also among the states that have enacted legislation for creating voluntary non-opioid directives. Lastly, similar to New York, the Pennsylvania Senate just approved SB 662, which would increase penalties when illegal drugs cause serious injuries to victims.

While the legislative efforts of the Third Circuit states are similar to many other states, slight differences seem to make the laws stricter than previous circuits, particularly in New Jersey. Many of these differences may simply reflect local demographics and differences, but it will be valuable to evaluate and compare the effectiveness of these policies moving forward.

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