23-1062.02. Use of controlled substances; prescription of schedule II controlled substances; reports; treatment plans; monitoring program inquiries; preauthorizations; definitions

A. A physician who prescribes a schedule II controlled substance to an employee shall comply with title 32, chapter 32, article 4, including the provisions in that article relating to patients with traumatic injuries.

B. A physician shall include in the report required under commission rule the following information pertaining to the use of a narcotic or opium-based controlled substance that is listed in schedule II or the prescription of any opioid medication:

1. Justification for the use of the controlled substance, including documentation of the following:

(a) That a physical examination of the employee was conducted.

(b) That a substance use risk assessment of the employee was conducted.

(c) That the employee gave informed consent for any opioid treatment.

2. A treatment plan describing the measures that the physician will implement to monitor and prevent the development of abuse, dependence, addiction or diversion by the employee. The physician shall include in the treatment plan all of the following:

(a) A medication agreement.

(b) The frequency of face-to-face follow-up visits to reevaluate the employee's continued use of opioids.

(c) Random drug testing.

(d) Documentation that the medication regime is providing relief that is demonstrated by clinically meaningful improvement in function.

(e) Criteria and procedures for tapering and discontinuing opioid prescription or administration as part of the treatment.

(f) Criteria and procedures for offering or referring the employee for treatment for dependence on or addiction to opioids.

C. If the drug test of the employee reveals inconsistent results, the physician within five business days shall provide a written report to the carrier, self-insured employer or commission setting forth a treatment plan to address the inconsistent drug test results.

D. Before prescribing an opioid analgesic or benzodiazepine controlled substance that is listed in schedule II, III or IV for an employee and at least quarterly while that prescription remains a part of the treatment, the physician shall obtain a patient utilization report regarding the employee from the controlled substances prescription monitoring program's central database tracking system as required by section 36-2606. The physician shall report the results to the carrier, self-insured employer or commission as soon as reasonably practicable but not later than thirty days after the date of the inquiry. Thereafter, the carrier, self-insured employer or commission may request not more than once every two months that the physician obtain a patient utilization report regarding the employee from the controlled substances prescription monitoring program's central database tracking system.

E. If the patient utilization report from the controlled substances prescription monitoring program's central database tracking system reveals that the employee is receiving opioids from another undisclosed health care provider, the physician shall within five business days report the results to the carrier, self-insured employer or commission.

F. If the physician does not comply with this section:

1. The carrier, self-insured employer or commission is not responsible for payment for the physician's services until the physician complies with this section.

2. Except for a self-insured employer that provides medical care pursuant to section 23-1070, the employer, carrier or commission may request a change of physician after making a written request to the physician to comply with this section and the request identifies the area of noncompliance. If a change of physician is ordered and the order becomes final, the employee shall select a physician who agrees to comply with this section. If other medical providers are not available in the employee's area of residence, the employer, carrier or commission shall pay in advance for the employee's reasonable travel expenses, including the cost of transportation, food, lodging and loss of pay, if applicable.

G. If medically necessary, the carrier, self-insured employer or commission shall provide drug rehabilitation and detoxification treatment for an employee who becomes dependent on or addicted to opioids that are prescribed for a work-related injury. In the event of a medical conflict regarding the necessity for drug rehabilitation and detoxification, the carrier, self-insured employer or commission shall continue to provide the opioids until a determination is made after a hearing by an administrative law judge.

H. If the employee resides out of state, the carrier, self-insured employer or commission is not responsible for providing medications that are subject to this section if the out-of-state physician fails to comply with this section. If the other state has a controlled substances monitoring program, the physician shall submit an inquiry to the database as prescribed by subsection D of this section.

I. A carrier, a self-insured employer or the commission may require physician compliance with this section notwithstanding the existence of a prior award addressing medical maintenance benefits for medications. A carrier or self-insured employer is not liable for bad faith or unfair claims processing for any act taken in compliance of and consistent with this section or any act reasonably necessary to monitor or assess the appropriateness and effectiveness of an employee's opioid use.

J. For the purposes of this section:

1. " Clinically meaningful improvement in function" means both of the following:

(a) A significant improvement in the performance of activities of daily living or a reduction in work restrictions.

(b) A reduction in dependency on continued medical treatment.

2. " Inconsistent results" means:

(a) The employee's reported medications, including the parent drugs or metabolites, are not detected.

(b) Controlled substances are detected that are not reported by the employee.

3. " Substance use risk assessment" means an evaluation of an employee's unique likelihood for addiction, misuse, diversion or another adverse consequence resulting from the employee being prescribed or receiving treatment with opioids.

4. " Traumatic injury" as used in title 32, chapter 32, article 4 means physical injury that creates a reasonable risk of death or that causes serious or permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.