New Jersey’s New Opioid Law: Concerns for Injured Workers

State ranks third in a nation for overdoses related to opioids

Governor Christie recently signed SB 3 to set up a 5-day limit on initial opioid prescriptions in the State of New Jersey. We’ve asked Richard B. Rubenstein, the co-author of LexisNexis Practice Guide New Jersey Workers’ Compensation, what SB 3 is all about and what it could mean for injured workers in his state.

LexisNexis: How bad is the opioid abuse/misuse problem in New Jersey?

Rubenstein: New Jersey is ranked 45th in the nation in the number of opioid prescriptions, but third in the nation in overdoses, primarily overdoses of heroin, either alone in combination with Fentanyl. Published data from the New Jersey Medical Examiner's Office shows there were 1,587 drug overdose deaths in 2015, up 21 percent from the year before. Heroin deaths also rose significantly, to 918, the highest level since official records were kept in New Jersey.

LexisNexis: What are the key takeaways of SB 3 which sets up a 5-day limit on initial opioid prescriptions? (See http://www.njleg.state.nj.us/2016/Bills/S0500/3_R1.PDF)

Rubenstein: This 35 page Bill, opposed by the Medical Society of New Jersey, institutes an initial 5-day dosage limit for patients prescribed opioid drugs. This contrasts with the national norm of 7 days instituted elsewhere. The Bill requires a prescribing practitioner to take a thorough medical history including a history of substance abuse and patient's medication experiences, and develop a pain treatment plan.  It mandates virtually unlimited coverage of both inpatient and outpatient drug addition recovery programs by state-regulated health insurance carriers. It does not cover cancer or chronic pain patients or end-of-life care. It also carries education requirements for medical professionals. It can be fairly stated that no other disease or condition is given the sort of mandates--substantive or procedural--that opioid addiction is given by this Bill. The mandate for coverage, limitation of patient financial responsibility, and procedure required for denial of medical services is unprecedented. It appears that the drafters placed a synthesis of the Bills passed by other states on steroids.

LexisNexis: How will this impact NJ workers’ comp and injured workers who use opioid prescriptions long term and/or post-surgery?

Rubenstein: There is no specific reference to Workers Compensation in the Bill. However, the rules and procedures binding practitioners will directly affect our system. While one would hope that every practitioner already took a detailed medical history, the Bill will hopefully mandate a more detailed inquiry. One must question whether that will be conducted by an actual physician, or other personnel. As to the development of a "plan," a stock paragraph will no doubt be created for inclusion in the chart. The most direct effect is the alteration of appointment routines. NJ's system does not allow injured workers to simply make an appointment with their authorized treating physicians. The protocol is driven by the carriers and TPA's, who minimize actual visits as a cost-saving measure. This Bill will provide that the acutely injured worker must be actually seen by a physician, with specific findings, after the five day supply of opioids, in order for a renewal or extension. This will generate additional expenses for employers, which will ostensibly be matched by savings on unnecessary prescriptions, and all that follows from them. There is a concern that the difficulty in meeting the new appointment requirements, particularly during the early, acute stage of an injury, where the adjuster is not yet fully documented and involved in management of the claim, will drive injured workers to emergency rooms, with the attendant confusion and expense.

Quite frankly, this bill is a "front end" measure, intended to prevent initial dependence and abuse of opioids, and to facilitate early intervention for addiction problems. Workers compensation practitioners have concerns about the "back end" uncovered by this Bill, where failed treatment plans result in chronic pain management with opioids.

It is interesting to note that this Bill was signed into law only a scant two months after the New Jersey Division of Workers Compensation saw its first medical marijuana decision. While medical marijuana may have been quietly approved in earlier cases, in the first litigated case, an Administrative Supervising Judge of Workers Compensation ordered the provision of medical marijuana to a patient with CRPS, who had failed other modalities, but admitted experimenting with illicit marijuana use, with good result for pain relief. In a procedurally bizarre Hearing, where the Court had to rely upon a hired expert witness---none of the actual caregivers would cooperate in testifying---it was determined that medical marijuana was a permissible modality of treatment under the New Jersey Workers Compensation Act.

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