The Problem of Pain: Reducing Opioid Risks - Disability Management Employer Coalition (DMEC)

Reducing Opioid Risks Through Management and Alternatives

While employers are making progress in their efforts to end America’s opioid epidemic, the death toll is still rising due to other factors. Using opioids for management of pain during recovery from injuries is a high-risk practice, and replacing opioids with alternatives is a best practice that is slowly taking hold, in the face of many challenges.

Reform in Progress

A national campaign against opioid mismanagement is beginning to reduce the number of new prescriptions for opioids. If management strategies are also applied to monitor, adjust, and end existing opioid use appropriately during treatment, opioid addiction risks can be reduced.¹ These practices also can reduce the number of cases of hyperalgesia, where extended opioid use results in higher pain sensitivity and reduced function. All of this is great news for people seeking treatment for painful injuries or illnesses, and for their employers.

Most states have updated guidelines around prescribing opioids, including their use in managing chronic pain. The Centers for Disease Control (CDC) has also published guidelines,² notes Michael Coupland, CPsych, CRC, developer of the COPE with Pain program. Guidelines often include risk mitigation strategies such as only one provider prescribing opioids to a patient, urine drug screening during treatment, and behavioral support for patients with aberrant behavior.

Reforms still in process involve physician training on the guidelines which will help prescribing practice become more uniform, reduce error, and provide patients with more supervision and support while opioids are part of the treatment program. The first medical specialties targeted for training were on the front line of the opioid epidemic: pain specialists, occupational physicians, and orthopedists. Training may be slower to reach physicians in some other fields, such as primary care physicians or family doctors.

Opioid Litigation Trends

So far, Coupland notes, “the plaintiff bar has not been aggressively litigating anyone — treating provider, insurance, or employer — as being at fault when their claimant became addicted.”

But now most states and the federal government have clear standards in place to prevent inappropriate opioid prescribing. If any party fails to follow those new standards and an employee is harmed as a result, are the risks of litigation higher than in the past?

There is not much litigation to suggest an answer to that question. A lawsuit by professional football players against the National Football League (NFL)³ might not apply to most other employers. This class-action lawsuit by more than 1,800 former players asserts that “they suffer long-term organ and joint damage… as a result of improper and deceptive drug distribution practices by NFL teams,” according to the Washington Post. In this case, trainers directly employed by the teams are accused of practices that violate particular federal laws that may not apply to other employers that don’t directly prescribe opioids.

“I think it is extremely unlikely that the claimant bar will sue doctors whose injured worker patients have become addicted,” said workers’ compensation (WC) journalist and expert Peter Rousmaniere. “This would be a negligence law suit which the claimant bar is unversed in.” Also, “There may be problems with what is in effect a medical malpractice suit re: exclusive remedy,” a legal doctrine that applies to WC cases.

Rousmaniere added, “The more interesting question is if WC insurers have sued the drug companies. For the past 10 years lawyers and state governments have been trying to bring the drug companies to court.”

Some employers, not waiting for the healthcare system to finish implementing reforms, have established their own guidelines to reduce opioid risks in prescribing and treatment. Some guidelines may limit opioid use to the acute phase for some injuries, often around six weeks, Coupland said, and suggest opioid alternatives to manage pain later in a claim. He listed several alternatives to opioids: cognitive behavioral therapy (CBT), acupuncture, and manual therapies such as physical therapy and massage therapy.

Introducing Opioid Alternatives

Most state and federal reforms focus on ending inappropriate use of opioids. Replacing this pain management tool with other more appropriate and effective tools requires another round of reform that will be implemented primarily by the private sector, especially health plans.

Employers need support from the market to provide opioid alternatives for pain management. “When selecting a carrier, employers have to work on their benefit design so that it provides these alternatives,” said Coupland.

Most employers, however, are already locked into a contract with a health plan. They may have little room to negotiate changes, especially if opioid alternatives appear more expensive than pills. Pain management may be a secondary concern for health plans, as pain is often considered a symptom rather than a diagnosis to be treated.

As a result, introducing opioid alternatives into pain management may require bringing a third-party specialist in to negotiate with an employer’s health plan, WC carrier, or third-party administrator (TPA).

Coupland described the process as follows. Where an employer initiates this discussion, the specialist meets with the health plan team or WC medical network, which may include a claims examiner, nurse case manager, and physician. The specialist describes the pain management plan for a patient in question, and its justification. The health plan or WC medical team agrees to over-ride their usual authorization limit, allowing more visits to a CBT therapist, physical therapist, or other modality, as needed.

For some employers, the TPA may initiate the discussion with a proposal to the employer, then bring a specialist to meet with the health plan or WC medical network to over-ride the usual authorization limits.

ADA Considerations

Although pain management and addiction are both closely related to opioids, they are separate subjects for purposes of the Americans with Disabilities Act (ADA).

Addicts

The Equal Employment Opportunity Commission (EEOC) website states that “individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a ‘qualified individual with a disability’ protected by the ADA when the employer takes action on the basis of their drug use.”⁴ This gives employers the leverage to require employees to submit to extensive inpatient rehabilitation programs as part of a “last-chance agreement.”

The EEOC further states, “a test for the illegal use of drugs is not considered a medical examination under the ADA,” which allows employers to do follow-up testing to ensure the employee has sustained rehabilitation.

Pain Management

For employees recovering from an injury or illness and in a pain management program, the diagnosed condition is the core issue for ADA purposes. “They would not meet the diagnostic criteria for a substance abuse disorder, since they are not using any maladaptive behaviors to get the drugs, they are actually complying with medical care,” said Coupland. But due to the diagnosed condition, they may request the ADA interactive process to accommodate work restrictions related to chronic pain to stay at work or return to work.

When the Safety Net Fails

The professionalism of integrated absence management (IAM) practitioners is motivation enough to work toward a comprehensive safety net against opioid misuse. It is still valuable, however, to understand what can happen for some people when this safety net fails.

The CDC estimates that nearly two million Americans abused or were dependent on opioids in 2014.²The opioid prescribing practices that created this at-risk population were not largely ended until that year or even later. As a result, some at-risk people are still employed today, whether in the workplace, or out on disability leave but not yet separated from their employers. When employers cut off inappropriate opioid prescriptions, these employees are at risk of going out to black markets on the streets to buy opioids.

These markets are more dangerous than ever, due to potent synthetic opioids by illegal manufacturers being sold to American black markets. Fentanyl is up to 100 times stronger than morphine, and carfentanyl is up to 10,000 times stronger than morphine. These powerful, yet relatively inexpensive, black market drugs are often added to morphine or heroin to increase their potency. They may also be used in attempts to make cheap counterfeit oxycodone.

Addicts or dependents often do not know that the opioids they bought in black markets are counterfeit and laced with these dangerous synthetic opioids. Overdose deaths have been increasing for several years. The final official count of drug overdose deaths in 2016 will not be released until December. The NY Times conducted a research project to estimate the number of 2016 deaths based on preliminary data from hundreds of state health departments and county coroners and medical examiners from areas that accounted for 76% of overdose deaths in 2015.⁵ Some findings from this study:

In 2016, overdose deaths for all drug types, including opioids, were estimated at 62,497 and very likely exceeded 59,000.
This would be the largest annual jump ever recorded in the United States, up from 52,404 deaths in 2015, with the increase largely driven by fentanyl and carfentanyl.

Some of the people who are dying of overdoses may be our former co-workers. The one ray of hope in this bleak picture is that law enforcement may begin constricting the black markets.

In China, manufacture of fentanyl and carfentanyl became illegal on Mar. 1, 2017, after months of talks between the Chinese and U.S. governments. If these controls become effective they could reduce the availability of these dangerous substances in American black markets. The federal Drug Enforcement Agency (DEA) called this “a potential game-changer.”

Federal and state law enforcement agencies are also increasing their efforts. On July 24, the U.S. Attorney’s Office for the northern district of Ohio reported the arrest of Bin Wang, a Chinese national operating in Woburn, Massachusetts. Wang allegedly received shipments of Chinese drugs and shipped them to Ohio. It was the first arrest of an alleged wholesale distributor, according to Michael Tobin, a spokesman for the U.S. Attorney’s Office in northern Ohio.

In another case in Massachusetts, on May 25, authorities seized 110 pounds of chemicals used to manufacture fentanyl, enough to make pills worth nearly half a billion dollars on black markets. This suggests some players may be illegally manufacturing opioids in the U.S. using Chinese ingredients.

Lives are hanging in the balance as the new “war on drugs” unfolds. IAM professionals have a role to play by building and maintaining safety nets to prevent opioid misuse through the close scrutiny and management of employee benefits.

Conclusion

The alarming increase in death by opioid overdose should drive wall-to-wall reform in use of opioids for pain management. Despite challenges, many areas of reform are being implemented, but provision of opioid alternatives for pain management is lagging. Aggressive, comprehensive reforms in this area may save lives.