Immunity From Addiction In the New Year

Defense Digest, Vol. 23, No. 1, March 2017

by Ryan J. King, Esquire

It is no secret that, over the last decade, the rate of prescription drug abuse and misuse in the United States has grown at a significant rate. According to the Pennsylvania Legislature, a recent report found that 20 to 30% of all opioid pain medications are being misused. Experts estimate that as many as five million Americans are abusing prescription opioid pain medications, and the problem continues to grow. In an attempt to stem the tide of this epidemic, on November 2, 2016, Governor Tom Wolf signed the Safe Emergency Prescribing Act (SEPA), which became law on January 1, 2017.

SEPA places strict limitations on the amount and the way opioid pain medications can be prescribed by licensed health care providers in emergency departments and urgent care facilities. More importantly, the Act imparts immunity from civil liability if the health care providers working in these settings follow SEPA’s requirements. This unprecedented shield from civil lawsuits will not only protect health care providers, but it should have the added effect of curtailing the amount of prescription pain killers being obtained for misuse from emergency departments and urgent care facilities. The Act, however, is not without some potential problems for health care providers.

SEPA applies to health care providers licensed to prescribe opioid-based medications working in emergency departments and urgent care facilities in the Commonwealth. Thus, the Act applies to physicians, physician assistants, nurse practitioners or any other health care professional licensed to prescribe narcotic medications in an emergency department or urgent care facility. SEPA also covers patients who are in “observation status” but may be physically located outside the emergency department or urgent care facility. A patient is “under observation” if he or she receives onsite services from a hospital for more than 23 consecutive hours, including meals and a bed, but have not been formally admitted as an inpatient to the hospital.

The main provision of SEPA limits the amount of opioid pain medication that can be prescribed to a patient seeking treatment in an emergency department or urgent care facility. Under the Act, licensed health care providers cannot prescribe more than a seven-day supply of opioid pain medication to a patient seeking treatment. There is, however, an exception to this rule. If, in the provider’s professional medical judgment, a seven-day supply of opioid medication is insufficient to treat a patient for an acute medical condition, cancer or palliative care, the provider may prescribe more than the seven-day limit. Doing so requires that the provider identify and document the medical condition in the patient’s chart. The provider must also document that a non-opioid medication was not appropriate.

In the event the provider decides to prescribe opioid medication to a patient, the provider must check the prescription drug monitoring system known as Achieving Better Care by Monitoring All Prescriptions (ABC-MAP). There is no need to check this system if the patient is being medicated in an emergency department or urgent care facility. Checking ABC-MAP will inform the provider whether the patient is receiving opioid medication from another health care practitioner. Implementation of this requirement will not only help the current provider make an educated decision as to whether he or she should prescribe an opioid drug product, but it could also alert the provider to a drug seeking/abusing patient.

SEPA also prevents providers from refilling opioid medications in the emergency department or urgent care facility. There is no exception. This provision was obviously meant to combat drug seeking behavior from individuals who attempt to obtain refills of pain medication from overburdened emergency departments instead of from their primary care or pain management physicians, where they are likely to face closer scrutiny of their prescription and drug use history. This prohibition significantly bolsters the legislature’s first attempt at stopping drug abusers from preying on emergency departments. The language used in the original draft of the Act stated that a provider could not authorize the refilling of a prescription for an opioid drug product that has been lost, stolen or destroyed—some of the common excuses used by habitual drug seekers. However, the current language simply prohibits emergency room and urgent care providers from refilling opioid prescriptions regardless of the reason for needing the refill.

SEPA additionally attempts to combat the opioid addiction epidemic by offering help to individuals who may have a substance abuse problem. The Act requires a provider to refer for treatment individuals who are suspected substance abusers or who may be at risk for substance abuse. However, SEPA does not specify to whom the provider must refer an at-risk patient, it only requires the provider to make the referral. It does not require that the provider admit the individual or have the patient committed to a treatment facility.

The most significant provision in the Act may very well be the potential for immunity from civil lawsuits. If a provider follows the regulations promulgated by SEPA, he or she will be presumed to have acted in good faith and will be immune from civil liability. If, however, a provider fails to follow the Act’s requirements, he or she will be subjected to review and potential disciplinary action from the applicable governing body(ies).

*Ryan is an associate in our Pittsburgh, Pennsylvania office. He can be reached at 412.803.1155 or rjking@mdwcg.com.

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_{Defense Digest, Vol. 23, No. 1, March 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}