Simone Colgan Dunlap, Partner

Publications & Media

Massachusetts Passes Emergency Opioid Legislation

Health Law Alert Simone Colgan Dunlap

On August 9, 2018, Massachusetts Governor Charlie Baker signed Emergency House Bill 4742, titled “An Act for Prevention and Access to Appropriate Care and Treatment of Addiction” (the “CARE Act”) into law. The CARE Act builds upon Massachusetts’ existing opioid abuse prevention law (the “STEP Act”), which expanded treatment for people who suffer from opioid addiction, limited opioid prescribing practices, and allocated educational funding dedicated to the risks associated with opioid misuse.

Notably, the CARE Act revises Massachusetts’ anti-kickback statute to prohibit manufacturers from offering any discount, rebate, product voucher, or other reduction in an individual's out-of-pocket expenses, including co-payments and deductibles, for any Schedule II opioid. For purposes of this rule, Schedule II opioids include any substance having an addiction-forming or addiction-sustaining liability similar to morphine, or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability.

The CARE Act also includes a number of provisions that affect health care providers’ practices and autonomy. A summary of some of the CARE Act’s key provisions is provided below:

Occupational Licensing and Professional Scopes of Practice

  • Increased Access to Naloxone

The CARE Act increases access to naloxone—the opioid overdose reversal drug—by directing the Department of Public Health to issue a statewide standing order that will authorize every pharmacy in Massachusetts to dispense naloxone.

  • Liability Protection

The CARE Act encourages broader use of naloxone by guaranteeing that practitioners who prescribe and pharmacists who dispense naloxone in good faith will be protected from criminal or civil liability.

  • Expanded Scope of Practice

The CARE Act expands the range of medical professionals authorized to perform substance abuse evaluations, and it requires that emergency departments affirmatively connect patients with the appropriate level of care prior to discharge. The CARE Act also creates a commission to recommend standards for establishing a professional credential for recovery coaches, in an effort to formalize the role of recovery coaches in the regimen of long-term addiction treatment.

  • Expanded Access to Partial Fills

The CARE Act revises Massachusetts’ current “partial fill” law by allowing patients to receive a portion of their full opioid prescription without invalidating the remainder or incurring additional costs. Patients must be allowed to return to the same pharmacy within 30 days to fill the rest of their partially filled prescription.

  • Mandatory Electronic Prescribing

In an attempt to reduce fraud and drug diversion and improve tracking and data collection, the CARE Act mandates that by 2020 all prescribers must convert to secure electronic prescriptions and cease the use of oral and paper prescriptions when prescribing controlled substances.

  • Workers Compensation Formulary

The CARE Act authorizes the Department of Industrial Accidents, which administers the Commonwealth’s workers compensation insurance program, to develop an approved drug formulary to regulate the use of opioids in treating workplace injuries.

  • Prescribing Commissions

The CARE Act creates a commission for recommendations on appropriate prescribing practices for the most common oral and advanced dental procedures, including recommendations on approving the use of standardized, prepackaged doses of commonly issued prescription drugs to reduce the likelihood of overprescribing.

The CARE Act also creates a commission that will review and recommend non-opioid and non-pharmacological pain management strategies. The commission is required to develop a plan for insurers to provide adequate coverage and access to these alternative pain management strategies.

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