Nevada Healthcare Providers Treatment of Pain

Where we are; How we got here; Where are we going?

Written By:

Joe Hardy, MD

Mayor of Boulder City, Nevada

Nevada State Senate Legislator Hall of Fame

Weldon (Don) Havins, MD, JD

Professor Emeritus, Ophthalmology and Medical Jurisprudence

Touro University Nevada

This article will first review the current Nevada statutes and regulations governing the treatment of pain with controlled substances, followed by a history of Nevada laws governing prescriptions for pain medication. Then we’ll speculate as to where Nevada law foreseeably may develop to comply with most current guideline recommendations of the CDC (Center for Disease Control).

Currently, licensees of six professional Boards, who hold a Nevada Board of Pharmacy Controlled Substance Certificate, are subject to these laws. Those Boards are: the Board of Medical Examiners, the Osteopathic Medicine Board, the Dental Board, the Nursing Board, the Optometry Board, and the Podiatry Board. Licensees of the Medical Board and the Board of Osteopathic Medicine have a statutory duty to report a fellow licensee in violation of a statute or regulation to the licensing Board within 30 days of knowing (or having reason to know) of the violation. This mandate includes violations of statutes and regulations governing the prescription of controlled substances for the treatment of pain. Violation of this reporting requirement by the licensee subjects the licensee to professional discipline for “failure to make a report required by law.”[i]

All licensees holding a valid Nevada Board of Pharmacy Controlled Substance Certificate (NV BOP Certificate) must complete 2 hours of training relating to the misuse and abuse of Controlled Substances, the prescribing of opioids or addiction during each relicensure period.[ii]

For patients being treated for cancer or sickle cell disease, or patients receiving hospice or palliative care, treatment of pain with controlled substances only requires that the patient be a bone fide patient[iii], the Prescription Monitoring Database (PMP) be queried, and an informed consent obtained to prescribe controlled substances for pain. The PMP may be obtained after the prescription is issued if obtaining the PMP information would unreasonably delay care of the patient.[iv]

Otherwise, before an initial controlled substance prescription can be issued, and at least every 90 days thereafter, the practitioner shall review the PMP report, and not issue another prescription for the same controlled substance for ongoing treatment by another practitioner, unless the practitioner determines that issuing the prescription is “medically necessary.”[v]

Each prescription for Controlled Substances II, III, and IV must include: the DEA number of the prescriber; the ICD diagnosis; and the fewest number of days to consume the quantity of controlled substance prescribed, and the number of refills.[vi] Prescriptions for controlled substances must be electronically transmitted to the pharmacy incompliance with the statutes and regulations of the Pharmacy Board.[vii]

If the initial prescription for the controlled substance is for the treatment of pain, a bone fide relationship must exist between the patient and the practitioner. This means the patient was examined by the practitioner in person, electronically, telephonically or by fiber optics, including through telehealth, by the prescribing practitioner within 6 months immediately preceding the date of the prescription.[viii] Before issuing the prescription for controlled substance for the treatment of pain, the practitioner must establish a preliminary diagnosis of the patient and a treatment plan tailored toward the treatment of the patient’s pain, and the cause of that pain, The patient’s medical record must document the reasons for prescribing the controlled substance instead an alternative treatment that does not require the use of a controlled substance.[ix]

Before issuing the initial prescription, the practitioner must obtain and review a relevant medical history, and conduct a physical exam directed to the source of the patient’s pain (within the scope of practice of the practitioner). The practitioner must access the mental health and risk of abuse, dependency and addiction of the patient using “methods supported by peer-reviewed scientific research and validated by a nationally recognized organization”. (Touro University Clinic uses the Beck’s Depression Inventory and the POMI tests, each of which can be download from the internet). If the prescription is for a quantity intended to be used over 30 days, the practitioner must make a good faith effort to obtain and review any medical records from any other provider who has provided care to the patient that is relevant to the prescription.[x] The Board of Pharmacy has determined that the practitioner can consider whether the benefit of prescribing the controlled substance without obtain the medical record outweighs the risk of doing so.[xi] The practitioner making this judgment would be prudent to include this judgment in the patient’s medical record.

The practitioner must obtain an informed consent to use a controlled substance for the treatment of pain from a person who can legally provide such consent.[xii] The informed consent, which now can be obtained verbally, must include, where applicable, information concerning the following:

The potential risks and benefits of treatment using the controlled substance
Proper use of the controlled substance
Any alternative means of treatment symptoms of the patient
The important provisions of the treatment plan established for the patient
The risks of dependency, addiction and overdose during treatment using the controlled substance
Methods to safely store and legally dispose of the controlled substance
The manner in which the practitioner will address requests for refills of the prescription
if the patient is a woman between 15 and 45, the risks to a fetus of chronic exposure to a controlled substance during pregnancy, and the risks of fetal dependency on the controlled substance and neonatal abstinence syndrome
If the controlled substance is an opioid, the availability of an opioid antagonist without a prescription. If the patient is an unemancipated minor, the risks that the minor will abuse and misuse the controlled substance or divert the controlled substance for use by another person, and the ways to detect such abuse, misuse or diversion.[xiii]

For the treatment of acute pain, unless the practitioner determines that the non-conforming prescription is medically necessary, a practitioner shall not prescribe the controlled substance for more than 14 days If the controlled substance is an opioid, and the patient has never been issued an opioid or it has been more than 19 days since the patient consumed an opioid, the prescription may not exceed 90 MMEs per day.[xiv] The practitioner may not issue more than one additional prescription that increases the dose of the controlled substance unless the practitioner meets with the patient, in person of via telehealth, to reevaluate the treatment plan.[xv]

If treating pain for more than 30 days using a controlled substance, a prescription medication agreement must be obtained. The agreement must include:

The goals of the treatment of the patient
Consent of the patient to testing to monitor drug use when deemed medically necessary by the practitioner
A requirement that the patient take the controlled substance only as prescribed
A prohibition on sharing medication with any other person
A requirement that the patient inform the practitioner:
1. Of any other controlled substance prescribed to or taken by the patient
2. Whether the patient drinks alcohol or uses marijuana or any other cannabinoid while using the controlled substance
3. Whether the patient has been treated for side effects or complications related to the use of the controlled substance, including whether the patient has experienced an overdose, and
4. Each State in which the patient has previously resided or had a prescription for a controlled substance filled
Authorization of the practitioner to conduct random counts of the amount of the controlled substance in the possession of the patient
The reason the practitioner may change or discontinue treatment of the patient using the controlled substance, and
Any other requirements that the practitioner may impose.[xvi]

For treating pain more than 90 days with a controlled substance, the practitioner must complete an assessment of risk for abuse (Touro uses the COMM test), conduct an investigation to determine an evidenced-based diagnosis for the cause of the pain, meet with the patient to determine whether to continue treatment using the controlled substance, and if the patient has been prescribed more than 90 MMEs of an opioid for 90 days or longer, consider referring to a specialist. If the practitioner decides to continue to prescribe a dose of 90 MMEs or greater per day, the practitioner must document on the patient’s medical record a revised treatment plan which must include an assessment of the increased risk for adverse outcomes.[xvii]

All these requirements are the product of legislative enactments contained in AB474 (2019) and SB239 (2021).

[i] NRS 630.3062; NRS 633.511(1)

[ii] NRS 630.2535; NRS 631.344; NRS 632.2375; NRS 633.473; NRS 635.116; NRS 636.2881

[iii] NRS 639.235

[iv] NRS 639.23507

[v] NRS 639.23507

[vi] NRS 453.162; NRS 639.2353

[vii] NRS 639.23535; NAC 639.7105

[viii] NRS 639.235

[ix] NRS 639.23911

[x] NRS 639.23911; NRS 639.23912

[xi] NAC 639.8343

[xii] NRS 639.239112; NRS 639.23912

[xiii] NRS 639.23911; NRS 639.23912

[xiv] NRS 639.2391

[xv] NRS 639.23911

[xvi] NRS 639.23914

[xvii] NRS 639.23913

How we got here

Opium and opiates have been used to relieve pain since at least 3500 BCE when the humans began using the writing to communicate and the poppy plant containing natural opium was mentioned. Opiates have long been recognized as an effective pain reliever. Since recorded time, it has been known that excessive amounts of opiates can cause death by respiratory depression.

In Nevada, opiate deaths were recognized as “epidemic” about 2012. Physicians were made aware of excessive prescribing by some practitioners, and educational efforts were directed to reduce the amounts of opiates prescribed. The Federation of State Medical Boards published their “Model Guidelines for the Use of Opioid Analgesics in the Treatment of Chronic Pain” in 2015. The Nevada Board of Medical Examiners adopted by reference this Model Policy that same year. SB459 passed in 2015. This Bill mandated practitioner’s to query of the PMP (Prescription Monitoring Program) database prior to the initial prescription for opiates, but permitted an exception for opiates prescribed for acute pain for up to 7 days.

In August of 2016, Governor Sandoval sponsored an Opioid Summit in Las Vegas wherein he presented the slide below during his talk. This slide demonstrates a 38% linear decrease in the number of deaths in Nevada from opioids from 2011 to 2015. It would appear the issue of presumed excessive opiate prescribing was being addressed. The homily of “better being the enemy of good” comes to mind.

In early 2016, the CDC published updated Guidelines for Prescribing Opioids for Chronic Pain. These Guidelines provided “recommendations for primary care clinicians who are prescribing opioids for chronic pain outside of active cancer treatment, palliative care and end-of-life care.

In April 2017, the Federation of State Medical Boards (FSMB) published their updated “Guidelines for the Chronic Use of Opioid Analgesics.”[i] The preamble states “the Guidelines are not intended for the treatment of acute pain, acute pain management in the perioperative setting, emergency care, cancer-related pain, palliative care, or the end-of-life care.”

Notwithstanding that admonition, three Nevada employees, only one of whom was a physician, drafted a Bill (AB474) to statutorily restrict the prescription of all controlled substances, including the treatment of pain, acute, intermediate, or chronic. The Bill, AB474, was directly contrary to the goals provided in the Federation of State Medical Boards Guidelines in that it applied to all practitioners (rather than to just primary care practitioners), prescribing controlled substances (not just for chronic prescriptions of opioids for pain). AB474 was the product of meetings held in secret. Later meetings permitted a few physicians to comment on the proposed legislation. One who attended those sessions related that most of the suggestions for revisions were denied. The Bill was then introduced in the Assembly as the “Governor’s Bill.” AB 474 passed both Houses, and the Governor signed the Bill.

[i] Federation of State Medical Boards, Guidelines for the Chronic Use of Opioid Analgesics, adopted as policy of the Federation of State Medical Boards, April 2017.

The effect of AB474 on prescription frequency (see black down arrow above) was significant, mostly from a decrease in < 30 days (acute pain) prescriptions. The red line demonstrated the number of deaths in Clark County coincidently rising, mostly from illicit fentanyl and heroin.[i] The deaths from illicit fentanyl has continued to accelerate. Thus, AB474 resulted in fewer prescriptions of opioids to treat pain and, coincidently, more and more Nevadans succumbing from illicit fentanyl opioids. The putative expectation that AB474 would result in fewer deaths from opioid overdoses has not yet been seen.

The FDA has attempted to address the opioid addiction problem, initially, by offering a “waiver” to treat patients addicted to opioids using buprenorphine,. This initial waiver required physicians to complete 8 hours of training before being permitted to treat a limited number of opioid addicted patients annually. When this didn’t appear to address the lack of physicians available to treat addicted patients, the FDA added Nurse Practitioners and Physician Assistants to those who could obtain the waiver. Nurse practitioners and Physician Assistants were required to complete 24 hours of training. Then, the FDA did away with the educational mandates required to obtain the waiver and just required completion of an application to obtain the waiver. A couple months after this, the FDA did away with the waiver requirement altogether.

Currently, the FDA is following new federal law requiring 8 hours of courses on addiction to obtain or renew a practitioners’ DEA controlled substances certificate, aka the MATE mandate. Healthcare providers can now treat an unlimited number of opioid addicted patients with buprenorphine. Nevada recently passed what is commonly known as the SBIRT law (screening, brief intervention, referral for treatment). This 2 hours CME credit must be completed to renew one’s professional license to practice in Nevada for relicensure after Jan 1, 2024. It appears this 2 hour continuing education requirement applies to those with a DEA Controlled Substance Certificate. What effect this will have on practitioners choosing to not renew their Controlled Substance certificate, and what effect this will have on the practice of medicine in Nevada, is unknown. The MATE mandate has already been implemented. To renew a DEA controlled substance certificate after June 2023, one must attest on the application that the 8 hours of training has been completed.

[i] NV Opioid Dashboard. Nevada Opioid Overdose Surveillance Dashboard. https://opioid.snhd.org/. Accessed July 11, 2019 This graph was taken from two Touro University Nevada osteopathic medical students. Their poster won the national American College of Legal Medicine research competition. Their manuscript was subsequently published.

Where are we going?

The CDC in 2002 published an extensive Guideline revision entitled, “CDC Clinical Guideline for Prescribing Opioids for Pain – United States, 2022.” The most current update of the CDC Guidelines includes recommendations for managing acute (duration of < 1 month), subacute pain (duration of 1-3 months), and chronic (duration of > 3 months) pain. The recommendations do not apply to pain related to sickle cell disease or cancer or to patients receiving palliative or end-of-life care. The CDC states that recommendations should not be applied as inflexible standards of care across patient populations. This extensively documented, well-reasoned Guideline culminated with 12 recommendations. The reader is encouraged to download the current 2022 CDC Guidelines and peruse them with care. The Federation of State Medical Boards has traditionally incorporated the CDC Guidelines in an update FSMB Guideline revision. Once this occurs, the FSMB Guidelines become enforceable regulations of the Nevada Board of Medical Examiners in Nevada. No non-physician professional Boards are affected by the Medical Board’s adoption of the FSMB’s Guidelines. Those Boards’ licensees are required to comply with the current mandates of AB474 and SB239. The lack of uniformity among those authorized to prescribe controlled substances for pain may require Nevada courts to resolve possible conflicts.

In July 2023 the Medical Board of California published, ”Guidelines for Prescribing Controlled Substances for Pain”. These Guidelines appear similar to the CDC Guidelines except the California Guidelines broaden the scope from Opioids to all Controlled Substances. The California Guidelines contain specific exemplars for medical records documentation for chronic pain which are less onerous than Nevada’s requirements. And the California Guidelines rely on the good-faith judgment of prescribing practitioners to deviate from the Guidelines when it is in the best interests of a particular patient.

It would seem prudent for Nevada physicians to organize and develop sound, reasonable Guidelines to present to the Interim Health Committee as an option to replace the current onerous mandates in Nevada statutes unreasonably burdening licensees and adversely affecting the humane treatment of our patients’ pain. The current Nevada mandates affecting all controlled substances seem an “over-reach,” and could reasonably be removed unless there is compelling evidence to justify continuing the mandates.

[1]

[1] NRS 630.3062; NRS 633.511(1)

[1] NRS 630.2535; NRS 631.344; NRS 632.2375; NRS 633.473; NRS 635.116; NRS 636.2881

[1] NRS 639.235

[1] NRS 639.23507

[1] NRS 453.162; NRS 639.2353

[1] NRS 639.23535; NAC 639.7105

[1] NRS 639.235

[1] NRS 639.23911

[1] NRS 639.23911; NRS 639.23912

[1] NAC 639.8343

[1] NRS 639.239112; NRS 639.23912

[1] NRS 639.23911; NRS 639.23912

[1] NRS 639.2391

[1] NRS 639.23911

[1] NRS 639.23914

[1] NRS 639.23913

[1] Federation of State Medical Boards, Guidelines for the Chronic Use of Opioid Analgesics, adopted as policy of the Federation of State Medical Boards, April 2017.

[1] NV Opioid Dashboard. Nevada Opioid Overdose Surveillance Dashboard. https://opioid.snhd.org/. Accessed July 11, 2019 This graph was taken from two Touro University Nevada osteopathic medical students. Their poster won the national American College of Legal Medicine research competition. Their manuscript was subsequently published.

Nevada Healthcare Providers Treatment of Pain