An opioid bill quietly made its way through the Florida legislature this year. House Bill 451 (HB451) passed on April 30, 2019, and was signed by the Governor on June 24. It adds a new subsection to section 456.44, Fla. Stat. regarding the prescribing of controlled substances. While there is often news in America regarding opioid constraints or complications, this law is about information and education. It became law on July 1, 2019.
Of course, for the sake of Statler and Waldorf, the subject of opioids is always of interest in workers' compensation. Reports in publications like the Insurance Journal, Business Insurance, and elsewhere provide overviews of opioid involvement in this particular community of injuries and illnesses.
HB451 includes findings. In some, but not all legislation the Florida Legislature provides findings to express context for the law. It is a method of explaining why there is a perceived need for statutory action. The findings in HB451 are worth of note:
(1) every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to refuse an opioid drug.
By inference, there is likewise then a right to accept such a drug. In pursuit of more informed decisions in this regard, the Legislature instructed the Florida Department of Health to "develop and publish" an "educational pamphlet regarding the use of non-opioid alternatives for the treatment of pain."
The purpose and point of HB451 is directed at affording the information and education a "competent adult" could use in making decisions about care and treatment. The law requires this pamphlet to include:
1. Information on available nonopioid alternatives for the treatment of pain, including nonopioid medicinal drugs or drug products and nonpharmacological therapies. 2. The advantages and disadvantages of the use of nonopioid alternatives.
Most Florida medical providers must now "inform the patient of available nonopioid alternatives for the treatment of pain." These alternatives may include other "drugs or drug products," as well as:
"interventional procedures or treatments, acupuncture, chiropractic treatments, massage therapy, physical therapy, occupational therapy, or any other appropriate therapy as determined by the health care practitioner."
That last sentence is reasonably broad ("any other"). Whether any such procedures or treatments are efficacious for a particular patient will likely depend upon both the patient and the provider of that treatment. The Legislature is not mandating any particular modality or approach but requires that patients are afforded the opportunity to learn and then decide, in most settings. This is an empowering paradigm that will require collaboration between professionals and patients.
The medical professional is required to "discuss the advantages and disadvantages of the use of nonopioid alternatives." The use of the word "discuss" is worthy of note. In It's About Communication (May 2017), this blog discusses the importance of interactive communication in litigation. The 60Q Rules require that, not a notification or directions, but a conferring. That is, a collaboration.
If anything, such an interaction is more important in the analysis of a personal decision regarding medical care than it is in the legal practice paradigm. The new law requires a "discussion." This is not a place for a physician to merely hand someone a pamphlet or "fact sheet" that may or may not be read or understood. The conversation could include such a publication, but the professional shall "discuss" alternatives with the patient. Thus, the patient will presumably be engaged. There will be interaction, statements, responses, and questions.
This should include subjects such as "whether the patient is at a high risk of, or has a history of, controlled substance abuse or misuse." It should include consideration of "the patient's personal preferences." And, it should include providing "the patient with the educational pamphlet" that is now required by law. Too often, we hear from patients that they do not perceive their medical care as being interactive. It may be that patients are under stress (fear, pain, etc.) and may tend not to recall interaction. But, it may also be that some medical providers are not interactive, patient, and conversational.
Throughout, this post uses "most" professionals. It is noteworthy that the Legislature acknowledged that there will be settings in which such interaction and patient contemplation will be impractical. Therefore, if the physician is providing "emergency services and care," this educational interaction or conversation is not required. Similarly, the law does not impose this obligation on pharmacists (it plainly says "excluding those licensed under chapter 465").
Thus, in legislation and law, there is a Florida requirement now that alternatives are identified and discussed with the patient. The statutory recognition of "self-determination" is critical and praiseworthy. Patients need to be involved in the process of deciding what is best in terms of treatment and care. It is likewise appropriate that medical providers educate and assist patients as they navigate what might be a diverse and complex variety of options. The treatment of any condition will be more likely to succeed if it is a collaboration between patient and doctor with each contributing to the ultimate outcome.
