A Guide to State Opioid Prescribing Policies

Pain Policy and Regulation: New Mexico

New Mexico Pain Relief Act

• Definitions
  
  

  As used in the Pain Relief Act:

  1. "Accepted guideline" means a care or practice guideline for pain management developed by the American Pain Society, the American Geriatric Society, the Agency for Health Care Policy, the national cancer pain initiatives, or any other nationally recognized clinical or professional association, specialty society, or government-sponsored agency that has developed practice or care guidelines based on original research or on review of existing research and expert opinion whose guidelines have been accepted by the New Mexico Board of Medical Examiners;
  2. "Board" means the licensing board of a healthcare provider;
  3. "Clinical expert" means a person who by reason of specialized education or substantial relevant experience in pain management has knowledge regarding current standards, practices, and guidelines;
  4. "Disciplinary action" means any formal action taken by a Board against a healthcare provider on a finding of probable cause that the healthcare provider has engaged in conduct that violates the Medical Practice Act;
  5. "Healthcare provider" means a person licensed or otherwise authorized by law to provide healthcare in the ordinary course of business or practice of his or her profession and to have prescriptive authority within the limits of his or her license;
  6. "Intractable pain" means a state of pain, even if recurring, in which reasonable efforts to remove or remedy the cause of the pain have failed or have proven inadequate; and
  7. "Therapeutic purpose" means the use of pharmaceutical and nonpharmaceutical medical treatment that conforms substantially to accepted guidelines for pain management.

Disciplinary Action; Evidentiary Requirements

• No healthcare provider who prescribes, dispenses, or administers medical treatment for the purpose of relieving intractable pain and who can demonstrate by reference to an accepted guideline that his or her practice substantially complies with that guideline and with the standards of practice identified in Section 4 of the Pain Relief Act shall be subject to disciplinary action or criminal prosecution, unless the showing of substantial compliance with an accepted guideline is rebutted by clinical expert testimony. If no currently accepted guidelines are available, then rules issued by the Board may serve the function of such guidelines for purposes of the Pain Relief Act. The Board rules must conform to the intent of that act. Guidelines established primarily for purposes of coverage, payment, or reimbursement do not qualify as an "accepted guideline" when offered to limit treatment options otherwise covered within the Pain Relief Act.
• In the event that a disciplinary action or criminal prosecution is pursued, the Board or prosecutor shall produce clinical expert testimony supporting the finding or charge of violation of disciplinary standards or other legal requirements on the part of the healthcare provider. A showing of substantial compliance with an accepted guideline can only be rebutted by clinical expert testimony.
• The provisions of this section shall apply to healthcare providers in the treatment of all patients for intractable pain, regardless of the patients' prior or current chemical dependency or addiction. The Board may develop and issue rules establishing standards and procedures for the application of the Pain Relief Act to the care and treatment of chemically dependent individuals.

Disciplinary Action; Prohibitions

• Nothing in the Pain Relief Act shall prohibit discipline or prosecution of a healthcare provider for:
  1. failing to maintain complete, accurate, and current records documenting the physical examination and medical history of the patient, the basis for the clinical diagnosis of the patient, and the treatment plan for the patient;
  2. writing false or fictitious prescriptions for controlled substances scheduled in the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 or Sections 26-1-23 and 30-31-18 NMSA 1978;
  3. prescribing, administering, or dispensing pharmaceuticals in violation of the provisions of the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 or Sections 26-1-23 and 30-31-18 NMSA 1978; or
  4. diverting medications prescribed for a patient to the provider's personal use or to other persons.

Notification

• The Board shall make reasonable efforts to notify healthcare providers under its jurisdiction of the existence of the Pain Relief Act and inform any healthcare provider investigated in relation to the provider's practices in the management of pain of the existence of that act.

Scope of Act

• Nothing in the Pain Relief Act shall be construed as expanding the authorized scope of practice of healthcare providers.

Medical Board Rules for Management of Chronic Pain With Controlled Substances

• Objective: It is the position of the Board that practitioners have an obligation to treat chronic pain and that a wide variety of medicines including controlled substances and other drugs may be prescribed for that purpose. When such medicines and drugs are used, they should be prescribed in adequate doses and for appropriate lengths of time after a thorough medical evaluation has been completed.
• Definitions:
  1. "Addiction" is a neurobehavioral syndrome with genetic and environmental influences that results in psychological dependence on the use of substances for their psychic effects. It is characterized by behaviors that include one or more of the following: impaired control over drug use; compulsive use; continued use despite harm; and, craving. Physical dependence and tolerance are normal physiologic consequences of extended opioid therapy for pain and should not by themselves be considered addiction.
  2. "Chronic pain" means a pain state that is persistent and in which the cause of the pain cannot be removed or otherwise treated.
  3. "Drug abuser" means a person who takes a drug or drugs for other than legitimate medical purposes.
  4. "Pain" means an unpleasant sensory and emotional experience associated with inflammation or with actual or potential tissue damage, or described in terms of such inflammation and damage.
  5. "Physical dependence" means a state of adaptation that is manifested by a drug-specific withdrawal syndrome that can be produced by abrupt cessation, rapid dose reduction, decreasing blood level of the drug, administration of an antagonist, or a combination of these.
  6. "Tolerance" means a state of adaptation in which exposure to a drug induces changes that result in a diminution of one or more of the drug's effects over time.
• Guidelines: The following guidelines will be used by the Board to determine whether a physician's or physician assistant's prescriptive practices are consistent with the appropriate treatment of pain.
  1. The treatment of pain with various medicines and/or controlled substances is a legitimate medical practice when accomplished in the usual course of professional practice. It does not preclude treatment of patients with addiction, physical dependence, and/or tolerance who have legitimate pain. However, such patients do require very close monitoring and precise documentation.
  2. The prescribing, ordering, administering, or dispensing of controlled substances to meet the individual needs of the patient for management of chronic pain is appropriate if prescribed, ordered, administered, or dispensed in compliance with the following:
     1. A practitioner shall complete a physical examination and include an evaluation of the patient's psychological and pain status. The medical history shall include any previous history of significant pain, history of alternate treatments for pain, potential for substance abuse, coexisting disease or medical conditions, and the presence of a medical indication or contraindication against the use of controlled substances.
     2. A written treatment plan shall be developed and tailored to the individual needs of the patient, taking age, gender, culture, and ethnicity into consideration, with stated objectives by which treatment can be evaluated (eg, by degree of pain relief, improved physical and psychological function, or other accepted measure). Such a plan should include a statement of the need for further testing, consultation, referral, or use of other treatment modalities.
     3. The practitioner shall discuss the risks and benefits of using controlled substances with the patient and/or surrogate or guardian.
     4. Complete and accurate records of care provided and drugs prescribed shall be maintained. When controlled substances are prescribed, the name of the drug, quantity, prescribed dosage, and number of refills authorized should be recorded. Patients with a history of substance abuse or who are in an environment posing a high risk for misuse or diversion of drugs (eg, living with a drug abuser or living or working in a place where drugs are available) may require special consideration.
     5. The management of patients needing chronic pain control requires monitoring by the attending and/or the consulting practitioner. In addition, a practitioner should consult, when indicated by the patient's condition, with healthcare professionals who are experienced (by the length and type of their practice) in the area of chronic pain control; such professionals need not be those who specialize in pain control. Consultation should occur early in the course of long-term treatment and at reasonable intervals during continued long-term treatment for assessment of benefit and need. It is especially important, when treating patients who are addicted to drugs for legitimate pain apart from their addiction, to obtain a contractual agreement with the patient, appropriate consultation, and to set a schedule for reevaluation at appropriate time intervals.
     6. If, in a practitioner's medical opinion, a patient is seeking pain medication for reasons that are not medically justified, the practitioner is not required to prescribe controlled substances for the patient.
  3. The Board will evaluate the quality of care on the following basis: appropriate diagnosis and evaluation; appropriate medical indication for the treatment prescribed; documented change or persistence of the recognized medical indication; and follow-up evaluation with appropriate continuity of care. The Board will judge the validity of prescribing based on the practitioner's treatment of the patient and on available documentation rather than on the quantity and chronicity of prescribing. The goal is to control the patient's pain for its duration while effectively addressing other aspects of the patient's functioning, including physical-, psychological-, social-, and work-related factors.
  4. The Board will review both overprescription and underprescription of pain medications using the same standard of patient protection as a guiding principle.
  5. A practitioner who appropriately prescribes controlled substances and who follows this section would be considered to be in compliance with this rule and would not be subject to discipline by the Board unless there is some violation of the Medical Practice Act or Board rules.
• Physician, Physician Assistants, and Anesthesiologist Assistants Treated With Opiates: Physicians, physician assistants, or anesthesiologist assistants who have chronic pain and are being treated with opiates shall be evaluated by a pain clinic or by an MD or DO pain specialist, and must have a complete, independent neuropsychological evaluation, as well as clearance from their physician, before returning to or continuing in practice. In addition, they must remain under the care of a physician for as long as they remain on opiates while continuing in practice.

Joint Board Policy Statement

• Pain management is a significant issue in healthcare today. Estimates of Americans experiencing pain range from 50 to 75 million persons annually. Thirty to fifty percent of patients undergoing cancer treatment experience pain. The effects of unmanaged pain are serious and wide-ranging and yet pain is widely undertreated. Untreated or inadequately treated pain has an impact on patients' quality of life and increases healthcare costs. Factors cited in the undertreatment of pain include concerns about causing addiction or tolerance, inadequate knowledge of controlled substances and pain management, fear of scrutiny and discipline by regulatory agencies, inadequate assessment, and patient reluctance to report pain or to take pain medications.
• The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) guidelines on pain management state, "Patients have the right to appropriate assessment and management of pain." (Emphasis added). It is, therefore, incumbent upon New Mexico physicians, nurses, and pharmacists to work cooperatively and effectively to address the dimensions of pain and to provide maximum pain relief with minimal side effects. Towards that end, and in the interest of public protection, the New Mexico Boards of Medical Practice, Nursing and Pharmacy issue the following joint statement.
• To effectively assist patients in the management of chronic pain, healthcare professionals should, within their scope of practice:
  • Consistently and thoroughly assess all patients for pain. If the patient reports untreated pain or is unhappy with current pain treatment, the pain should be evaluated with a complete history and physical examination with laboratory and diagnostic testing, if indicated;
  • Work collaboratively in a multidisciplinary approach to develop and implement an individualized, written treatment plan using pharmacologic and nonpharmacologic interventions with specific objectives for the patient;
  • Regularly evaluate the effectiveness of the treatment plan, using a consistent, developmentally appropriate, standardized pain scale, and make adjustments as needed;
  • Document all aspects of pain assessment and care in a timely, clear, consistent, complete, and accurate manner;
  • Anticipate and effectively manage side effects of pain medications;
  • Provide adequate and culturally appropriate information to patients and family members or caregivers to support patients in making informed decisions and participate in the management of their pain;
  • Be aware of the risks for diversion and abuse of controlled substances and take appropriate steps to minimize these risks;
  • Recognize that individuals with chemical dependency may experience pain requiring medications, including opioids, and may require specialized management;
  • Consult with and refer patients to other providers when appropriate;
  • Develop organization-appropriate and evidence-based policies and protocols for pain management;
  • Become and remain knowledgeable regarding effective pain management;
  • Comply with all state and federal laws and regulations regarding prescribing, dispensing, and administering legend drugs, including controlled substances.

Prescriptions

• A prescription for a controlled substance may be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice, and who is registered under the Controlled Substances Act. Responsibility for the proper prescribing and dispensing of controlled substances is on the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.
  • A prescription may not be issued for a practitioner to obtain controlled substances for the purpose of general dispensing to patients.
  • A pharmacy employee must verify the identity of the patient or the patient's representative before a new prescription for a controlled substance listed in schedule II, III, IV is delivered. Acceptable identification means a state-issued driver's license, including photo, or other government-issued photo identification. The identification number of the government-issued identification and the name imprinted on that identification must be recorded in a manner to be determined by a written policy developed by the pharmacist-in-charge. Exceptions are a new controlled substance prescription filled for a patient known to the pharmacist or pharmacist intern, whose identification has already been documented in a manner determined by a written policy developed by the pharmacist-in-charge; a controlled substance prescription filled for home delivery; or a controlled substance prescription filled for and delivered to a licensed facility.

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Author Information

David Brushwood, RPh, JD, Professor, University of Florida College of Pharmacy, Gainesville

Disclosure: David B. Brushwood, RPh, JD, has disclosed no relevant financial relationships.