I 

116TH CONGRESS 

1ST SESSION H. R. 5172 

To amend title XVIII of the Social Security Act to combat the opioid crisis 

by promoting access to non-opioid treatments in the hospital outpatient 

setting. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 19, 2019 

Ms. SEWELL of Alabama (for herself, Mr. MCKINLEY, and Mr. BRINDISI) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and 

Means, for a period to be subsequently determined by the Speaker, in 

each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend title XVIII of the Social Security Act to combat 

the opioid crisis by promoting access to non-opioid treatments in the hospital outpatient setting. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Non-Opioids Prevent 

5 Addiction In the Nation Act’’ or the ‘‘NOPAIN Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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1 (1) The United States is undergoing an epi2 demic of addiction and deaths caused by prescription 

3 drug overdoses. According to the Centers for Disease 

4 Control and Prevention (CDC), opioids are the main 

5 driver of drug overdose deaths accounting for 47,600 

6 overdose deaths in 2017. Every day, over 130 people 

7 die in the United States from opioid overdoses. 

8 (2) Additionally, the CDC estimates that the 

9 economic costs associated with prescription opioid 

10 misuse exceeds $78 billion annually. These costs in11 clude those associated with healthcare, lost produc12 tivity, addiction treatment, and the criminal justice 

13 system. 

14 (3) Certain non-opioid treatments and services 

15 can be successful in replacing, delaying, or reducing 

16 the use of opioids to treat postsurgical pain. 

17 (4) The Substance Use-Disorder Prevention 

18 that Promotes Opioid Recovery and Treatment 

19 (SUPPORT) for Patients and Communities Act was 

20 enacted on October 24, 2018. This law requires that 

21 CMS review payments under Medicare’s Outpatient 

22 Prospective Payment System (OPPS) and ASC Pay23 ment System with a goal of ensuring there are not 

24 financial incentives to use opioids instead of non25 opioid alternatives. Additionally, the bill requires 


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1 CMS to ‘‘consider the extent to which payment pol2 icy revisions (such as the creation of additional 

3 groups of covered OPD services to classify sepa4 rately those procedures that utilize opioids and non5 opioid alternatives for pain management) would re6 duce payment incentives to use opioids instead of 

7 non-opioid alternatives for pain management.’’ 

8 (5) Pursuant to section 319 of the Public 

9 Health Service Act, the Acting Secretary for the 

10 U.S. Department of Health & Human Services de11 termined on October 26, 2017, that a public health 

12 emergency exists as a result of the consequences of 

13 the opioid crisis, and the Secretary renewed this de14 termination on October 16, 2019. 

15 (6) The President’s Commission on Combating 

16 Drug Addiction and the Opioid Crisis was estab17 lished on March 29, 2017. The Commission rec18 ommended that CMS examine payment policies for 

19 certain drugs that function specifically as non-opioid 

20 pain management treatments. According to the 

21 Commission’s report, ‘‘. . . the current CMS pay22 ment policy for ‘supplies’ related to surgical proce23 dures creates unintended incentives to prescribe 

24 opioid medications to patients for postsurgical pain 

25 instead of administering non-opioid pain medicaVerDate Sep 11 2014 01:25 Nov 28, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5172.IH H5172

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1 tions. Under current policies, CMS provides one all2 inclusive bundled payment to hospitals for all ‘sur3 gical supplies,’ which includes hospital administered 

4 drug products intended to manage patients’ post5 surgical pain. This policy results in the hospitals re6 ceiving the same fixed fee from Medicare whether 

7 the surgeon administers a non-opioid medication or 

8 not.’’ 

9 (7) The Pain Management Best Practices 

10 Inter-Agency Task Force was authorized by section 

11 101 of the Comprehensive Addiction and Recovery 

12 Act of 2016. The Task Force consisted of Federal 

13 agency representatives as well as experts and rep14 resentatives from a broad group of invested stake15 holders and was convened to issue recommendations 

16 for identifying and addressing gaps and inconsist17 encies for managing acute pain. In the Task Force’s 

18 Final Report on Best Practices: Updates, Gaps, In19 consistencies and Recommendations, the following 

20 gap was identified: ‘‘Multimodal, non-opioid thera21 pies are underutilized in the perioperative, inflam22 matory, musculoskeletal, and neuropathic injury set23 tings.’’ The report also states that ‘‘Non-opioids 

24 should be used as first-line therapy whenever cliniVerDate Sep 11 2014 23:12 Nov 27, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5172.IH H5172

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1 cally appropriate in the inpatient and outpatient set2 tings.’’ 

3 (8) Research shows that despite ongoing efforts 

4 to end the opioid crisis, patients continue to receive 

5 large quantities of opioids to treat postsurgical pain. 

6 One 2018 study showed that 12 percent of patients 

7 who had a soft tissue or orthopedic operation in the 

8 year prior reported that they had become addicted 

9 or dependent on opioids. Further research shows 

10 that patients receiving an opioid prescription after 

11 short-stay surgeries have a 44 percent increased risk 

12 of opioid use. 

13 (9) CMS has reiterated its position in rule14 making that it is appropriate to pay separately for 

15 certain non-opioid pain management treatments that 

16 function as surgical supplies in the ASC setting, it 

17 is clear that direction from Congress is necessary to 

18 modify Medicare’s outpatient policies with the goal 

19 of encouraging access to non-opioid treatments and 

20 services to address the opioid crisis. 

21 SEC. 3. ACCESS TO NON-OPIOID TREATMENTS FOR PAIN. 

22 (a) IN GENERAL.—Section 1833(t) of the Social Se23 curity Act (42 U.S.C. 1395l(t)) is amended— 

24 (1) in paragraph (2)(E), by inserting ‘‘and sep25 arate payments for non-opioid treatments under 


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1 paragraph (16)(G),’’ after ‘‘payments under para2 graph (6)’’; and 

3 (2) in paragraph (16), by adding at the end the 

4 following new subparagraph: 

5 ‘‘(G) ACCESS TO NON-OPIOID TREATMENTS

6 FOR PAIN.— 

7 ‘‘(i) IN GENERAL.—Notwithstanding 

8 any other provision of this subsection, with 

9 respect to a covered OPD service (or group 

10 of services) furnished on or after January 

11 1, 2020, and before January 1, 2025, the 

12 Secretary shall not package, and shall 

13 make a separate payment as specified in 

14 clause (ii) for, a non-opioid treatment (as 

15 defined in clause (iii)) furnished as part of 

16 such service (or group of services). 

17 ‘‘(ii) AMOUNT OF PAYMENT.—The 

18 amount of the payment specified in this 

19 clause is, with respect to a non-opioid 

20 treatment that is— 

21 ‘‘(I) a drug or biological product, 

22 the amount of payment for such drug 

23 or biological determined under section 

24 1847A; or 


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1 ‘‘(II) a medical device, the 

2 amount of the hospital’s charges for 

3 the device, adjusted to cost. 

4 ‘‘(iii) DEFINITION OF NON-OPIOID

5 TREATMENT.—A ‘non-opioid treatment’ 

6 means— 

7 ‘‘(I) a drug or biological product 

8 that is indicated to produce analgesia 

9 without acting upon the body’s opioid 

10 receptors; or 

11 ‘‘(II) an implantable, reusable, or 

12 disposable medical device cleared or 

13 approved by the Administrator for 

14 Food and Drugs for the intended use 

15 of managing or treating pain; 

16 that has demonstrated the ability to re17 place or reduce opioid consumption in a 

18 clinical trial or through clinical data pub19 lished in a peer-reviewed journal, as deter20 mined by the Secretary.’’. 

21 (b) AMBULATORY SURGICAL CENTER PAYMENT SYS22 TEM.—Section 1833(i)(2)(D) of the Social Security Act 

23 (42 U.S.C. 1395l(i)(2)(D)) is amended— 

24 (1) by aligning the margins of clause (v) with 

25 the margins of clause (iv); 


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1 (2) by redesignating clause (vi) as clause (vii); 

2 and 

3 (3) by inserting after clause (v) the following 

4 new clause: 

5 ‘‘(vi) In the case of surgical services 

6 furnished on or after January 1, 2020, and 

7 before January 1, 2025, the payment sys8 tem described in clause (i) shall provide for 

9 a separate payment for a non-opioid treat10 ment (as defined in clause (iii) of sub11 section (t)(16)(G)) furnished as part of 

12 such services in the amount specified in 

13 clause (ii) of such subsection.’’. 

14 (c) EVALUATION OF THERAPEUTIC SERVICES FOR

15 PAIN MANAGEMENT.— 

16 (1) REPORT TO CONGRESS.—Not later than 1 

17 year after the date of the enactment of this Act, the 

18 Secretary of Health and Human Services (in this 

19 subsection referred to as the ‘‘Secretary’’), acting 

20 through the Administrator of the Centers for Medi21 care & Medicaid Services, shall submit to Congress 

22 a report identifying— 

23 (A) limitations, gaps, barriers to access, or 

24 deficits in Medicare coverage or reimbursement 

25 for restorative therapies, behavioral approaches, 


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1 and complementary and integrative health serv2 ices that are identified in the Pain Management 

3 Best Practices Inter-Agency Task Force Report 

4 and that have demonstrated the ability to re5 place or reduce opioid consumption; and 

6 (B) recommendations to address the limi7 tations, gaps, barriers to access, or deficits 

8 identified under subparagraph (A) to improve 

9 Medicare coverage and reimbursement for such 

10 therapies, approaches, and services. 

11 (2) PUBLIC CONSULTATION.—In developing the 

12 report described in paragraph (1), the Secretary 

13 shall consult with relevant stakeholders as deter14 mined appropriate by the Secretary. 

15 (3) EXCLUSIVE TREATMENT.—Any drug, bio16 logical product, or medical device that is a non17 opioid treatment (as defined in section 

18 1833(t)(16)(G)(iii) of the Social Security Act, as 

19 added by subsection (a)) shall not be considered a 

20 therapeutic service for the purpose of the report de21 scribed in paragraph (1). 

Æ 


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