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) in-
troduced the following bill; which was referred to the Committee on En-
ergy 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 jurisdic-
tion 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 treat-
ments in the hospital outpatient setting. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Non-Opioids Prevent 
Addiction In the Nation Act’’ or the ‘‘NOPAIN Act’’. 
SEC. 2. FINDINGS. 
Congress finds the following: 
VerDate Sep 11 2014 
20:52 Dec 02, 2019
Jkt 099200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H5172.IH
H5172
jbell on DSKJLSW7X2PROD with BILLS
(1) The United States is undergoing an epi-
demic of addiction and deaths caused by prescription 
drug overdoses. According to the Centers for Disease 
Control and Prevention (CDC), opioids are the main 
driver of drug overdose deaths accounting for 47,600 
overdose deaths in 2017. Every day, over 130 people 
die in the United States from opioid overdoses. 
(2) Additionally, the CDC estimates that the 
economic costs associated with prescription opioid 
misuse exceeds $78 billion annually. These costs in-
clude those associated with healthcare, lost produc-
tivity, addiction treatment, and the criminal justice 
system. 
(3) Certain non-opioid treatments and services 
can be successful in replacing, delaying, or reducing 
the use of opioids to treat postsurgical pain. 
(4) The Substance Use-Disorder Prevention 
that Promotes Opioid Recovery and Treatment 
(SUPPORT) for Patients and Communities Act was 
enacted on October 24, 2018. This law requires that 
CMS review payments under Medicare’s Outpatient 
Prospective Payment System (OPPS) and ASC Pay-
ment System with a goal of ensuring there are not 
financial incentives to use opioids instead of non- 
opioid alternatives. Additionally, the bill requires 
VerDate Sep 11 2014 
23:12 Nov 27, 2019
Jkt 099200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H5172.IH
H5172
jbell on DSKJLSW7X2PROD with BILLS
CMS to ‘‘consider the extent to which payment pol-
icy revisions (such as the creation of additional 
groups of covered OPD services to classify sepa-
rately those procedures that utilize opioids and non- 
opioid alternatives for pain management) would re-
duce payment incentives to use opioids instead of 
non-opioid alternatives for pain management.’’ 
(5) Pursuant to section 319 of the Public 
Health Service Act, the Acting Secretary for the 
U.S. Department of Health & Human Services de-
termined on October 26, 2017, that a public health 
emergency exists as a result of the consequences of 
the opioid crisis, and the Secretary renewed this de-
termination on October 16, 2019. 
(6) The President’s Commission on Combating 
Drug Addiction and the Opioid Crisis was estab-
lished on March 29, 2017. The Commission rec-
ommended that CMS examine payment policies for 
certain drugs that function specifically as non-opioid 
pain management treatments. According to the 
Commission’s report, ‘‘. . . the current CMS pay-
ment policy for ‘supplies’ related to surgical proce-
dures creates unintended incentives to prescribe 
opioid medications to patients for postsurgical pain 
instead of administering non-opioid pain medica-
VerDate Sep 11 2014 
01:25 Nov 28, 2019
Jkt 099200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H5172.IH
H5172
jbell on DSKJLSW7X2PROD with BILLS
tions. Under current policies, CMS provides one all- 
inclusive bundled payment to hospitals for all ‘sur-
gical supplies,’ which includes hospital administered 
drug products intended to manage patients’ post-
surgical pain. This policy results in the hospitals re-
ceiving the same fixed fee from Medicare whether 
the surgeon administers a non-opioid medication or 
not.’’ 
(7) The Pain Management Best Practices 
Inter-Agency Task Force was authorized by section 
101 of the Comprehensive Addiction and Recovery 
Act of 2016. The Task Force consisted of Federal 
agency representatives as well as experts and rep-
resentatives from a broad group of invested stake-
holders and was convened to issue recommendations 
for identifying and addressing gaps and inconsist-
encies for managing acute pain. In the Task Force’s 
Final Report on Best Practices: Updates, Gaps, In-
consistencies and Recommendations, the following 
gap was identified: ‘‘Multimodal, non-opioid thera-
pies are underutilized in the perioperative, inflam-
matory, musculoskeletal, and neuropathic injury set-
tings.’’ The report also states that ‘‘Non-opioids 
should be used as first-line therapy whenever clini-
VerDate Sep 11 2014 
23:12 Nov 27, 2019
Jkt 099200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\H5172.IH
H5172
jbell on DSKJLSW7X2PROD with BILLS
cally appropriate in the inpatient and outpatient set-
tings.’’ 
(8) Research shows that despite ongoing efforts 
to end the opioid crisis, patients continue to receive 
large quantities of opioids to treat postsurgical pain. 
One 2018 study showed that 12 percent of patients 
who had a soft tissue or orthopedic operation in the 
year prior reported that they had become addicted 
or dependent on opioids. Further research shows 
that patients receiving an opioid prescription after 
short-stay surgeries have a 44 percent increased risk 
of opioid use. 
(9) CMS has reiterated its position in rule-
making that it is appropriate to pay separately for 
certain non-opioid pain management treatments that 
function as surgical supplies in the ASC setting, it 
is clear that direction from Congress is necessary to 
modify Medicare’s outpatient policies with the goal 
of encouraging access to non-opioid treatments and 
services to address the opioid crisis. 
SEC. 3. ACCESS TO NON-OPIOID TREATMENTS FOR PAIN. 
(a) IN GENERAL.—Section 1833(t) of the Social Se-
curity Act (42 U.S.C. 1395l(t)) is amended— 
(1) in paragraph (2)(E), by inserting ‘‘and sep-
arate payments for non-opioid treatments under 
VerDate Sep 11 2014 
23:12 Nov 27, 2019
Jkt 099200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\H5172.IH
H5172
jbell on DSKJLSW7X2PROD with BILLS
paragraph (16)(G),’’ after ‘‘payments under para-
graph (6)’’; and 
(2) in paragraph (16), by adding at the end the 
following new subparagraph: 
‘‘(G) ACCESS TO NON-OPIOID TREATMENTS 
FOR PAIN.— 
‘‘(i) IN
GENERAL.—Notwithstanding 
any other provision of this subsection, with 
respect to a covered OPD service (or group 
of services) furnished on or after January 
1, 2020, and before January 1, 2025, the 
Secretary shall not package, and shall 
make a separate payment as specified in 
clause (ii) for, a non-opioid treatment (as 
defined in clause (iii)) furnished as part of 
such service (or group of services). 
‘‘(ii) AMOUNT
OF
PAYMENT.—The 
amount of the payment specified in this 
clause is, with respect to a non-opioid 
treatment that is— 
‘‘(I) a drug or biological product, 
the amount of payment for such drug 
or biological determined under section 
1847A; or 
VerDate Sep 11 2014 
23:12 Nov 27, 2019
Jkt 099200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H5172.IH
H5172
jbell on DSKJLSW7X2PROD with BILLS
‘‘(II) 
a 
medical 
device, 
the 
amount of the hospital’s charges for 
the device, adjusted to cost. 
‘‘(iii) DEFINITION
OF
NON-OPIOID 
TREATMENT.—A 
‘non-opioid 
treatment’ 
means— 
‘‘(I) a drug or biological product 
that is indicated to produce analgesia 
without acting upon the body’s opioid 
receptors; or 
‘‘(II) an implantable, reusable, or 
disposable medical device cleared or 
approved by the Administrator for 
Food and Drugs for the intended use 
of managing or treating pain; 
that has demonstrated the ability to re-
place or reduce opioid consumption in a 
clinical trial or through clinical data pub-
lished in a peer-reviewed journal, as deter-
mined by the Secretary.’’. 
(b) AMBULATORY SURGICAL CENTER PAYMENT SYS-
TEM.—Section 1833(i)(2)(D) of the Social Security Act 
(42 U.S.C. 1395l(i)(2)(D)) is amended— 
(1) by aligning the margins of clause (v) with 
the margins of clause (iv); 
VerDate Sep 11 2014 
23:12 Nov 27, 2019
Jkt 099200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H5172.IH
H5172
jbell on DSKJLSW7X2PROD with BILLS