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Physician Licensure Discipline – Narcotics and Pain Management

on Wednesday, 31 July 2013 in Health Law Alert: Erin E. Busch, Editor

Recent Nebraska disciplinary actions based on lax physician narcotic prescription practices suggest that it would be worthwhile for hospital and clinic medical staff to review their states’ published guidance on pain management practices.  Not only do lax narcotic prescription practices place licensure at risk, but disciplinary action short of license suspension can place physicians at risk of exclusion from managed care panels.   Further, lack of vigilance can expose prescribing practitioners to suspension of DEA certificates, investigation and criminal prosecution for drug diversion, and malpractice claims by patients who suffer personal injury by overdose, misuse of drugs in combination with other drugs or alcohol, or by diversion to an individual other than the intended patient.  


State licensure boards, including Iowa’s and Nebraska’s, have issued guidance on pain management to assist prescribing practitioners as they seek to balance patient needs for pain medications against the risks of addiction and diversion.  Recent licensure investigations illustrate that boards of examiners expect licensed physicians to be aware of and adhere to the published guidelines.  


The Iowa Boards of Medicine, Nursing, Pharmacy and Physician Assistants issued a Joint Statement on Pain, dated variously by the respective boards from 2007 through 2009.  The Nebraska Board of Medicine and Surgery adopted Guidelines for the Use of Controlled Substances for the Treatment of Pain on June 3, 2005, outlining the Board’s philosophy and analysis of individual cases involving pain management.  


As a starting point, prescriptions for controlled substances must be within the context of a physician-patient relationship.  Prescription of controlled substances must be based on a diagnosis and a finding of unrelieved pain.  


Both states’ guidance on narcotics prescription recommend the use of an agreement with pain management patients who are at risk of addiction, or who may intend to divert the narcotics prescribed.  Sample agreements can be found on the internet.  Generally, these agreements should outline the risks of addiction as well as patient responsibilities, anticipating and thwarting common schemes for drug diversion and/or abuse.  For example, such agreements should call for regular appointments, including urine/serum medication level testing.  The agreements should outline the circumstances under which prescriptions will be refilled or replaced (in the event of a claim of lost drugs).  The patient should agree to seek pain medications only through the prescribing physician, and to fill all prescriptions through a single pharmacy.  The agreement should include the reasons drug therapy may be discontinued.  


Medical record documentation should include in the history and physical the nature and intensity of the pain, current and past treatments, underlying or coexisting diseases or conditions, effect of the pain on the physical and psychological function and history of substance abuse.  The medical records for pain management patients should include regular reassessment for pain levels, with diagnostic tests performed as indicated.  The plan of care should include treatment objectives, and subsequent evaluations should include analysis of the patient’s progress toward those objectives.  Evidence should be gathered from family members and caregivers for the sake of objectivity.  If progress is unsatisfactory, other therapeutic modalities should be considered.  


The Nebraska guidelines direct physicians to seek consultation from other qualified physicians as necessary for additional evaluation and treatment.  Pain management of patients with a history of substance abuse may require referral to an expert in pain management.  


Recent disciplinary activity has emphasized that physicians cannot close their eyes to evidence of narcotic diversion or abuse.  If patients confess that they have been obtaining narcotics from other physicians or repeatedly claim to have lost their narcotic supplies, physicians should suspend drug therapy.  Other tell-tale signs are concerns expressed by the local pharmacist, which may signal that the patient is obtaining narcotics elsewhere, posing a threat to patient safety.  


Prescribing practitioners practicing in Iowa are in a better position to monitor these risks than those in Nebraska.  Iowa has implemented a State Prescription Drug Monitoring Program (PDMP), a statewide electronic database which collects designated data on substances dispensed in the state.  PDMPs are intended to support access to legitimate medical use of controlled substances, while at the same time identifying and deterring drug abuse and diversion.  The data can be used to identify persons addicted to controlled substances to allow intervention and proper treatment.  The PDMP allows for distribution of data from the database to individuals authorized by state law to receive the information in the practice of their professions.  


All Iowa pharmacies that dispense outpatient prescriptions for Schedule II, III, or IV controlled substances are required to report those prescriptions to the Iowa PDMP.  Prescribers and pharmacists are permitted by password to access PDMP information regarding their patients’ use of controlled substances to assist them in determining appropriate treatment options and to improve the quality of patient care.  


The availability of the PDMP in Iowa is a great boon to prescribing Iowa licensees.  Its availability, however, creates a presumption that Iowa physicians and other prescribing practitioners will access the database to evaluate the integrity of patients seeking narcotics.  Failure to take advantage of such a valuable tool could have negative implications in an investigation of an Iowa licensee’s narcotic prescription practices.   


Barbara E. Person

Read the Full Newsletter: Health Law Advisory July 31, 2013

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