Much of the focus of late has been on the opioid epidemic. Many medical practices, particularly those that prescribe significant amounts of controlled substances, have retrained physicians and other providers on prescribing opioids. Many have also updated internal policies and procedures.
However, there is another perennial issue related to drug prescribing that seems to be gaining enforcement traction but has received little attention. Recently, I have had three physicians investigated recently for prescriptions written to themselves, employees, friends/acquaintances, or family members.
Not all prescriptions were narcotics, but in each case there was no medical record to support a patient visit related to the prescription and no patient exam, physical or otherwise. None of my clients knew they had done anything questionable but now face the possibility of a license or Drug Enforcement Administration (DEA) suspension, which can have a significant impact on their careers.
The American Medical Association (AMA) Code of Medical Ethics states that physicians generally should not treat themselves or members of their immediate families outside of emergency situations. In rendering its opinion, the AMA cited several reasons:
- professional objectivity may be compromised,
- physicians’ personal feelings may unduly influence their professional medical judgment,
- physicians may fail to probe sensitive areas when taking the medical history, and
- physicians may fail to perform intimate parts of the physical examination.
The AMA suggests that, among other concerns, patients may feel uncomfortable disclosing sensitive information or undergoing an intimate examination when the physician is an immediate family member.
Similarly, the American College of Physicians (ACP) advises physicians against treating close friends or employees. The ACP also mentions the risk of treating conditions outside their specialty and potential embarrassment that a friend or employee might experience in a thorough history and exam, which could lead to a superficial medical evaluation and a potentially bad outcome.
Aside from the ethical concerns, there are also legal risks. Almost all states have one or more state laws requiring a prescriber or dispenser to ensure that prescriptions are based on patient examination. Some states have rules dictating when a physical exam is needed, and some states have special standards for controlled substances. Where there are exceptions to physical exams, such as cases where telemedicine might be permissible, almost all states still have requirements for a physician-patient relationship and a documented patient evaluation. In addition to state law, every physician must also comply with DEA requirements that specifically dictate the necessary information to prescribe.
Physicians should check their licensing requirements for any specific rules related to self-prescribing or prescribing to family and friends. Here are four recommendations physicians should follow before writing prescriptions for family and friends:
- All individuals require an appropriate exam, whether physical or visual, in compliance with state law. The patient must be able to talk freely about the issue and disclose conditions or medication use. The physician should document the patient’s condition or issue, then retain the record in a HIPAA compliant manner.
- Physicians should not operate beyond their area of experience and expertise. They should not prescribe something to friends and family that they would not prescribe to their patients, nor should they prescribe something if they are not up-to-date on the drug’s literature, side effects, or interactions.
- Narcotic prescriptions should be picked up by a patient directly from a pharmacy or handed directly to the patient at the time of the medical visit. A provider leaving a prescription at his office for pick-up (when he or she is not there), is generally not proper as prescriptions can be stolen, lost, or given to someone other than for who they were intended.
- Physicians should follow both state and federal legal protocols required for prescribing, record keeping, and patient treatment under all circumstances.
Although a common practice, physicians need to be aware that self-prescribing and prescribing for family, friends, and employees puts them at risk. Being aware of state laws and DEA and licensure requirements can protect their license—and save their career.
Ericka L. Adler has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.