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Ericka L. Adler, JD, LLM 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.
Physicians without proper opioid prescribing policies may unknowingly help patients engage in illegal activities, and they could face liability issues.
For medical practices that routinely prescribe opioid medications, it’s a challenge to handle the myriad of issues that are presented by chronic pain patients. Although most patients have legitimate pain issues, there are many addicts who doctor-shop, use illegal drugs when on opioids, or sell their prescribed medications on the street. Opioid pills have become easy to obtain and deaths from overdoses have quadrupled in the past 15 years.
Physicians without proper policies in place may unknowingly help patients engage in illegal activities or could face liability from patient overdoses or suicides that are preventable. Additionally, many practices are scrutinized to see whether they are merely “pill-mills” and precautions should be taken to assure proper prescribing precautions.
For my clients who routinely prescribe opiates, I recommend a conservative approach which requires a firm written practice policy to which all patients must agree as a condition of remaining in the practice. The following are some policy requirements:
1. A comprehensive exam and medical history must be completed on every patient at the first appointment. No prescriptions should be written without a physician visit and the execution of the policy. The goal of any patient treatment plan must be to find an alternative to the dependency on opiates.
2. The practice must check its state’s prescription monitoring program to make sure the patient has been honest about current medication and to avoid potential interactions between medications. If a patient is determined to be “doctor-shopping,” which is illegal in most states, the patient should be terminated from the practice and reported to law enforcement, if required by state law. Be careful not to contact the other prescribing physician(s) directly to report the patient’s activities, as such communication is not excepted under HIPAA.
3. The patient should designate one pharmacy for all prescriptions, and prescriptions should not be refilled, called in, or faxed to a pharmacy via telephone. Prescriptions should only be written during office hours at a patient’s appointment, which is scheduled monthly. This means that patients who call on a Friday indicating they’ve suddenly “run out” of medication or are leaving on a trip, are in violation of the policy.
4. The practice must require drug testing on a monthly basis or another regular frequency to catch patients using illegal/unknown drugs or medications. Additionally, the testing will reveal whether the patient is taking his prescription (if not, he may have sold it). Although many physicians are hesitant to require monthly testing, this approach should not offend compliant patients. This routine approach also avoids the need to look for “suspicious” appearance or behavior in patients, which can lead to discrimination.
5. Stolen or lost medication should be replaced one time only, upon evidence of a timely filed policy report. Many practices also like to count a patient’s pills at every visit to be sure they are accounted for.
6. Make sure patients are provided with warnings regarding their daily activities when using opiates, such as driving, operating machinery, etc. This should be reinforced at every visit as well as reminders on safe storage of medications to protect children in the home, as well as to prevent theft of medication.
Patients who cannot comply with your practice’s opioid policy should be terminated from your practice, although many practices will come up with a “strike” system to allow for one or two “mistakes.” Whatever plan your practice develops should be followed carefully so all patients are treated the same. Talk with patients about any concerns and make sure appropriate referrals are made to addiction programs or specialists when possible. If a patient is terminated from your practice, most malpractice insurance carriers recommend they be provided with a month’s prescription and referrals to other resources in the community, as withdrawal from opiates can be severe.
Here is additional guidance on creating an opioid policy for your practice. The guidelines are proposed by the Federation of State and Medical Boards.
Even practices who do not prescribe regularly can still benefit from adopting some recommended precautions. I further advise that every practice talk with legal counsel about opioid prescribing requirements in your state, and what policies will work best for your practice.