How to keep to your license and stay out of prison. Advice from the front lines of the DEA's war on prescribers.
Your medical license is likely your most valuable -- and expensive – investment. Don't lose it by taking needless risks or doing something that looks stupid in hindsight, and could result in the diversion of prescription drugs to illegitimate use. Understand the laws designed to prevent diversion, know how the government investigates and prosecutes it, and apply practical steps you can take right now to stay on the right side of the DEA, the U.S. Attorney's Office and the your state's Attorney General's enforcement unit, and the licensing board. Your medical license and prescription privileges depend on it.
Drug diversion redirects legitimate prescription medication, usually scheduled narcotics, to illegitimate purposes. Federal DEA agents work alongside state Attorney General investigators to "make" criminal and administrative cases based on diversion against providers: MDs, ODs, PAs, NPs, nurses, dentists, pharmacists, and even veterinarians and academic researchers. Prosecutions have far reaching consequences, especially for licensing, insurance and patient eligibility, for years to follow.
Even those who escape prosecution and retain their licenses may still face the loss of DEA-controlled substance prescribing authorization, resulting in suspension or revocation of hospital privileges, required reporting to the National Practitioner Data Bank, exclusion from participation in Medicare and Medicaid, loss of credentialing by patient insurers, and even possible inability to obtain or retain malpractice coverage.
Prosecutors and state board enforcement attorneys primarily rely on providers' patient records in carrying out their investigation in the first instance: Have records documenting diagnosis, treatment and overall care been kept? Does the patient chart demonstrate that the practitioner conducted a verifiable, in-depth (or at least not cursory) patient examination? Does a physician's appointment list reflect that some unreasonably large number of patients were seen in a single day, making it virtually impossible for the practitioner to exam each of them properly?
In tandem with increased governmental enforcement efforts, private medical practices, hospitals, and even provider institutions are establishing prescription monitoring programs designed to collect, analyze and report information on controlled substance prescribing by practitioners to an easily–accessed central data bank. Many states have mandated participation in state-wide Prescription Drug Monitoring Programs, their records can serve as damning evidence.
Be careful. Keep your license. Here are six tips based on actual cases where federal and state criminal and regulatory enforcement agents brought charges against licensed practitioners. All of these cases were avoidable, provided the doctors had used good judgment and applied proactive compliance protocols.
Always write your scripts with the patient in front of you. Do not pre-sign any script in blank, and keep your prescription pads secure and inaccessible to patients. Don't ever sign scripts for your staff to fill in the name of a patient when you aren't present.
Other than where an automated dispensing station (i.e., a "pharmacy robot,") is used, avoid manually dispensing narcotics if at all possible. You can't be arrested for diverting something you don't have. Stores of scheduled narcotics are simply too attractive as targets for patients and staff to take and abuse or resell on the street. If you must dispense, maintain physical security of narcotics, and maintain your medication log. Always record the name of the patient/recipient, the date, the quantity and the dosage of dispensed narcotics, as well as the diagnosis that made the prescription necessary. There have been cases filed involving blank "med" logs, falsified ones, and even logs where the doctor knowingly recorded the truthful, accurate date, amount, strength and name(s) of the person(s) with whom the prescription narcotic was knowingly (and wrongfully) shared, i.e., diverted (e.g., wives, mistresses, etc.)
Other than in a true medical emergency that occurs in an isolated setting where there is no other qualified physician available, practitioners should not prescribe or dispense controlled substances or scheduled narcotics for themselves, their immediate family, their friends, or their neighbors. And if they must, perform a real examination and document it in writing, with a diagnosis requiring prescription medication. Note the amount, strength, frequency and date of the script, and keep the record of the exam and treatment.
New state-wide PDMP programs require prescription entry into a database before the end of the next business day – there is no "Friends & Family" exception.
For the renewal of non-conflicting medication prescriptions written by another treating physician, which the patient requests as a "courtesy," the practitioner should never prescribe without independently assessing the condition or illness for which the drug is being prescribed, or obtaining the medical records from the original prescribing physician documenting the condition. Beware of simply relying on a patients "naked" request, not supported by an examination and a diagnosis.
Medical protocols are changing, and "telemedicine" envisions doctors completing examinations and treatment of new patients even when the physician is halfway across town or halfway across the globe. But we are not there yet. Do not provide scripts for controlled substances for the husband or child of a patient you never met, the mistress of your medical practice partner, or anyone else who could have easily come in person for an office examination but didn't. It may be one thing to "call in" a script to the pharmacy for an existing patient who calls for a refill, or who e-mails about a reaction to a prescribed medication and wants a substitute – but it's entirely another for someone just passing through town and who never "presents" to your practice for a proper examination and diagnosis.
Efrem M. Grail is a former prosecutor, www.graillaw.com, defends medical professionals and health care provider entities in federal and state criminal and administrative enforcement matters in Pittsburgh and the rest of the country.