Rachel V. Rose, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.
Physicians need to be careful when it comes to prescribing opioids for many reasons including putting their medical license at risk.
A recent case underscores that when it comes to medical license risks, doctors have more than just a fine to worry about.
On October 18, 2017, the New Jersey State Board of Medical Examiners filed an administrative action against Kenneth Sun, MD, who allegedly took kickbacks from Insys Therapeutics, Inc. to boost sales in exchange for prescribing the highly addictive, fentanyl based painkiller Subsys. In December 2016, the Medical Board temporarily suspended his license.
Now, two weeks after New Jersey filed suit against a multitude of opioid manufacturers, the state is now moving to revoke Sun's medical license. According to NJ Attorney General Christopher Porrino, "[w]e contend that Sun and Insys were working together to make money in the cruelest and sickest way possible, by pushing a dangerous and addictive opioid painkiller on patients who didn't need it and weren't approved to receive it. The more drugs Sun prescribed, the more money he appeared to have made. This kind of profit-based drug dispensing is what you'd expect from a street corner dealer, not a trusted health care provider, and it will not be tolerated in New Jersey," Porrino said.
More than 775 Subsys prescriptions were written by Sun from 2012 through 2016, which generated more than $4.8 million in revenues for Insys. In turn, Sun earned $136,768 in compensation from the drug company.
According to a Law360 article, Insys "regularly" misled health insurance plans and pharmaceutical benefits managers to help secure coverage for Subsys prescriptions. Specifically, Insys representatives used or developed false records to help lock in preauthorization approvals and ensure paid reimbursement claims.
Insys officials even hid the company's telephone number from benefits managers and insurers to conceal that it was Insys reimbursement center employees calling in an effort to obtain insurance reimbursement approvals for prescriptions of Subsys. The number of people admitted to state-licensed or certified substance abuse treatment programs in the state due to abuse of heroin or other opiates has risen from about 33,000 in 2012 to more than 38,000 in 2016, according to the complaint. Physicians such as Sun, directly contributed to this problem.
So, what are the takeaways for physicians? First, government entities and individuals utilizing powerful law firms are filing suits related to the opioid epidemic across the country. Second, the recent DOJ "round-up" included individual physicians, so keep that in mind. Finally, physicians cannot undue what prescriptions they have written in the past; however, they can move forward and assess policies, procedures and medical necessity in relation to opioid prescriptions.