Want to be fined? Follow CMS’ opioid guidelines.

August 2, 2019

In the eyes of the law, prescribing opioids for patients with chronic pain means upholding ethical standards of professional conduct, not following a checklist.

Recent federal guidelines on opioid prescribing have forced physicians to become extremely cautious in their prescribing habits and documentation as well as their handling of patients with opioid addictions.                                                                                                 

With all the attention on opioid overprescribing, little attention has been paid to patients with chronic pain and a true need for high doses of pain medication. Even less attention has been paid to physicians trying to balance the government’s prescribing guidelines with the needs of these chronic pain patients.

In a recent case, the New Hampshire Board of Medicine investigated a physician who is board certified in pain management and anesthesiology after cutting back a chronic pain patient’s prescription opioid painkillers. The patient had been on a dosage of 80 mg of OxyContin twice daily and 30 mg of oxycodone four times a day for many years. After apparently reviewing the guidelines put out by CMS, which the physician read as allowing doctors to prescribe only up to 90 morphine milligram equivalents a day (MME), the doctor informed the patient he was reducing his dosage to comply with those guidelines. This reduction was less than one-quarter of what the patient had been taking (equivalent of 420 MME).

The patient subsequently complained that his pain was not being controlled by the lower dosage, and he was having a tough emotional time. The patient also failed a pill count and was later admitted to a hospital for threatening suicide. The physician informed the patient he was no longer comfortable prescribing opioids for the patient and would no longer treat him. The physician reported his concerns about the patient’s well-being to the local police department and the man’s primary care physician. The doctor also issued a prescription for an opioid withdrawal drug.

A complaint was filed against the physician, and the New Hampshire Board of Medicine found his handling of the case violated ethical standards of professional conduct. The physician was reprimanded, fined and required to participate in at least 12 hours of education in prescribing opioids for pain management. The physician was found to be at fault for not recognizing that the prescribing guidelines did not actually set an upper limit for opioid prescribing. Rather, the guidelines simply required pharmacists to discuss the cases with physicians who were prescribing higher doses. This physician is, however, certainly not alone in reading the CMS “guidelines” as rules that should be strictly enforced.

The physician in this case appears to have otherwise been in compliance with recommended protocols for pain management. He followed CMS “guidelines,” terminated a patient who did not comply with pill counts and alerted authorities when he felt the patient was in danger. He also checked the drug monitoring database and required urine tests.

But the rules related to prescribing pain medications and treating chronic pain patients are not so black and white. Physicians who believe that meeting the above requirements will keep them safe from enforcement action need to be cautious.

The prescribing guidelines set by CMS, CDC and other agencies are just that…guidelines. While physicians need to be cautious if they are not following those parameters, it’s important to actually understand the standards for prescribing and to use their professional judgment. Documenting all decision-making and seeking a second opinion (or consulting with the pharmacist) are also recommended.

 

For physician practices that prescribe opioids, my advice remains the same:

 

  • Have a clearly defined prescribing policy to follow both within the practice and with the patient. Establish strict documentation requirements and mandate continuing education for physicians in the area of pain management.

  • Have a plan of action for a patient who is noncompliant despite the physician’s exercise of his or her professional opinion when prescribing. This may mean referral to another pain physician for a second opinion or referral to an addiction specialist. Sometimes,  patients do need to be terminated from the practice for noncompliance and/or activity that puts both the patient and the physician at risk. Being able to identify these different types of patient situations, and documenting all decisions appropriately, is key.

It’s a complicated time to prescribe opioids to patients. But there are many patients truly suffering from chronic pain who need the attention and empathy of their physicians. Being educated about the law - and the continuously changing national guidelines - as well as planning in advance for possible scenarios, can help protect both physicians and patients.

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.