New Opioid Policy Offers Pain Management Guidance

In June 2014, the Colorado Medical Board, in collaboration with the Colorado Dental Board, State Board of Nursing, State Board of Pharmacy and the Nurse-Physician Advisory Task Force for Colorado Healthcare adopted a new policy for prescribing and dispensing opioids. The new policy is the first guidance the Medical Board has offered to physicians and other pain management specialists since the repeal of Medical Board Policy 10-14 in August 2013. The new policy, which is available here, recognizes that pain and addiction specialists are outnumbered in Colorado and that other providers often are called upon to treat painful conditions.

While the policy states that it does not “set a standard of care for prescribers and dispensers,” doctors and others who treat chronic pain should follow the guidelines set out in the policy. The policy includes guidelines for developing and maintaining competence, initiation of pain management therapy, prescribing, monitoring, patient education and discontinuing therapy.  Failure to follow the guidelins may lead to discipinary action.

While the policy is broadly worded, a few specific items are conspicuous:   The policy advises physicians to review relevant PDMP data before prescribing or dispensing opioids. Practitioners who prescribed often abused medications such as OxyContin, oxycodone, and other opioids would be wise to review PDMP data not only for when initially prescribing medication, but with each refill as well. The policy also advises pharmacists to use caution when dispensing to new or unknown patients, filling weekend or “late day” prescriptions, and when filling prescriptions issued by a provider far from the location of the pharmacy.

Although the policy does not explicitly state, it signals that certain prescriptions amounts and types will likely be considered substandard in the absence of a compelling reason for the prescription. For example, the policy advises that opioid doses greater than 120 mg morphine equivalent are considered dangerous, and that “benzodiazepines are known to potentiate the effects of opioids and may increase the risk of adverse outcomes.” Additionally, opioid treatment that exceeds 90 days, prescriptions for transdermal, extended relief or long-acting preparations are suspect and will likely be considered “red flags” in Board investigations.

Given the significant risks associated with narcotics and pain management, including the difficult patient population, the high incidence of abuse, and overall danger to patients, physicians who are not specially trained in pain management would be wise to avoid the practice as much as possible. Doctors who do practice pain management should strictly adhere to the Board’s policy, meticulously document their care (including maintaining copies of PDMP data in patient files), and be comfortable referring patients to addiction and pain management specialists at the first sign of trouble.

For more information, please contact Steve Kabler at skabler@millerkabler.com or 720-306-7733

 

Notifying Patients When A Doctor Leaves A Practice

When a physician leaves a practice to either start or join a new practice, there is often a dispute between the departing doctor and the practice about the information to be provided to the physician’s patients.  While Colorado Medical Board Policy 40-08 addresses this question in some respects, it is silent on another: Do patients have the right to know where there physician is going?

Most employment contracts contain a provision indicating that the patients are “patients of the practice” and not of the doctor. This position, however, ignores Colorado’s Corporate Practice of Medicine doctrine, C.R.S. § 12-36-134 (7), which provides that corporations do not practice medicine, and individual providers remain responsible for the treatment of patients. The physician-patient relationship exists between the treating physicians and the patient. No “practice-patient” relationship exists under Colorado law. Thus, the enforceability of provisions in employment or other agreements between physicians which suggest an “ownership” interest in patients is dubious.

Colorado Medical Board Policy 40-08 makes clear that it is the patient’s decision from whom to receive care. The policy further provides that “Practitioners continue to have obligations toward patients during and after departure from a medical practice. Practitioners may not abandon a patient or abruptly withdraw from the care of a patient.” Further, the policy provides that “No practitioner, group of practitioners, or other parties that may be involved should interfere with the fulfilment of these obligations, nor should practitioners put themselves in a position where they cannot be assured these obligations will be met.” This position is echoed by CMS and AMA policies as well.

For example, American Medical Association Ethics Opinion 7.03 provides, in part:

The patients of a physician who leaves a group practice should be notified that the physician is leaving the group. Patients of the physician should also be informed of the physician’s new address and offered the opportunity to have their medical records forwarded to the departing physician at his or her new practice location.

Similarly, the Colorado Medical Society’s policy 180.995 on Termination of Physician/Patient Relationship Notification addresses the issue of patient notification upon a physician’s departure from a practice and recommends that patients be provided contact information for the departing physician.

Ultimately, patients are entitled to full and complete information to allow them to make informed decisions about their health care, including information allowing them to contact physicians who are leaving a practice – even where the departing doctor is going to a competing practice.

What do Doctors Need to Report to the Medical Board?

Understanding what to report to the Colorado Medical Board outside the renewal cycle can help doctors avoid disciplinary issues.

The most frequent mistake physicians make is failing to report a new address to the Board. Rule 270 requires physicians to update their address of record within 30 days. This requires an express request from the doctor that the address be changed. The Board will not update its files otherwise. While this may seem mundane, the failure to update an address can lead to disciplinary actions when complaint letters do not reach the physician.

Another requirement often overlooked is to notify the Board when a physician/P.A. relationship ends.  Under Rule 400, a P.A.’s conduct may be imputed to a supervising physician.  The Board deems the supervisory relationship to continue “until specifically rescinded by either the physician assistant or the primary physician supervisor in writing.” A physician must not only file a notice with the Board of the supervisory relationship, also notify the Board when the relationship ends. Physicians should not rely on the assumption that the P.A. will notify the Board when the relationship ends.

The failure to timely report a condition that affects a physician’s ability to practice safely will prevent the doctor from entering into a confidential agreement. Under C.R.S. § 12-36-118.5, the Board is authorized enter into confidential agreements to limit practice if the physician suffers from a physical or mental condition that renders the physician unable to safely practice. However, doctors can only take advantage of this statute if the licensee reports the condition to the Board within 30 days of onset. Rule 295 explains the information to be reported, and Policy 30-04 provides guidance on the types of conditions that must be reported. Failure to timely report can result in public discipline.

Doctors and P.A.s are also required to report within 30 days any adverse action against the licensee taken by another state or country, a peer review body, health care institutions, and others. This requirement extends to governmental agencies, law enforcement and courts, if that action would constitute a violation of the Medical Practice Act. Thus, physicians must report any limitation of privilege, felony convictions, and any exclusion from Federal health care programs. Doctors (and P.A.s) must also to report any surrender of privileges while under investigation. Doctors are not required to report malpractice settlements, although Colorado insurance companies must, by statute, report malpractice settlements and judgments to the Medical Board.

How Colorado’s Legalization of Marijuana Impacts Physicians

In the 2012 election, Colorado’s voters approved a new constitutional amendment legalizing marijuana for recreational use. This comes five years after Colorado’s legalization of medical marijuana in 2007. In the wake of these laws, the question arises as to how the Colorado Medical Board will treat marijuana use by physicians. The short answer is that the Board will view marijuana use exactly the same as it did before it was legal.

Typically, the Medical Board only becomes aware of a doctor’s use of drugs or alcohol in the context of a complaint for another reason (i.e., a DUI, report of impairment at work, or as the result of a self-report). Like alcohol and other drugs, the Colorado Medical Board has always viewed physician use of marijuana as improper and typically results in the Board ordering physicians to CPHP for an evaluation to determine if the doctor has a substance abuse problem that warrants discipline and oversight. This approach is also echoed by other boards, such as nursing or dentistry, where a referral to Peer Assistance Services is a foregone conclusion where provider drug use is involved. Legalization for medical use did not change this view, and legalization for recreational use will likely not change that view either. Essentially, the legality of a drug is irrelevant to the Colorado Medical Board’s analysis because the Medical Board’s focus is on physician impairment and patient safety. Medscape Today published an interesting article recently that discussed the issue of physician marijuana use and impairment with CPHP’s Medical Director, Doris Gundersen, M.D. The article can be found HERE. (Free login required).  Although Dr. Gundersen does not work for or represent the Medical Board, her statements are consistent with the Medical Board’s view that legality is irrelevant. For example, physicians with prescription pain dependence or addiction (or alcohol impairment) are not exempted from discipline or oversight because the medication is legal and/or prescribed.

Doctors and other health care providers who choose to use either medical or recreational marijuana (or any other drug), should be aware that such use could place the physician’s license in jeopardy. The excuse that “it’s legal” will not be a defense to marijuana use in the eyes of the Medical Board.

The PDMP – Colorado’s Prescription Drug Monitoring Program PDMP – What you should know

As most doctors are aware, the Colorado Board of Pharmacy maintains the Prescription Drug Monitoring Program (PDMP), which provides a database of controlled substance prescriptions dispensed by Colorado pharmacies. Access to the PDMP is limited to a defined set of circumstances. This is important because a provider who improperly accesses the database is subject to significant penalties, including fines and criminal charges. Specifically, a person who improperly obtains information is subject to a civil fine of up to $10,000 each. Violators may also unknowingly commit a class 6 felony under Colorado’s theft of medical record statute. Finally, providers may be subject to discipline by their respective licensing boards for unprofessional conduct.

The PDMP is an on-line database that is available to pharmacists, and to licensed Colorado health care providers with prescriptive authority, such as physicians, dentists, physician assistants, podiatrists, veterinarians, nurses with prescriptive authority, and optometrists. The PDMP is intended to be a “mechanism whereby practitioners can discover the extent of each patient’s requests for drugs and whether other providers have prescribed similar substances…” § 12-42.5-401. A PDMP report shows the date prescriptions are written, the date filled, the controlled substance, the prescribing provider, the amount, refills and pharmacy used.

Because of the potential penalties involved, it is important for doctors, nurses, dentists, and others to understand the circumstances under which they can properly access PDMP data. As it relates to prescribing doctors, PAs, nurses, dentists and other providers, access to the PDMP is limited to inquiries related “to a current patient of the practitioner to whom the practitioner is prescribing or considering prescribing any controlled substance.” § 12-42.5-404(3)(a). Prescribing providers should understand the following:

1) PDMP queries are limited to current patients. In some circumstances, doctors or others who are responding to either malpractice or Board complaints are tempted to look up former patients. If no current practitioner-patient relationship exists, PDMP queries are not permitted.

2) PDMP access is limited to patients. Physicians, nurses and others are not permitted to look up themselves, their staff, or their families on the PDMP.

3) PDMP is limited to providers who are prescribing or are considering prescribing controlled substances. Thus, for example, an allergist should not look up patients for whom he or she would not be prescribing a controlled substance.

Any provider who deems it necessary to obtain his or her own PDMP history may do so, but should make direct request through the Board of Pharmacy rather than through a direct PDMP search. Other providers, such as pharmacists and addiction specialists, engaged in a legitimate program to monitor a patient’s drug use are also permitted to access the PDMP. Additionally, law enforcement agencies may obtain reports related to specific patients or practitioner, and regulatory boards, such as the Board of Medicine, Board of Nursing or Dental Board may also access information related to a specific individual practitioner, where the request is part of a bona fide investigation and accompanied by a court order or subpoena.

Doctors and DUIs: What to do if you’ve had one too many

Just like every other segment of the population, Colorado physicians are not immune from making the mistake of drinking and driving. Unlike other segments of the population, however, a DUI or other alcohol related offense can result in professional discipline. So, what do you do if you are a licensed health care provider who gets a DUI?

The Colorado Medical Practice Act requires that all physicians report within 30 days any “adverse action” by a law enforcement agency that would constitute grounds for discipline under the Medical Practice Act. Although it is arguable that a first-time offense of drunk driving or other related offense would not constitute grounds for discipline and would not, therefore be reportable, under the MPA, the wiser course is to report the action to the Medical Board within 30 days of any conviction. A physician would be required to report the conviction during the next licensing cycle regardless, so it makes sense to self-report early. Like many things, the failure to report could result in greater discipline than the act itself.

Doctors should be aware, however, that once the matter is self-reported, the Medical Board will require the licensee to undergo an evaluation with the physicians’ health program, CPHP, and will issue a complaint letter to the physician to investigate the matter. A great deal of the Board’s decision making with respect to possible discipline will depend on the outcome of the CPHP report. If the report identifies an underlying physical or mental disability, discipline is likely and could include treatment and monitoring. Given the potential downside, the best course of action if you have one too many is to call a cab or get a ride. The trip to pick up your car the next day will be significantly less of a hassle than the damage caused to your license.

Colorado Medical Board Statistics Show Trend Towards More Severe Discipline

Every year or so, the Colorado Board of Medical Examiners releases a “Board Action Summary” showing the number and types of disciplinary actions over the prior decade. The most recent summary (from June 2009*) reveals a trend towards more severe discipline for doctors and physician assistants over the past several years. The BME licenses more than 23,000 physicians and physician assistants. Statistically, the number of complaints received is relatively small (778 complaints in 2009) with about 3-6% of licensees receiving complaints in any given year. In recent years, however, although complaints have decreased, the Board has disciplined more licensees and imposed more severe sanctions.

In 2000, the Board disciplined 75 licensees on 867 complaints (8.6%). In 2009, the Board disciplined 140 licensees on 788 complaints (17.8%). Moreover, it appears that the severity of discipline has increased. In 2008 and 2009, “serious” Board actions (i.e. revocation, license surrender, and suspensions) reached their highest level of the decade and increased significantly over the previous two years. In 2008 and 2009, the Board, revocations, surrenders and suspensions accounted for 81 of the Board’s 261 actions (31%); while in 2006-07 the same actions accounted for only 11% of Board actions (23/199). This suggests one of two things: 1) physicians are committing more disciplinary offenses or 2) the Colorado Medical Board is handing out more severe discipline for the same offenses.

Regardless of the reason, those that come before the Board risk more severe discipline than in years past. Over the next few months, I’ll be discussing the different types of “unprofessional conduct” that can result in discipline (for not only doctors, but nurses and other health care providers), how to respond to Board complaints, and more importantly, how to minimize the chance of popping up on the BME’s radar, based on my experience both as an attorney representing the Colorado Medical Board and defending physicians and others against complaint.

The Medical Board Confidentiality and Transparency Balancing Act

One complaint many patients have when they file a medical board complaints is the lack of feedback the Medical Board provides and how little information is shared. Colorado has for years taken the position that medical board investigations, files and complaints are confidential. Colorado’s Medical Transparency Act provides patients with a centralized database of information concerning health care providers, but does not “open the books” on Board of Medical Examiners’ investigations and relies on physician self-reports. . The Colorado Medical Board has, for years, relied upon a statute that exempted investigations and other information from open records laws, however, the statute didn’t expressly make the records confidential. In 2009, the Colorado Supreme Court in DeSantis v. Simon, found that the Medical Board’s investigations were not confidential and could be obtained through discovery in a civil suit.

To combat this, the Colorado General Assembly amended the Medical Practice Act, section 12-36-118(10) to provide that “records related to a complaint” filed with the Medical Board would receive the same protection as peer review materials. This means that now, Medical Board investigations are not subject to subpoena or discovery in any civil suit brought against a physician. The revised statute essentially overrules the Supreme Court’s ruling in DeSantis, and makes BME investigations confidential.

The General Assembly’s attempt to extend the same protection from discovery to other professional licensing boards, including pharmacy, podiatry, chiropractic, dental, nursing, psychologists and nursing home administrators died on March 22, 2011, when HB 1128 was killed by the house judiciary committee. Based on this, it would appear that complaints against health care providers other than physicians and physician assistants are discoverable in malpractice cases. Under the circumstances, health care providers should consider carefully their responses to licensing board inquiries.

Colorado’s trend towards non-disclosure seems to be bucking a trend towards transparency. Washington’s push for transparency may be an early push, according to this Seattle Times article from March: “Legislative Measure Seeks Medical-Board Transparency“. According to a recent American Medical News article “States Eye Public Access to More Doctor Disciplinary Records,” “at least five states have recently passed or are considering legislation that would create more transparency, particularly regarding physician disciplinary records and procedures. The measures would release more physician information, make that information easier for consumers to get, and provide quicker responses on requests to investigate physicians.”

QUICK READS: Healthcare Law in the News

After resisting the urge, I signed up for a Twitter account – @SteveKabler. One of the nice things about Twitter is that it gives you quick access to all sorts of different news. Here are some of the articles I found this week related to med mal, social media and new legislation:

MEDICAL MALPRACTICE

SOCIAL MEDIA AND MEDICINE

I’ve run a couple of posts about the impact of social media on medicine in the past month. Here are a couple of other interesting articles:

MEDICAL REGULATION

Apparently, the Missouri Board of Registration for the Healing Arts claims it is too difficult to discipline physicians. A new law aims to change that: “Legislature Sends Doctor Discipline Bill to Governor.” I’m most interested in the fact that Missouri hasn’t summarily suspended a doctor in 25 years! Colorado suspended more than 150 between 2000 and 2009 alone.

Tips for Ending the Physician-Patient Relationship With Problem Patients

One question I get from time to time is how a doctor may discharge “problem patients” and end the physician-patient relationship. Doctors who terminate the relationship improperly can face disciplinary charges for patient abandonment or worse. Medical Board complaints for patient abandonment are generally the result of poor communication and typically are the product of a doctor moving to a new practice group; the closing of a medical practice; or a physician moving to a new city. I’ll deal with closing and departing from a medical practice in another post. The issue today is the “problem patient” — one who is disruptive, non-compliant, delinquent or simply has a personality clash with the physician or staff. Discharging these patients should be done with care.

The physician-patient relationship is not a life-long commitment for either the doctor or the patient. With the exception of certain requirements of EMTALA (the Emergency Medical Treatment and Active Labor Act of 1986), physicians are not obligated to accept every patient who seeks his or her services. Once the doctor-patient relationship is established, however, a doctor must follow certain guidelines when discharging a patient to avoid abandoning the patient. Colorado Medical Board policy 40-02 sets out the procedural guidelines for discharging a patient. The Medical Board recommends that:

  • Any discharge be in writing and sent to the patient via certified mail;
  • In the discharge letter, the doctor agrees to provide 15-30 days of provisions coverage while the patient finds a new doctor;
  • The physician provide information for referral to new physicians, if possible; and
  • The letter notify the patient that the patients’ records will be sent to the new physician upon receipt of a written authorization from the patient.

Keeping in mind that problem patients are being discharged for a reason, care should be taken to make sure that a physician minimizes the risk of being charged with abandonment or worse by virtue of the discharge. Even where procedural guidelines are followed, physicians must take care that all discharges are for non-discriminatory reasons, not in violation of anti-discrimination laws such as the Americans with Disabilities Act, and do not jeopardize the welfare of the patient. Thus, a discharge letter should also explain the reasons for discharge in clear and concise language, taking care to spell out the non-discriminatory basis for ending the relationship. A properly prepared discharge letter can eliminate many headaches for the doctor down the road.