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.

GUEST POST: Tom McMahon on a Physician’s Right to Sue over Faulty Peer Review Process

One frustration many physicians have with their hospitals is the failure to follow peer review procedures as adopted in the medical staff bylaws. One such situation led to a lawsuit handled by Miller | Kabler senior litigator Tom McMahon against Penrose hospital. In that case, the Colorado Supreme Court ruled in 2007 that a physician may file suit for damages against a hospital arising out of a faulty peer review process as soon as that administrative proceeding is complete.

Consequently, once the physician in question completed the peer review process at Penrose, he filed a breach of contract action against the hospital for damages. Penrose immediately moved to dismiss, arguing that – despite what the Colorado Supreme Court had just said – completing the administrative proceeding wasn’t enough after all. According to Penrose, a physician must also first file a separate suit seeking judicial review of the peer review process and obtain a reversal there of the administrative result before filing a damages suit against the hospital. The trial court agreed with Penrose and dismissed the suit.

On appeal, in 2010 the Colorado Court of Appeals reversed the lower court and upheld the physician’s right to sue the hospital over a flawed peer review process as soon as the administrative proceeding is completed. Penrose then sought review by the Colorado Supreme Court in an attempt to have the trial court ruling reinstated, but that was denied, thereby preserving the two appellate court rulings.

Taken together, these appellate decisions ensure that physicians subject to peer review have recourse against hospitals that fail to play by the rules which they themselves have adopted. For more information contact Tom McMahon at tmcmahon@joneskeller.com or visit his website, www.coloradoantitrustlaw.com, or the Miller | Kabler website, www.joneskeller.com.

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.

Social Media & Medicine — Tips for Avoiding Trouble

The ever-increasing popularity of social media sites like Twitter, Facebook and others, can create issues for doctors and other health care providers. A few weeks ago, I posted about the Rhode Island physician who lost her job and was reprimanded by the Medical Board for inadvertently  identifying a patient on Facebook. Other than the HIPAA and physician-patient privilege issues, social media can present other issues for doctors. For example, last year, CNN.com ran a story about physicians on a humanitarian mission to Haiti posting photos on Facebook. The article, which can be read here, indicates that the Puerto Rican Medical Board investigated the posting of photos of doctors drinking, posing with guns and partying. Ultimately, Medical Board exonerated the physicians, but the incident itself highlights the risks of social media for doctors.

A major concern for health care providers with an online presence is maintaining professional and personal boundaries. The AMA has issued a policy on professionalism in the use of social media for physicians that should be required reading for all healthcare professionals. The AMA Policy can be viewed here.

Doctors and other healthcare providers who choose to have a social media presence should keep a couple of things in mind:

  • Nothing about the Internet is Private. The physician-patient privilege and HIPAA prohibit disclosure of any information that would identify a patient. The more unique a case is, the more likely a description would identify the patient. Don’t discuss patients or cases, no matter how interesting. Here’s what can happen.
  • Boundaries become Blurred Online. As with the physicians in Haiti discussed above, the lines between private and professional life can be difficult to discern. An April 2007 article in the AMA Journal Of Ethics, cautions against physician’s disclosure of personal issues to patients, such as similar medical conditions, in an attempt to empathize with the patient. Allowing patients “behind the curtain” into a physician’s personal life is a situation ripe for problems. Although patients may feel a greater connection to the physician, they can also start to view the relationship as something more. Most commenters recommend avoiding “friending” patients on Facebook. See”A Doctor’s Request: Please Don’t Friend Me” from USA Today; and “Practicing Medicine in the Age of Facebook” from the New England Journal of Medicine. Because of the unique nature of the physician-patient relationship, keep your personal and professional life separate.
  • The Same Rules Apply Online as Off. If physicians or practices choose to have Facebook or other social media presence, keep in mind that all of the rules that apply in the real world apply online. This means that poor advice, poor decisions, and poor communication online can have the same affect as that given in person.

Supreme Court Denies Expedited Appeal of Healthcare Law

In a widely expected move, the U.S. Supreme Court denied Virginia’s request to fast track the appeal of its Attorney General’s challenge to the Affordable Care Act this week. Had the Court granted the petition, it would have permitted the case to skip the Court of Appeals and likely would have resolved most of the pending challenges to the healthcare law. The Supreme Court has instead required the case to proceed through the normal appeal process.

The Court’s decision signals two things: First, that the Court does not view the case as having the same broad constitutional implications as the ACA’s challengers. Second, that the Court will not likely accelerate any of the state challenges to the law. The Virginia case (and presumably the other state challenges) will now proceed through the normal course and may or may not be heard by the Supreme Court at all. The 4th Circuit will hear the Virginia appeal on May 10.

Kaiser Health News runs a good “Scorecard” of the various challenges – here.

Quick Reads: Healthcare Law In the News

A few interesting articles from the past two weeks.

Social Networkers Beware: Facebook Post Results in Physician Discipline

It was bound to happen eventually. According to an MSNBC.COM Report on Monday, the Rhode Island Medical Board reprimanded a physician for inadvertently identifying a patient in a Facebook post. Not only was the doctor reprimanded, she lost her emergency room privileges and was fired from her hospital . Apparently, the doctor didn’t name the patient or intend to reveal privileged information, “the nature of one person’s injury was such that the patient was identified by unauthorized third parties.”

The msnbc.com article can be read here: Doctor busted for patient info spill on Facebook – Technology & science – Security – msnbc.com. The Boston Globe ran a more comprehensive article on the general issue of social media today: For doctors, social media a tricky case – The Boston Globe. The Boston Globe article discusses some of the issues that can come up with social media, including privacy and boundaries issues. Physicians with Facebook accounts should carefully consider what they post and whether to permit patients to “friend” them. Although seemingly innocuous, it could result in medical board issues. Especially where the injury or condition is unique.

I also found the comments to the MSNBC.com article telling. At least one of the comments called for the doctor’s license. The incident and the discipline reinforce how seriously medical boards and patients take the physician-patient privilege, and how easy it is to inadvertently breach that privilege. I haven’t heard of any issues like this in Colorado, but it isn’t difficult to see how this could become a big issue in the future. Look for more hospitals and practice groups to enact social media policies governing physician and staff’s use of social media.

Copyright Miller | Kabler, P.C., Attorneys-at-Law