It has been a long day of seeing patients, after finally sitting down and ready to catch-up on charting there is an interruption from the telephone — it is a Medical Board Investigator with the Health Quality Investigation Unit requesting your cooperation with a subpoena for a patient’s medical record(s). The investigator indicates that her inquiry is due to an allegation of excessive prescribing of Opioids for patient Doe. You have a sinking feeling in your stomach, and ask yourself – How did this come about and where do I go from here?
An investigation can be triggered by a concerned relative, a pharmacist, or from another physician who subsequently sees the patient and is concerned regarding the amount of narcotics being prescribed. The Legislature has recognized the potential for abuse of excessive prescribing and has regulated the conduct of Practitioners authorized to prescribe addictive drugs under California Business and Professions Code (B&P) Section 725 and California Pharmacy Law on Controlled Substances. A Health Care Practitioner found in violation of B&P Section 725, faces significant consequences including potentially losing his/her license, and may also be subject to criminal sanctions.
An inquiry into whether excessive prescribing is occurring will include a review of the patient’s records in question. The investigation will examine the quality of care given in comparison to the Standard of Care within the Practitioner’s community. A Board will discipline the Practitioner if it is determines that the Practitioner committed: “[r]epeated acts of clearly excessive prescribing, furnishing, dispensing, or administering of drugs or treatment… as determined by the standard of the community of licensees is unprofessional conduct for a physician and surgeon, dentist, podiatrist…” B&P Section 725(a).
Although each case in an investigation is unique, whether the Practitioner has met the Standard of Care of the community, when prescribing controlled substances, is determined by the documentation of his/her care. The quality of his/her patient records are imperative when refuting an allegation of excessive prescribing. The review of documentation and compliance with the following Standard of Care elements are critical when establishing that safe and effective prescribing is occurring:
Careful ongoing detailed documentation is the best way to refute an allegation or inquiry of excessive prescribing. With the above elements properly and consistently documented, the Practitioner can demonstrate that controlled substances have been prescribed responsibly and appropriately.
Excessive prescribing of Opioids can be a misdemeanor criminal offense (B&P Section 725(b)). A Practitioner can be found guilty under this code section, if there are “repeated acts of clearly excessive prescribing or administering of drugs or treatment.”
A conviction to the offense can result in a sentence of court fines, and imprisonment for a term of 60 days to 6 months. Any Practitioner convicted of this offense may also be subject to disciplinary action; facing the potential revocation of his/her Professional License.
B&P Section 725(c) allows a defense for both disciplinary and criminal prosecutions relating to over-prescribing and that is if a Practitioner has a medical basis for prescribing, furnishing, dispensing, or administering the Opioids. B&P Section 725(c).
Additionally, a physician or surgeon will not be found in violation of this statute if the patient was being treated for intractable pain in compliance with B&P Section 2241.5.
A violation of the Statute requires “repeated acts of clearly excessive prescribing.” Because there is no bright line rule as to what is “too often” and “too much” in the Statute, the quality of the Practitioner’s documentation and whether the patient’s care is in line with the Standard of Care elements is the best evidence to refute an allegation of excessive prescribing. It becomes imperative for the Practitioner to carefully document the basis for prescribing Opioids and the treatment objectives to continue such a regimen. Careful documentation of all of the elements of care, as stated above, is imperative to defend the Practitioner against the allegation of excessive prescribing of controlled substances. To avoid disciplinary action or criminal prosecution, such documentation can support that responsible and appropriate care was given.
If you have been contacted by an Investigator or have had an Accusation filed against your license due to excessive prescribing, please contact us at 619-237-6130 to speak with a medical license defense attorney.