Lobbying Affiliate: MML&K Government Solutions

Doctors at Risk, M.D. Update, Vol. 1, Number 2, 2010

Attorneys

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M.D. Update, February 2010
By Lisa English Hinkle

During the past decade, two important but divergent trends have developed that have landed physicians in the middle of a war waged by law enforcement and regulatory agencies including the Kentucky Board of Medical Licensure ("KBML") putting medical licenses at risk. First, such strong national attention has been focused on the under treatment of patient pain that tools of the measurement of pain have been incorporated into the day-to-day practice of medicine as well as provision of routine hospital and nursing facility care. Use of these tools has become not just expected but required as standards of practice. At the same time, drug abuse has shifted from use of illegal drugs like cocaine and heroin to prescription drugs, primarily opioid pain medications. The collision between the war on drugs and the war on pain has created a battlefront for physicians who are called upon to adequately treat their patients' pain but also to police those same patients' use and potential abuse and diversion of prescribed drugs.

The numbers tell the story. By 2005, more than 10 million Americans were reported to abuse prescription drugs, which are more than the combined number of people abusing cocaine, heroin, and hallucinogens. In 2005, more new drug users began using pain relievers (2.2 million) than marijuana (2.1 million) or cocaine (872,000). By comparison, in 1990 only 628,000 people initiated illicit use of pain killers. The CDC reports that prescription opioids are associated with more drug overdose deaths than cocaine and heroin combined. At the same time, patients in pain who rely on opioids for analgesia and improved function deserve access to safe and effective medication, even though those same medications have the potential to cause harm to patients who are susceptible to addiction and abuse. With significant amounts of prescription drugs diverted to the illegal market, physicians are now considered to be the gatekeepers to the market. No wonder increased focus on individual physician practices by law enforcement, medical licensure board and regulatory agencies exists.

In Kentucky, physicians' prescribing practices and prescription drug abuse have been the KBML's top issues, which is evidenced by its support of the reclassification of Tramadol in 2009 as a controlled substance in an effort to increase the regulation of prescribing practices for this drug as well as the number of investigations, cases opened and disciplinary actions against individual physicians demonstrate. KBML data reported to the Federation of State Medical Boards ranks the KBML as one of the states with the highest number of disciplinary actions against physicians during 2008.

For the most part, physicians have been without sufficient guidance about prescribing standards and many are concerned that the ongoing prescribing of adequate amounts of opioids will result in unnecessary scrutiny by regulatory authorities, particularly in light of the information generated by Kentucky's KASPER program that is readily available to authorities. Moreover, family physicians, internists and primary care physicians have often been the focus of the KBML's investigations and routinely criticized and disciplined for managing patients who have chronic pain problems without the benefit of pain management consultations. Often, even the consultations result in referral back to the primary care physician at higher doses of medications for the long term. While the battle lines have been drawn, physicians are without clear guidance about how to manage legitimate patient needs and avoid patient abuse.

While there is no easy answer, recently, the Federation of State Medical Boards, University of Wisconsin, and Alliance of State Pain Initiatives have jointly sponsored the publication of "Responsible Opioid Prescribing: A Physician's Guide" by Scott M. Fishman, M.D., which offers specific clinical advice for physicians for prescribing opioids and offers strategies for reducing the risk of addiction, abuse and diversion of opioids prescribed for patients in pain and offer practical clinical advice that can be used to reduce risk and improve patient care. In addition, physicians should take a proactive role to document the legitimacy of their prescribing practices by knowing the standards, adopting a prescribing protocol, educating staff; setting up processes and systems to ensure compliance; developing written policies and procedures for all staff, enforcing policies and procedures that include random drug and medication checks, drug contracts, and use of KASPER reports; and a random review of patient records on a regular basis to ensure practice compliance.

Lisa English Hinkle is a partner in McBrayer, McGinnis, Leslie & Kirkland, PLLC. Her practice area is health care law. She can be reached at 859-231-8780 or lhinkle@mmlk.com .

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