How to Protect Your Practice From a Drug Diversion Investigation | Clinical Pain Advisor
A look at our situation from a different perspective:
Healthcare providers got an insider’s look at how law-enforcement officials conduct drug diversion investigations, learning how to avoid unintentional mistakes that may garner unwanted scrutiny from regulatory bodies and how to better protect their practices.
Two members of the National Association of Drug Diversion Investigators, Marc Gonzalez, PharmD, and Steven Louie, JD, hosted an interactive session detailing actual cases in which “pill mills” were busted, letting clinicians enact scenarios in which they assume the role of the drug diversion investigator.
“There are a lot of things that are done in the background that regulatory and law enforcement do that practitioners have no clue about. If you know this, you’ll be better able to protect yourself and know what red flags will get their attention,” Gonzalez said.
Gonzalez and Louie identified a laundry list of factors from previously documented legal cases that could provoke probable cause for law enforcement to obtain a warrant, make an arrest, or conduct a personal or property search in the event that criminal charges are being considered for drug diversion (see Table).
The investigators then assigned clinicians to work in teams to develop a plan for how they would act on anonymous tips provided for several case-based scenarios, as well as for organizing an undercover investigation and obtaining a search warrant. While working through the cases, Dr. Gonzalez and Mr. Louie offered practical advice to attendees in the event that become subjects of a drug diversion investigation.
5 Tips for Surviving a Drug Diversion Investigation
1) Observe the right to remain silent. Oftentimes when regulatory agencies and law enforcement start an investigation, clinicians become what Dr. Gonzalez described as “talking heads,” freely offering information about incidents that often have nothing to do with the topic of the investigation. “Be quiet and wait to find out what is going on. Make use of due process in the United States, and do not talk until you have legal representation,” he instructed.
I’m sad to see that doctors are being advised as though they were criminals just for prescribing opioids.
2) Do not prescribe controlled substances to new patients without obtaining a full history and performing a comprehensive workup. “Word travels and patients will know that your practice does not prescribe medications without appropriately vetting individuals. Part of that is ordering past treatment records.”
This one seems obvious and should be a non-issue. No doctor should prescribe anything for a new patient without getting enough information to understand their health issues.
Pain is complex and cannot be understood, classified, or treated in a simple 10-minute office visit.
3) Follow Federation of State Medical Boards Model Guidelines. This agency, which represents 70 US medical and osteopathic boards, works to ensure uniform licensure, policy, education, and credentialing for medical professionals as a national resource to uphold excellence in medical practice.
Here’s the problem with the supposedly voluntary and non-binding CDC opioid prescribing guidelines: every government organization will chose to follow them, despite their gross flaws, to be on the safe side.
4) Create a “Practice Committee” within your community. Assemble a group of 10 to 15 pain management clinicians to meet quarterly and discuss treatment plans and recommendations for challenging patients. “Basically, you will get a treatment plan from everyone on the committee; therefore, if regulatory knocks on your door and says they have a medical consultant who accuses you of not treating a patient appropriately, you can say, ‘I have had this reviewed by 12 other practitioners, and they say that this is the best course of treatment,’” advises Dr. Gonzalez.
This is the “safety in numbers” strategy, spreading out decisions over multiple parties so that no single individual can be singled out for attack.
5) Establish a liaison with local law enforcement. “Have the president of your medical society meet with area sheriffs or the chief of police,” said Dr. Gonzalez. “Going directly to the top officials and asking how you can work together to prevent diversion is much better than cold-calling a police officer who may not be in the best of moods because they have been stationed at the front desk due to injury or disciplinary action.”
Why does law enforcement have so much influence over medical practice? I thought it was illegal to practice medicine without a license, yet that is exactly what law enforcement (and legislators, and politicians, and insurance companies) are doing.
As government interventions are ramped up to control opioid prescription abuse, legitimate pain management healthcare providers and patients alike are at greater risk than ever for being unfairly stigmatized, according to Gonzalez.
An increasing number of general practice and family medicine clinicians are opting out of offering pain management services, and pain management specialists are overloaded.
All the complications of opioid prescribing can be avoided if doctors become too intimidated to prescribe them at all. With a a government agency exerting seemingly super-legal power is running amok, any doctor prescribing opioids can become a target.
If I were a doctor these days, and my family depended on my livelihood, which depended on my license to practice medicine… I can’t say for sure what I’d do.
On the other hand, the purely “cover you a**” response leads to mistreatment and non-treatment of pain patients.
It is more important than ever for pain management providers to protect themselves from unnecessary litigiousness, while at the same time avoiding the unintended adverse consequence of underprescribing pain medications to patients who need them.
The problem is that “unintended adverse consequence of under-prescribing pain medications” all fall onto the patient.
When patients are left in pain, no one else suffers any damages whatsoever from under-prescribing or not prescribing at all.
No one else has anything to lose,
except the pain patient,
who has their functional life to lose.
“Don’t become complacent,” cautions Dr. Gonzalez. “Have a plan in place.”