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    Opioid crisis legal ramifications: How to protect your healthcare organization


    The opioid crisis has reached a critical level unseen in modern history. According to the National Center for Health Statistics, over 64,000 Americans died from drug overdoses in 2016 and over 150 Americans die from a drug overdose every day. These grim statistics have fostered a growing sense of urgency and resolve among federal and state law enforcement, regulators and public officials. 

    The healthcare community cannot rely solely on government regulators to formulate effective strategies for combating what has been referred to by the White House as “the worse drug crisis in American history.”  Healthcare executives can and should serve as the vanguard in turning the tide against this scourge. 

    In this current climate, it is essential that all opioid prescribers possess and retain the requisite skill, education, and training necessary to ensure that they are up-to-date regarding appropriate frequency, use, and duration of the prescribed drug. Knowing how to identify the telltale signs of drug-seeking behavior is essential, along with the potential for alternate treatment modalities.

    Legal ramifications

    Overprescribing by just one practitioner can lead to an untoward outcome that can have ramifications that may readily affect the reputation of the entire healthcare facility. 

    Most states’ laws require that the practitioner be reported to the state’s licensing board. That same board may render a report to the state or federal agency which oversees the healthcare facility where that practitioner is employed. 

    This may occur if the overprescribing is part of a perceived pattern or practice, or lack of policies and procedures that may have prevented the occurrence. It is also not uncommon for poor prescribing practices to lead to a diversion event, which is reported in the media. In that instance, the name and identity of the practitioner and their employer may make an unwanted addition as a local news report. 

    Most practitioners utilize the necessary tools available for safe opioid prescribing, such as  prescription drug monitoring programs,  patient-physician pain contracts, advising patients to secure medication, and avoiding long-term prescribing. 

    However, there are still many practitioners who neglect some of the time-honored basics of proper prescribing, such as thorough documentation, a detailed assessment regarding history and causality, complete diagnostic testing, and appropriate dosage. While these lapses may have garnered only minimal sanctions 20 years ago, in this current regulatory climate, a practitioner’s licensing or certification could be suspended or revoked, resulting in loss of clinical privileges and a report to the National Practitioners Data Bank.   

    Risk mitigation strategies

    As a risk management tool, executives should employ the use of a clinical supervisor, designated as a compliance officer, to oversee the development and implementation of clear guidelines for all opioid prescribers. This should include: 

    • Written policies and procedures,
    • Open lines of communication between the compliance officer and all employees,
    • Audits and/or other monitoring methods to track and identify potential problem areas,
    • Thorough investigation of all instances of noncompliance, and
    • An appropriate mechanism for enforcement and disciplinary action.
    • To augment the program, accredited continuing medical education programs offer advanced training for prescribing practitioners. 

    No matter which insurer, regulatory authority or law enforcement agency may conduct an investigation or audit of a health facility, an active compliance plan will go a long way toward assisting the healthcare facility in avoiding heavy fines, criminal prosecution, and exclusion from federal programs. 

    When an investigation occurs, a clear showing by the facility’s executives that a viable, working compliance program exists, in substance as well as form, always provides an argument for lighter sanctions.  

    Compliance programs can also reduce the likelihood that a “whistle-blowing” employee will report the facility or bring a civil action, since a good compliance program will also include a means for such employees to report problems to supervisors rather than outside agencies. 

    Compliance programs also serve to foster an atmosphere of trust and integrity, demonstrating to employees that their organization stays abreast of current standards and strives to conduct business within the highest standards of ethics and accountability.   

    Alternatives to consider

    While many prescribers still lean heavily on opioids when treating chronic pain, when appropriate, an honest effort to wean a patient away from opioids and toward alternative treatment can be undertaken carefully and gradually. Additional factors such as mental health, obesity, and lifestyle should also be addressed when addressing chronic pain in patients of any age. 

    More holistic modes of treatment such as acupuncture, chiropractic care, meditation and massage therapy all have proven benefits and should be carefully considered.

    By taking advantage of useful tools for preventing overprescribing and diversion, much can be accomplished.  Nationwide, it will take unprecedented mobilization on all fronts, including the healthcare, managed care, academic, and law enforcement communities, but with substantial focus and consistent effort, healthcare executives can take the lead in turning the tide. 

    Alex Keoskey
    Alex J. Keoskey is a member of the New Jersey law firm DeCotiis, Fitzpatrick, Cole & Giblin, LLP. Since the beginning of his law career, ...


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