• Dennis Wichern

10 Ways To Stay Out of the DEA's Crosshairs

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No news attracts attention like a physician who’s in trouble with DEA or their state medical board. So, how does it happen, what are the common issues and what can a physician do to safeguard themselves?

First, let’s look at what the numbers and the research tell us.

The Federation of State Medical Boards (FSMB) tells us that 4,091 physicians were disciplined during 2015 (the most recent data set available) by their respective medical boards. And in 2016, over 953,690 physicians were in practice which means that the percentage of physicians that get disciplined yearly amounts to less than one-half of one percent. That’s a very small number.

And in 2008, a study was published by the Center for Practical Bioethics in partnership with the National Association of Attorneys General and the FSMB that reviewed 725 incidents where physicians were charged with opioid prescribing offenses — either criminal or administrative — during a review period from 1998 through 2006. Interestingly, the study found that 89.6 percent of the incidents involved male physicians and that 79 percent of the time they were 45 years of age or older.

So, what are the most common unbecoming issues seen in the medical profession?

According to the FSMB, unprofessional conduct commonly includes the following: alcohol and substance abuse, sexual misconduct, neglect of a patient, failing to meet the standard of a care in a state, prescribing drugs in excess or without legitimate reason, dishonesty during the license application process, conviction of a felony, fraud, delegating the practice of medicine to an unlicensed individual, inadequate record keeping and failing to meet continuing medical education requirements.

From my 30 years of experience, the physicians who run afoul of the criminal justice system are almost always found in small practices that lack the managerial oversight and the supervision of larger hospitals or clinics — and almost all have been males over 45 years of age.

I’ve also learned that medical “peer review” is an important and powerful tool that hospitals and physician groups use to both improve medical care and mitigate risk. My experience has found that many physicians who have been terminated as a result of “peer review” often end up in trouble with DEA or someone else because they continued to do things that got them into trouble in the first place.

A concrete example

In my various training programs, I am often asked to give “concrete” examples of what gets physicians in trouble with DEA. The most common and simple example is a physician exchanging an opioid or benzodiazepine prescription to a female patient in exchange for sex.

In other instances, the entirety of circumstances involving the physician must be considered. One court ruling found the following factors common in many investigations: (1) An inordinately large quantity of controlled substances was prescribed. (2) Large numbers of prescriptions were issued. (3) No physical examination was given. (4) The physician warned the patient to fill prescriptions at different drug stores. (5) The physician issued prescriptions knowing that the patient was delivering the drugs to others. (6) The physician prescribed controlled drugs at intervals inconsistent with legitimate medical treatment. (7) The physician involved used street slang rather than medical terminology for the drugs prescribed. (8) There was no logical relationship between the drugs prescribed and treatment of the condition allegedly existing. (9) The physician wrote more than one prescription on occasions in order to spread them out.

Other examples can be found on DEA’s website at “Cases Against Doctors,” which provides administrative and criminal court actions by year.

And many state medical boards publish their actions on their websites.

So, how does one stay out of trouble with DEA and the medical board?

The top 10 risk mitigation tips

1. Practice medicine the way you were taught in medical school and follow a recognized state or federal guideline whenever possible. Attorneys call it due diligence.

2. Do not pre-sign prescriptions. This one action is almost always found as a contributing factor to a physician who gets into trouble. It’s also against federal law (CFR 1306.05(a).

3. Do not maintain controlled substances in your office if possible — prescribe only. This will mitigate substantial risk due to drug security and recordkeeping requirements. If you do have to maintain controlled substances ensure you keep meticulous records.

4. Remember the federal definition of a legitimate prescription (CFR 1304.04(a)) which most states copy verbatim: “A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”

5. Follow AMA guidelines and do not prescribe to yourself or family members.

6. Treat your prescription pads like your checkbook and keep them secure. They are extremely valuable to drug diverters.

7. Use your state’s prescription drug monitoring program. It should be an important and integral component in your decision-making process.

8. Always have a witness during your patient interactions if possible. One day it might save you.

9. Maintain thorough and complete patient files. A wise prosecutor once told me, “If it’s not in the file – it didn’t happen.”

10. Relax and keep practicing medicine the way you were taught. 99.95 percent of all physicians will never meet a DEA agent and never have a negative interaction with their state medical board.

Dennis Wichern is a retired DEA Agent who now works to mitigate controlled substance risk for providers and hospital organizations worldwide.

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