February 20, 2020

The Legal Perspective – “I Feel Your Pain”

Prescribing Under the Scrutiny of the Board of Medicine
By Michael Goodman

In recent years, physicians who prescribe opioids and other controlled substances for the treatment of chronic pain increasingly have found themselves before the Virginia Board of Medicine (“Board”) to defend their prescribing practices. Clearly, the Board’s role is not to dictate any particular provider’s medical decisions, nor will the Board discipline a provider solely for prescribing opioids for legitimate medical proposes. However, in light of the growing epidemic of prescription drug abuse in Virginia and nationwide, the increase in patient complaints to the Board, and the relative ease by which the Board can use a practitioner’s Prescription Monitoring Prolife (PMP) to analyze his/her prescribing practices, this trend of heightened scrutiny and regulation by the Board will no doubt continue.

Three words to the wise doctor who treats chronic pain: 1) Don’t “dabble”, and 2) Document.

1. Don’t Dabble in Pain Management. Often, primary care providers treat some of their patients for chronic pain. These PCPs see themselves as attempting, in good faith, to treat a largely underserved population with “no place else to go”. However, the documentation requirements and complicated care involved when treating for chronic pain demands a significant level of focus and effort by the prescribing physician. Bottom line, lack of knowledge regarding the standard of care for pain management or the Board’s policies on pain management and/or a path of good intentions will not serve as an excuse or a mitigating factor before the Board.

2. Document, Document, and Then Document Some More. The medical records should clearly reflect that the physician has prescribed opioids based on sound clinical judgment and clear documentation of unrelieved pain, including but not limited to, the following:

• A complete history and physical;

• Appropriate diagnosis for etiology of pain (and associated labs/ diagnostic tests);

• Review of prior medical records;

• Regular follow-ups and evaluations;

• Written treatment plan and goals;

• Monitoring of progress with measurable objectives (i.e., pain rating scales, physical and social functioning);

• An informed consent and written agreement for opioid treatment (“pain contract”);

• Periodic review of the course of pain treatment;

• Monitoring of patient compliance (i.e., random urine drug screens, pill counts, early refill requests, drug seeking behavior, aberrant behavior);

• List of medication(s) prescribed (dose and quantity) and the reasons for the selection;

• Consultations and referrals to specialists as needed, especially with high risk patients;

• PMP checks at each visit;

• Referrals and dismissal from practice when pain contract violated.

Being knowledgeable and taking all steps to stay compliant with the laws and policies regarding chronic pain management will serve physicians well should they ever have to defend their practices before the Board. For further information I commend to your reading the “Model Policy for the Use of Controlled Substances for the Treatment of Pain” (VA Guidance Document 85-24), and the book, “Responsible Opioid Prescribing” (for sale on Federation of State Medical Board’s website, www.fsmb.org). Both the guidance document and book provide valuable insight into how the Virginia Board of Medicine understands and oversees matters of prescribing and pain management. It shouldn’t be a bitter pill to swallow.

Michael Goodman is an attorney with the law firm of Goodman, Allen & Filetti. His practice is focused on health care, and the representation of health care providers in credentialing matters and regulatory issues before the Board of Health Professions.