PAINKILLER LAW BLOG POST: The (Non-Narcotic) Rx for The Sore-Thumb Client

The lesson from a recent case in Connecticut is, “Don’t stick out like a sore thumb, but if you do, then hope it’s either for something you can be proud of or at least can successfully defend.” An ongoing investigation is underway in Connecticut into a pain clinic and its nurse practitioner. The NP during the last few years has written more prescriptions for opioid painkillers than any other healthcare provider in the state. Not an auspicious title against the backdrop of the US’ epidemic of prescription painkiller addiction, overdose and death. In Connecticut, there are some Final Fours you want to make, but not when it comes to “highest painkiller prescribing rate.” The Connecticut case is instructive on how providers might attract unwanted attention, and what to do about it if that happens.

First, this NP really did stick out like a sore thumb. She was by a good distance the leading opioid prescriber in the entire state. She worked alongside an MD at a privately run pain management clinic, and she wrote far more painkiller prescriptions than even the state’s leading pain specialists. She had been cited previously by regulators and had paid a fine, but no restrictions were subsequently placed on her license. Apparently the prescribing rates did not drop after that slight brush with the law, and authorities continued to investigate her. She probably also didn’t do a lot to show “good faith” with the investigators and possibly prosecutors who were looking into her practice — may not have revamped her patient care and chart documentation regimen, may not have sought advice on how to comply and show that she was complying with all applicable laws. Very recently, she surrendered her license, presumably under legal pressure.

High prescribing rates will make one stick out these days. In Connecticut as elsewhere around the country, investigators don’t comb prescription monitoring databases to see who is writing the most scrips. But when a provider comes to investigators’ attention, the database for that state is one of the first things they check. If someone’s prescribing rates truly stand out, it’s a red flag which will set investigators on the hunt for a perceived lawbreaker. Of course, someone will always be the one who writes the most opioid prescriptions, someone will always write the least, and everyone else will be somewhere in the middle. The person writing the most opioid prescriptions could be operating in a completely lawful and medically appropriate manner. So what if you or a provider you represent or service, perhaps as an insurer or risk manager, occupy/occupies the “#1 spot”?

This is where the provider must be protected, both from law enforcement, and from themselves. The – forgive me – “prescription” for helping them is the same whether the danger is from law enforcement or just a provider’s stress over taking the extra time to do things right: Careful diagnosis, diligent follow up, conscientious patient monitoring, dosage watch, seeing whether the medication actually helps, compliance by provider and patient with a treatment plan, regular checks by the provider to make sure the patient is not doctor-shopping, and full charting and documentation of all aspects of the patient’s care. That’s just the basic formula, without all the particulars and specifics investigators will be looking for in a given case. But without the basics in place, a provider can count on a rough and dangerous ride if investigators ever pick up the scent.

It is impossible to stop an investigator from investigating. If they want to look, they’re going to look, because that’s their job. Before an investigation ever starts, and once one has, it is critical that the provider have taken the above steps in good patient care and detailed chart maintenance. If the care is proper and the documentation is sufficient, the chart will show it. If there are minor tweaks to make in a provider’s practice or documentation, investigators can require that and the provider can adjust, without the investigators thinking they’re dealing with a criminal. But if there is a sore-thumb level of opioid prescribing, without the medical basis and detailed records to fully support it for every single patient, it’s a starkly different story. Just ask the nurse practitioner in Connecticut. At the moment, her two biggest questions are more than likely, “What am I going to do for a living now?” and, “Do you know any good criminal lawyers?”

* * * * *

Leave a Reply