Improper Prescribing of CDS Not Taken Lightly
Question: Just How Seriously Do the Authorities Treat Indiscriminate Prescribing of CDS?
Answer: Very seriously. In an opinion issued on April 27, 2017 in the case of United States v. Enmon, No. 14-13258, slip op. (11th Cir. Apr. 27, 2017), the United States Court of Appeals for the Eleventh Circuit upheld the conviction, and twenty (20) year federal prison sentence, of a Georgia physician convicted on 92 counts, including conspiracy to unlawfully dispense controlled substances, unlawful dispensation of controlled substances, and money laundering. The physician was prosecuted based upon his nine-month participation in two pain clinics which had purportedly operated as “pill mills.” On appeal, the physician argued the trial court plainly erred (a) by instructing the jury that his good faith belief that he was acting in the usual course of professional practice was irrelevant and (b) by giving the jury a general verdict form. Second, he challenged the trial court’s decision to allow him to represent himself at trial and at sentencing. Third, he claimed the government presented insufficient evidence regarding the standard of medical care in Georgia. Finally, he argued that his twenty (20) year sentence was substantively unreasonable. The appeals court rejected all these arguments. The doctor’s practice consisted of writing prescriptions, at the cost of $275 per visit, after performing only “cursory” examinations of patients, and that long lines of people waiting for prescriptions formed outside his clinics every day. The Court rejected the physician’s claim that he had a subjective belief he was practicing within the usual standard, and held that such determination must be made by an objective standard. Under an objective standard, the evidence supported the conclusion that the physician was not operating within the usual course of professional practice in prescribing the large amounts of CDS in the manner in which he had done so. Although the facts of this case were particularly egregious, both federal and state criminal enforcement authorities take the prescribing of CDS extremely seriously indeed, and practitioners need to be particularly careful to dispense CDS only in cases where they are actually medically necessary, as determined by a thorough and proper medical examination of the patient.
OSHA, the Occupational Safety and Health Administration is quite alive and well when it comes to enforcing its regulations against physicians. The seven rules that apply to physicians involve:
1- Having a plan to reduce exposure to bloodborne pathogens.
2- You must have a safety plan for exiting your office.
3- You must have a plan for hazard communication; this involves hazardous chemicals of any kind. There must be a written list along with several other requirements.
4- Electrical safety rules must be observed.
5- New York does not require reporting occupational injuries and illnesses. There is a federal exemption for medical office reporting.
6- Every practice must display an approved OSHA poster showing the employee rights to a safe working environment.
7- For practices that use x-rays and imaging services, there are rules, such as radiation exposure badges.
Do NOT ignore the OSHA requirements as the fines may be substantial. Until next week, Larry Kobak, Esq.
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