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North Carolina Prescribers Beware These "Top 1%" Lists

North Carolina Prescribers Beware These "Top 1%" Lists

Health Care Law Note
(June 6, 2016)

A May 16, 2016 article in the Charlotte Observer reported on the latest efforts in North Carolina's fight against prescription drug abuse. It noted that more than 1,000 North Carolinians die each year from fatal overdoses, and nearly half of those who have died have received prescriptions for highly-addictive narcotic painkillers, known as opioids, within the 60-day period before their deaths. In fact, according to an infographic published recently in Raleigh's News & Observer, the city of Wilmington, North Carolina ranks first in the United States in the rate of opioid abuse, and three other North Carolina communities rank in the top 25. This same infographic reports that opioid abuse costs the nation's economy $56 billion annually. 

Seeking to curb patient deaths in North Carolina related to overprescribing of opioid medications, the North Carolina Medical Board ("Board") recently launched a new initiative, "The Safe Opioid Prescribing Initiative," through which it hopes to identify potentially improper or reckless prescribing. The Board and other state agencies have been criticized for their slow response to the overdose epidemic, and this initiative appears to be the Board's most recent response to that criticism. In 2014, the Board published a 59-page Position Statement offering guidelines on how to prescribe opiates for the treatment of pain.

According to the Charlotte Observer article, the Board currently is investigating 60 physicians and physician assistants who were involved in the treatment of patients who died of overdoses. The Board is also investigating 12 other doctors and physician assistants who prescribed high doses or large volumes of opioids.

Recent Change in Law Enabled the Initiative

North Carolina law was recently amended to authorize the Department of Health and Human Services (the "Department") to release certain information about opioid prescribing to the Board and other licensing boards having jurisdiction over health care practitioners. This information is collected and maintained in a secure, confidential database, the North Carolina Controlled Substance Reporting System (the "Database"). The Database was established in 2007 to identify individuals who abuse and misuse Schedule II through Schedule V controlled substances. 

In 2015, the Board established regulations setting forth the criteria which the Department shall use in notifying the Board of certain prescribers. These criteria permit the Department to release information to the Board about, and allow the Board to contact, physicians and other Board-licensed prescribers who:

(1) fall within the top one percent (1%) of those prescribing 100 milligrams of morphine equivalents ("MME") per patient per day;

(2) fall within the top one percent (1%) of those prescribing 100 MMEs per patient per day in combination with any benzodiazepine and who are within the top one percent (1%) of all controlled substance prescribers by volume; and/or

(3) have had two (2) or more patient deaths in the preceding twelve (12) months caused by opioid poisoning.

Investigatory Process

In informal discussions, the Board has acknowledged that the above-described process of identifying physicians for review involves casting a wide net because the Database contains limited information (e.g., it doesn't include patient diagnoses but simply the amount and frequency of medicine being prescribed). Accordingly, the information provided by the Database does not permit the Board to distinguish oncologists, hospice providers, and end-of-life caregivers—all of whom are likely to prescribe high doses of opioids for pain management—from other prescribers. All of these types of practitioners, along with substance abuse treatment providers and other practitioners whose prescribing happens to fall within the above-noted criteria, may be subject to a Board inquiry. According to the Observer article, the Board plans to review the Database every three months, and in addition to investigating prescribers who fall within these criteria, it will respond to complaints from the public about prescribing practices.

Practitioners who receive notice from the Board that they are being investigated under this initiative will be asked to provide five or more medical records for the Board's review. The practitioners then will be provided an opportunity to respond to questions or provide additional information demonstrating that their prescribing in given instances was appropriate. If a practitioner fails to respond to the request for records or follow-up questions, or if the information provided indicates that one or more patients received substandard care, the Board may request additional records, seek further review by an independent medical expert, and/or impose discipline.

Be Prepared

Practitioners who regularly prescribe opioids as part of their medical practices should review both the Board's Position Statement and the nonbinding CDC Guideline for Prescribing Opioids for Chronic Pain, published earlier this year. Prescribers also should review their medical record documentation practices to assure that their documentation about their evaluation and management of patients' pain adequately supports their prescribing decisions in individual cases. Taking these precautions, along with others outlined in the Position Statement and the Guideline, may help a prescriber who falls within one of these "top 1%" categories to avoid discipline by the Board.

Steve Petersen represents physicians, dentists, and other health care licensees before their respective professional licensing boards. In addition, he assists hospitals and other business entities with internal investigations and defends them in civil, criminal, and other administrative litigation matters.  

Stephen W. Petersen
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