Precautions of Prescribing Controlled Substances for Pain
In response to growing concerns about prescription drug abuse, there has been a significant increase in investigative and enforcement activities by state licensing authorities as well as local, state and federal law enforcement. We have been contacted by physicians who want to care for patients with chronic or intractable pain but are concerned about the consequences to their licenses and practices that might result if investigators question their decision to prescribe controlled substances. Given the current environment, it is a good idea for physicians to refresh themselves on the legal requirements for effective pain management.
Michigan’s Public Health Code provides a “safe harbor” for physicians who prescribe pain medication as part of legitimate medical practice. A physician who prescribes narcotic controlled substances as part of a medical treatment plan for a patient with reduced life expectancy due to advanced illness is immune from administrative and civil liability if certain requirements are met. The prescription must be issued in good faith with the intention to: (1) treat a patient with reduced life expectancy due to advanced illness or (2) alleviate the patient's pain. In addition, the prescription must be for a legitimate legal and professionally recognized therapeutic purpose.
Physicians should review the Michigan Guidelines for the Use of Controlled Substances for the Treatment of Pain, which summarize the standard of care for managing pain patients. The relevant licensing boards – the Board of Medicine, Board of Osteopathic Medicine and Surgery and the Board of Pharmacy- expect physicians to be familiar with these standards and comply with the requirements before prescribing narcotics for pain management. In general, a physician who follows the guidelines will be viewed as acting in good faith and issuing prescriptions for legitimate therapeutic reasons.
It is also helpful to review the DEA's Practitioner Manual to ensure compliance with federal rules and regulations. Beyond meeting the baseline standard of legitimate therapeutic purpose, physicians must comply with many technical requirements when prescribing or dispensing controlled substances.
Finally, it may be prudent to seek legal and expert advice to make sure that your practice complies with existing laws, regulations and the applicable standards of care. There have been recent changes in the requirements for delegating prescribing authority to mid-level practitioners, record-keeping for controlled substance prescriptions, and transmitting controlled substance prescriptions to pharmacies. A practice audit can help avoid unwanted problems. For help with controlled substance issues please contact Richard Kraus at (517) 371-8104 or by using the form below.
Richard Kraus has 30 years of experience in the area of health care law, with special emphasis on licensing investigations and disciplinary actions. His representation of individual health care professionals as well as hospitals, health systems, long term care facilities and multi-practitioner clinics, provides an understanding of clinical and business realities in health care as well as legal and regulatory requirements.View All Posts by Author ›
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Best Lawyers® 2020
Congratulations to the attorneys of the Health Care practice group at Foster Swift Collins & Smith, PC for their inclusion in the Best Lawyers in America 2020 edition. Firm-wide, 42 lawyers were listed. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation and as lawyers are not required or allowed to pay a fee to be listed; inclusion in Best Lawyers is considered a singular honor. Health Care practice group members listed in Best Lawyers are as follows:
- Gilbert M. Frimet, Southfield
- Richard C. Kraus, Lansing
- Gary J. McRay, Lansing
- Jack A. Siebers, Grand Rapids/Holland
- Jennifer B. Van Regenmorter, Holland
To see the full list of Foster Swift attorneys listed in Best Lawyers 2020, click here.