Legality of what I do

[PGY2]

Our clinic has a policy that we have been following for a number of years. In our new patient forms, we let the patients know that we perform the following:

1) Urine drug screens for all patients requiring opiate therapy.
2) CUREs reports (CA pdmp program)

and this is the one I'm asking about:

3) We perform criminal background checks on patients.

Our policy states that we will treat anyone for pain but we will not prescribe opiates to patients with a history of drug related crimes or violence. Now my question is... Is this policy breaking any law or code of ethic in medicine for which I could get in trouble for? The criminal background check is a done through the county court systems and therefore is public information.

We had a DEA inspection last month and I told them we do this. They were very happy with our policy and we passed with flying colors. They even stated that they wished other doctors did it too. However, I never researched the legality of doing this. Any thoughts? For example, am I discriminating against them for having a criminal history, etc...?

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[SamyLSF]

Your not discriminating them because they are criminals. You are just making sure the system is not abused. Then again I'm sure there are many situations where ex-drug addicts/criminals actually need a drug or whatever. You should be asking whether or not it is ethical as opposed to legal since both are not the same. A lot of background checks are performed and even though its public information it's not a bad ding on your "credit" or whatever. I guess as I write this I've changed my mind on my position. Background checks shouldn't be completed unless an issue arises later on. Does that make sense?

 

[emd123]

As far as I'm concerned, any substance abuse, and that includes DUIs and drug abuse (including possession/diversion) are a valid part of your social history. The patient should be disclosing these up front when you ask your social history. Of course, as a part of the disease of addiction, many will not be honest and may outright lie or conceal, or have unconscious denial that there is a problem. Therefore, by checking a public database (criminal records) and prescription drug database you are doing a service to your patient. You are taking measures to decrease their exposure to treatments that could be harmful or even fatal (ie, chronic long term opiates) if their risk is too high. This is no different than assessing cardiac risk prior to surgery, or the risk/benefit ratio of a procedure.

I know of no law (HIPAA included) that has any bearing on a public criminal record database (if the information is accurate, and used for the benefit of the patient). A prescription monitoring database, however, will have laws that vary based on the state. Depending on the state, the privacy laws surrounding Rx databases can be as strict, or even stricter, than HIPAA. In more than one state that I know of, it's illegal to show that report to anyone, including other treating physicians, and even the patient (they have access, but must formally apply for the report from the state, not you).

That being said, you are doing your patient a service by checking these databases and using the information as a tool. In fact, you are likely far exceeding the standard of care, since currently the "standard" amongst so many appears to be to follow the "addiction is rare," and "addiction is far less than one percent" myths that once were taught. Clearly, willful ignorance is unacceptable and often now considered frankly illegal or negligent by the DEA and prosecutors. There are many methods other than opiates to treat chronic pain nowadays, so a refusal to use them, does not equal a refusal to treat pain, per se. The message preached in the past that "opiates are safe for almost everyone" and should "always be given without hesitation" for any condition because fears of their dangers were "irrational opiophobia" is a dangerous one that may take as long as our careers to eradicate.

That being said, if you are taking irrelevant information (non-substance abuse violations, ie, speeding ticket, etc) and somehow using that to harass the patient or discriminate, you are in uncharted waters. If you are using the info to assess the risk of a potential course of opiate therapy in your patient, you are practicing a very high level of care, that likely is the emerging, and eventual necessary, standard of care.

As I alluded, be careful of Rx monitoring reports, though. Definitely check them, but know your state laws regarding yours. You may not be able to put them in the patients chart for example, or even share the report with other physicians or even the patient. These protections were placed to prevent people with legitimate needs for medication from being blacklisted as drug abusers based on a false report or an inaccurate interpretation of an Rx report, or simply because they're on a certain medication. Many of the Rx databases specifically have a disclaimer that says "we can can not guarantee the accuracy of this information which is not verified."

I think that in today's environment, your risk is much, much greater to follow the policies of "willful ignorance," "patients never lie and if they do my hands are washed of responsibility" and "addiction, diversion and malingering are rare," compared to being very conservative with prescribing with the risk of being sued for under treating pain, or checking a prescription database one too many times.

If you are very conservative, and under treat someone's pain, you can always correct course and get more aggressive. If you over treat, are too liberal and cavalier with opiates, and a patient ODs and dies or you lose your license, the damage is irreversible.

 

[Ducttape]

Excuse me if I am being redundant or excessively verbose, but a criminal background search can be considered a part of due diligence prior to initiation of COT (chronic opioid therapy). for chronic non malignant pain, decision to initiate therapy includes risk assessment, and past misuse is clearly a risk.

Finally, IMO, there is no ethical requirement for prescribing opioids for chronic non malignant pain.

 

[lobelsteve]

Excuse me if I am being redundant or excessively verbose, but a criminal background search can be considered a part of due diligence prior to initiation of COT (chronic opioid therapy). for chronic non malignant pain, decision to initiate therapy includes risk assessment, and past misuse is clearly a risk.

Finally, IMO, there is no ethical requirement for prescribing opioids for chronic non malignant pain.

Agreed, opiates are an option in appropriately selected patients and this requires DD and a ton of ongoing monitoring. The tide is turning away from opiates outside of short term use and palliative care. It only gets harder to justify each dose and every mg- but for many of my patients it is the only way to keep them functioning at work.