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Of the many regulations affecting the healthcare industry, those involving prescription requirements can cause some of the biggest problems for physicians if they are not carefully followed. Because prescribing needed medicine is an important part of most doctors’ practices, you must be aware of the following rules that are most likely to lead to a federal or state criminal investigation and potential fines, loss of prescribing privileges, and even jail time.
- Prescribing to a drug dependent person.
As most physicians know, some patients suffer from addictions or dependencies on medicines, particularly those prescribed for pain. If you are aware or should be aware that a patient has a drug dependency, you cannot prescribe them a narcotic drug. If you are properly registered with the DEA as a narcotic treatment program and meet the requirements of that program, you may administer such a drug to the person with the addiction directly. Otherwise, you must either refer them to treatment or simply refuse to treat them. Note that you may administer narcotics to them for one day while a treatment referral is in progress.
- Prescribing outside of acceptable medical treatment principles.
A prescription for any controlled substance can only be issued by a medical practitioner who is authorized to prescribe them by the jurisdiction in which he or she practices. While your employees can call your prescriptions in to the pharmacy on your behalf, you must write the actual prescription yourself. Similarly, you must have a doctor-patient relationship with the person to whom the medicine is described and have performed an actual physical examination of them.
- Permitting unauthorized use of your DEA number
As noted, the law permits you to have a person in your office relay your prescription to the pharmacy. However, it does not allow anyone else to use your name and DEA number either to obtain prescriptions for him or herself, to “fill in” for you when a new prescription is needed for a patient, or to submit false prescription claims to insurance companies. If any of these things happen, it is your license, reputation, and freedom that are at risk, so you must guard your DEA number carefully and act swiftly if you find out that one of your employees or someone else is using it without your authorization.
- Prescribing without medical necessity or justification.
Each prescription you write must have a legitimate medical purpose. In addition to a physical examination, the law requires you to assess the patient’s legitimate medical needs and prescribe him only as much medicine as needed to treat the current condition. For example, it is a violation of federal law to obtain a prescription for a large amount of medicine for you to dispense directly to your patients. Each patient must instead have his or her own prescription.
- Not following electronic or hard copy prescription rules.
Too often physicians, trying to save time during their busy practices, forget that the DEA has very specific rules about when and how prescriptions can be written. For example, it is not legal to pre-sign blank hard copy prescriptions before you see a patient. Each separate prescription must be signed and dated after you see the patient and written in ink or indelible pencil, or typed or printed on the computer. If you are using a computer-generated prescription, it must be manually signed if it will be faxed or printed. Electronic prescriptions have been permitted by the DEA since 2010, provided that an independent third party has certified both the provider’s and the pharmacy’s software systems.
Oberheiden & McMurrey, LLP is a boutique healthcare law firm with headquarters in Dallas, Texas. Former federal prosecutors in charge of healthcare fraud at the Department of Justice and other experienced attorneys advise clients from across the country on issues of healthcare compliance and healthcare fraud defense. If you are interested in discussing a potential problem with us, you should call us for a free and confidential consultation. We answer the phones directly, including on weekends.
- Nick Oberheiden has successfully defended healthcare executives, physicians, and pharmacies against kickback, prescription fraud, false claims, and fraud allegations before all relevant healthcare agencies including the Office of Inspector General (OIG), Department of Justice (DOJ), Department of Defense (DOD), the FBI, the DEA, and others. He has significant experience when it comes to compounds, pharmacies, audits, and prescription errors and represented individuals and businesses on all federal levels in criminal and civil proceedings.
This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results do not guarantee similar future outcomes. Oberheiden & McMurrey, LLP is a Texas LLP with headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.