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What Oklahoma’s amended Uniform Controlled Dangerous Substances Act means for prescribing medical providers

published in McAfee & Taft Healthcare Industry Legal Alert | April 7, 2015

By J. Craig Buchan

Last Friday, Oklahoma Governor Fallin signed House Bill 1948 into law, amending the Uniform Controlled Dangerous Substances Act. The new law, which goes into effect on November 1, 2015, enhances access to Oklahoma’s prescription database and requires physicians and dentists (“medical providers”) to check it when prescribing and refilling addictive or habit-forming drugs.

The legislative intent of the law is to prevent patients who are “doctor shopping” or attempting to obtain prescriptions of addictive medication from more than one prescribing medical provider. Although medical providers have had access to the database for years, there has never been a requirement that it be checked before prescribing medication.

Who is covered under the amended law?

The new law requires any medical provider registered with the Oklahoma State Bureau of Narcotics and Dangerous Drugs to check the database before prescribing or refilling pain medications (opiates), anxiety medications (benzodiazepines), or muscle relaxers (carisoprodol) to any patient, at least once every 180 days. Medical providers are now required to first check the database to assess the “medical necessity” of prescribing the drug and “the possibility that the patient may be unlawfully obtaining prescription drugs…” They must also document the search of the database in the patient’s medical chart.

The law also provides exemptions for hospice and end-of-life care, and certain nursing facilities.

Concerns and unanswered questions about the new law

As it stands right now, parts of the law lack sufficient guidance for medical providers in the event the database reveals medications written by other providers. For example, it is not clear how a medical provider determines whether a patient is unlawfully obtaining prescription drugs, given the fact that medical providers are trained to practice medicine, not investigate criminal activity. The law is also silent on whether the medical provider is required to report the patient to law enforcement. It is anticipated that the various State Boards governing providers will need to issue regulations to give guidance – preferably before the law goes into effect in November.

Interestingly, while the amended law mandates that medical providers check the database and document the results of those searches, it does not provide a remedy if a prescribing medical provider fails to comply with these requirements. Despite this, medical providers who fail to consult the prescription database may be subject to prosecution for prescribing controlled substances that are not for a legitimate medical purpose and not in the usual course of professional practice. Furthermore, regulatory boards may create penalties and consider a failure to comply with the new law to constitute “unprofessional conduct,” leading to sanctions on physicians on that basis.

Next steps for prescribing heath care providers

The medical provider’s duty to check the database does not alter the appropriate standard of care. However, the requirement may have broad-reaching effects in civil and regulatory litigation. It can impact malpractice liability, prescribing decisions, and even a doctor’s license to practice medicine. Any medical provider that prescribes these medications should consult with counsel and implement policies and procedures to ensure compliance with the new law.

 

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