April 2009

News from Attorneys General Offices

  1. California Attorney General Edmond G. Brown Jr. announced the arrest of five individuals for conspiring to fraudulently obtain controlled substances. The scheme included the theft of a physician’s DEA and medical license numbers and the subsequent filling out of fake prescriptions for thousands of doses of prescription opioids.
  2. Florida Attorney General Bill McCollum announced that he deployed sworn law enforcement officers to 17 counties in the Florida Panhandle to inspect nursing homes and assisted living facilities. The investigators assessed the sites to ensure the safety and well-being of their residents.
  3. Kentucky Attorney General Jack Conway announced that a former health aide in a nursing home had been sentenced on her guilty plea to Reckless Abuse of an Adult. She was sentenced to two years’ incarceration, but the sentence was suspended, conditioned on her continuing to cooperate with officials in their on-going investigation of the nursing home where she worked.
  4. Maryland Attorney General Douglas F. Gansler announced the sentencing of a former assisted living facility owner after a jury found him guilty of stealing $14,000 from a resident. He was sentenced to four years’ imprisonment with all but one year suspended.
  5. New Jersey Attorney General Anne Milgram announced the guilty plea of a man for racketeering which involvecd his role in a Newark-based ring that yearly distributed millions of dollars of illegally obtained controlled substances.
  6. Oklahoma Attorney General Drew Edmondson’s wife, Linda, gave a presentation at the Oklahoma Palliative Care Center to commemorate National Healthcare Decisions Day. After attending the presentation, General Edmondson issued a press release, stressing the importance of Oklahoma citizens’ filling out a health care advance directive. Noting that Oklahoma had passed the Oklahoma Advance Directive Act in 2006, he suggested that Oklahomans who had previously signed a directive might want to sign a new advance directive that includes the appointment of a healthcare proxy.
  7. Vermont Attorney General William Sorrell announced the conviction and sentencing of a licensed nurse for illegally possessing controlled substances. Holly Williams was sentenced to 24 to 48 months’ imprisonment, all suspended, on the condition of 24 months probation. She was ordered not to work in an employment setting that provides direct access to controlled substances. In a separate incident, a licensed operating nurse, James Erwin, was found guilty of stealing a syringe of fentanyl from an anesthesia tray in an operating room. A subsequent urinalysis revealed fentanyl in his system.

Judicial Action

  1. The Eleventh Circuit Court of Appeals has determined that the Federal Tort Claims Act waives sovereign immunity, under the facts of the case, for false imprisonment, malicious prosecution, and false arrest. In Nguyen v. United States, No. 07-12874 (Feb. 4, 2009), the court held that the district court improperly dismissed the federal government as a defendant in a case where Dr. Andrew Nguyen, a Vietnam refugee, sued alleging that a Drug Enforcement Administration Agent had no probable cause to arrest him on charges of writing prescriptions for controlled substances without conducting a physical examination. An earlier trial had awarded judgment to the doctor against a county sheriff and his deputy.

Legislative/Regulatory Action

  1. In 2005, Congress passed and the President signed a bill authorizing $52 million over five years for NASPER, a national program to coordinate prescription monitoring systems in all 50 states. Unfortunately, Congress did not appropriate any money for the system for four years. In HR 1105, the Omnibus Appropriations Bill of 2009, Congress has appropriated $2 million which will be available to the 38 states with prescription monitoring programs for sharing information with other states. Kentucky and Ohio have already begun working on a test project to share information electronically.
  2. Florida legislators have passed SB440 and SB462 which, together, authorize the use of an electronic system that would track the prescription and dispensing of controlled substances in Florida. Should the Governor sign the bill, Kentucky officials will provide Florida with the software used for the Kentucky prescription monitoring program and the states will share information with one another. Because Kentucky officials found that Florida pain clinics were becoming a source for illegal prescription drugs in their state, Kentucky Lt. Gov. Daniel Mongiardo wrote a letter to the speaker of the Florida house asking him to support passage of the legislation.
  3. Lawmakers in Georgia defeated HB614 which would have established a prescription drug monitoring program in the state.
  4. Michigan lawmakers are considering a package of bills (HB 4773-4778) that target prescription drug abuse. This legislation would require patients to provide identification when visiting a doctor or pharmacy, upgrade the state’s prescription database to a real-time tracking model, increases jail penalties for prescription drug abuse, and require hospitals to report suspected drug-related incidents to law enforcement.
  5. Oregon lawmakers are considering SB355, which would, if enacted, create a statewide electronic prescription monitoring system.
  6. Wyoming has created a pilot prescription drug monitoring program that will go into effect on July 1, 2010. Signed into law on March 10, HB294 requires the State Board of Pharmacy to create the program. Physicians were be required to report weekly on controlled substance prescriptions they have written.
  7. DEA has published the Interim Final Rule implementing the Ryan Haight Act. Comments should be submitted within 60 days to DEA.

Pain Management

  1. The Centers for Medicare and Medicaid Services (CMS) has just released new pain management guidelines and investigative protocols that allow its investigators to cite nursing home that aren’t managing pain according to the rules.
  2. A CME monograph, “Clinical and Risk Management Considerations for Chronic Pain Patients on Opioid Therapy” is available from the American Academy of Family Physicians.
  3. The latest edition of Pain-Topics e-Briefing Newsletter takes a critical evidence-based look at clinical practice guidelines in the pain management field. It explores concerns regarding guidelines on opioid prescribing.
  4. Minnesota Public Radio ran a feature regarding palliative care for dying children. It noted that research has shown that many of these children are not managed properly for pain and other symptoms.

Prescription Drug Diversion

  1. The Ashland, Kentucky, Daily Independent reported that a forum was held on Prescription Diversion and Abuse in April. A Kentucky State Police representative, Jon Marshall, noted that prescription drug abuse among teen-agers is up by 212 percent over the thirteen years he has been involved in the issue. Marshall also noted that Florida is a favored destination for pill-seeking northeastern Kentucky residents. In Broward County, Florida, alone, the number of pain clinics has risen from 31 in 2003 to 167 today.
  2. Three Florida doctors were recently sentenced on their convictions for conspiracy to unlawfully dispense controlled pain medications and money laundering. Dr. Geraldo Klug was sentenced to 30 months’ imprisonment and a $10,000 fine; Dr. Rogelio Martinez was sentenced to 72 months’ imprisonment, a $10,000 fine, and ordered to forfeit $56,294; Dr. Osler Rivas was sentenced to 72 months’ imprisonment and ordered to forfeit $116,500. The manager of the clinic, Mark E. Artigues, was sentenced to 240 months’ imprisonment.
  3. Former Billings, Montana, physician Michael Metzger was sentenced to three years’ probation and a $5,000 fine on his guilty plea to one count of prescription fraud. He admitted he had forged prescriptions to get painkillers and stimulants for himself.
  4. Dr. Jeffrey Freidlander and three members of his staff at Neurology & Pain Center in Tampa, St. Petersburg, Lakeland, Sarasota, Orlando, and Jacksonville , Florida, have been arrested and charged with conspiracy to illegally distribute and dispense painkillers and of distributing and dispensing a controlled substance without a valid medical purpose and outside the course of professional practice.
  5. A former North Carolina physician has been arrested on a fugitive warrant from Georgia that charges she forged prescriptions for hydromorphone. Elisabeth Robertson voluntarily surrendered her license in North Carolina in 2006 in the midst of an investigation by the North Carolina medical board.
  6. Dr. Paul D. Weinstein of North Andover, Massachusetts, has been charged with the illegal distribution of oxycodone. Among the allegations was that he offered to provide a woman who was interested in purchasing his Lexus SUV with two OxyContin scripts per month for 12 months.
  7. An article from the Bristol Herald Courier posted on TriCities.com explored the problem of substance-abusing healthcare professionals. The newspaper found that at least 46 healthcare professionals in the southwest Virginia area bordering Tennessee had been part of a five-year monitoring plan called the Health Practitioners’ Intervention Program since its inception in 1997. The newspaper questioned the efficacy of such programs, citing California’s recent decision to abandon a similar program. Those who assist addicted healthcare professionals state that the secrecy surrounding the programs is necessary to encourage those professionals needing such help to seek it.

Other Items of Interest

  1. The ABA has published a new pamphlet useful for those who are guardians of incompetent individuals, those who are the appointed healthcare power of attorney, or other legal surrogates. “Making Medical Decisions for Someone Else: A How-To Guide” offers helpful suggestions on obtaining medical information and how to approach decision-making.
  2. An article in the Lexington, Kentucky, Herald Leader, noted that there is inconsistency as to whether a patient’s DNR order ─ or lack of a DNR order ─ is being honored in the state. There is an on-going discussion as to whether the state needs new legislation to mandate a uniform methodology to identify patients’ wishes, such as the wearing of colored wrist bands.
  3. On April 16, the Hospice Foundation of America broadcasted its 16th National Bereavement Teleconference. This year the topic was “Diversity and End-of-Life Care”; it focused on ways of understanding diversity and how cultural histories, traditions, and beliefs can affect end-of-life choices and care.
  4. In a recent article in Nursing Ethics, Shan Mohammed and Elizabeth Peters argue that certain seemingly futile medical procedures on those who are dying often offer ritualistic benefits to patients and family members, helping to facilitate the dying process.

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