Legal Considerations: Prescribing Medications for Friends and Family

Alex Fisher and Erin Tolbert, the creator of MidlevelU, discuss legal considerations to be mindful of when prescribing medications for friends and family. The original article and video, published on MidlevelU, can be found here. Although Erin and Alex discuss prescribing to friends and family in the context of nurse practitioners, the same advice applies to other physicians and other healthcare providers.

100% of Physicians Say They have Prescribed Medication for Friends and Family

Statistics show that prescribing to friends and family members is a common practice among health care providers. Most states do not prohibit writing prescriptions for friends and family; however states require proper documentation to accompany all prescriptions that are written. In addition, most states discourage the practice of writing prescriptions to friends and family members except in emergency situations. It is important to remember that when writing a prescription for a controlled substance, federal law mandates that this must take place in the context of a strict, traditional provider-patient relationship.

Best Practices

In addition to protecting one’s license from future discipline, proper documentation to accompany all prescriptions is an important best practice for health care providers. For example, if a provider is prescribing to someone without taking his or her vital signs or knowing what other prescriptions he or she is on, the prescription written could end up harming the patient. Something else to remember when writing prescriptions: once a provider has written an prescription, he or she has entered into a legal provider-patient relationship with that patient, and the provider could be legally liable for any repercussions of the prescription he or she wrote. For example, if the medication causes drowsiness, and the patient falls asleep while driving and hurts someone, the provider could be liable.

What are the Consequences of Writing Prescriptions to Friends and Family Without Documentation?

The consequences of writing prescriptions to friends and family without documentation can range from a reprimand, required continuing education related to documentation and/or prescribing, and in some cases, revocation of a provider’s professional license. The best way providers can protect themselves from potential discipline by his or her state Board of Nursing or Board of Medical Examiners is to properly document when writing any prescription, and to be cautious about the writing of prescriptions to friends and family.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

Administrative Law Introduction

Welcome to the Administrative Law blog. Here at Thompson Burton, our administrative law practice routinely represents health care professionals before their respective licensing boards, such as the Board of Medical Examiners and Board of Nursing. This short introductory video is aimed at explaining this practice area both to individuals seeking representation, as well as others seeking to generally understand this practice area at Thompson Burton.

 

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

Nursing Regulations and the Board of Nursing

Alex Fisher was recently asked to speak as a guest lecturer to a class of first year nursing students at Southwest Community College in Memphis, Tennessee, to discuss how nurses are regulated by the Board of NursingAlthough Alex discusses regulations and regulatory boards in the context of nursing, the same regulations apply to other health care providers, including physicians, physician assistants, and pharmacists. Alex discusses the following:

The Purpose of State Nursing Boards

Nurse Boards award licenses to L.P.N.s, R.N.s, and N.P.s, and set forth the educational curriculums and standards for nursing programs in the state. In addition, the Board interprets the statutes and rules related to nursing to determine the appropriate standards of practice, and the Board enforces these statutes and rules when they are deemed to be violated.

The Legal Discipline Process Before a Nursing Board

The Board of Nursing follows a legal process in all cases. Nurses and other healthcare providers have the opportunity to respond to a complaint made against his or her license, retain counsel and conduct their own discovery of the facts. Finally, nurses and healthcare providers have the opportunity to proceed to a contested care hearing before his or her regulatory board, if he or she so chooses.

Ways to Mitigate Potential Licensure Concerns in the Future

The best ways to mitigate potential licensure concerns are discussed herein, and explained in greater detail in the previously published three-part series, ’10 Ways to Avoid Losing your Medical License.’ Part I, Part II, and Part III can be found here.

In conclusion, the Board of Nursing follows a legal process in all cases. Regulatory boards expect healthcare providers to comply with standards of care, and the Boards will take actions to assure public safety. In order to avoid complaints against one’s license, be familiar with your state rules and regulations, and comply with best practices to avoid licensure discipline.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

Why Do Healthcare Providers Overprescribe?

11-DrugsLast month, the Tennessee Department of Health sent out letters contacting the top 50 prescribers in the state–which includes physicians as well as nurse practitioners and physician assistants–to request that these individuals justify their higher than average prescribing. While simply prescribing more than one’s peers does not de facto mean that a provider is practicing outside the standard of care, oftentimes these top prescribers raise numerous red flags in the Department of Health’s audit. This review process–which ultimately may lead to discipline for many healthcare providers across the state–raises the question: why do healthcare providers overprescribe? As with most complex issues facing the healthcare profession, the answer isn’t simple.

Healthcare Providers Overprescribe Because We Expect Them To.

We live in a culture where we as patients expect to receive a prescription when we go to a healthcare provider’s office for treatment. This expectation is systemic of a broader cultural problem where we as consumers seek an easy fix for our problems. In turn, these cultural expectations make it difficult for a healthcare provider to go against a patient’s presumptions by choosing not to write a prescription. For example, a provider may be more inclined to write a prescription for opioids when a patient complains of lower back pain rather than addressing the underlying issues, such as the patient’s weight and lifestyle choices. Healthcare providers–just like most of us–would prefer to avoid conflict, and often must walk a delicate balancing act between sound healthcare advice and perceived judgment when issues like weight and substance abuse need to be discussed.

Additionally, many patients get upset, or feel like they “aren’t getting their money’s worth” if the patient pays for an office visit and leaves the provider’s office without a prescription. Such a perception requires a cultural shift in the expectation of what physician’s role in a patient’s health should be. While a prescription may solve a problem in the short-term, long-term solutions to chronic health problems require active participation by the patient, not just prescription writing by a provider.

Healthcare Providers Overprescribe Because They Don’t Realize They Are Doing It.

Without proper documentation, it may be difficult for a healthcare provider to even realize that he or she is overprescribing. Accurate documentation tells a story, and this story should document the provider’s medical decision making in determining when to start, stop, increase, or decrease a prescription. Providers who take the time to justify their prescription writing via documentation may quickly realize that the medication he or she intends to prescribe to a patient isn’t, in fact, justifiable. By documenting properly, by reviewing notes from prior visits with patients, providers can avoid falling into the trap of simply prescribing something because it was prescribed it to a patient previously.

We need to empower our healthcare providers to treat both with and without a prescription pad, but to most importantly treat patients with their own expertise and based on their own documentation–without overwhelming expectation from patients to leave a provider’s office with a prescription in hand every time.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

Chancery Court Overturns Tennessee Board of Nursing Discipline

Chancellor Ellen Lyle of Davidson County Chancery Court reversed the disciplinary actions order by the Tennessee Board of Nursing against my client, a Tennessee registered nurse (referred to hereafter as “the RN”). Chancellor Lyle’s decision, which was issued July 24, 2015, overturned the Board of Nursing’s Amended Order, issued pursuant a hearing before the Board of Nursing last August 2014.

Chancellor Lyle’s decision, which can be found in its entirety here, reversed the Board of Nursing’s suspension of the RN’s license based on the Board’s finding that the RN was addicted to drugs or alcohol to the degree of interfering with nursing duties, and that she was unfit, incompetent, and/or unprofessional due to the use or removal of drugs from the hospital where she worked. In her reversal, Chancellor Lyle found that the only statutory violation supported by the record was that the RN was unprofessional for having in her office controlled substances that had not been documented for a patient. As such, the Chancellor reversed the suspension, but left in effect an assessment of costs of approximately $2,300 against the RN.

Chancellor Lyle found that the Board’s findings that the RN was addicted to drugs or alcohol and unfit/incompetent were unsupported by the evidence from the hearing before the Board of Nursing in August 2014. Specifically, the Board of Nursing found that the RN was unfit, incompetent, and addicted to drugs or alcohol in contradiction to the overwhelming evidence against these conclusions. This evidence included: a physician’s evaluation stating “there are no indications that [the RN] has or has had a Substance Use Disorder,” overwhelming testimony from co-workers that the RN was never impaired or intoxicated in or outside of work, and a lack of evidence that the RN ever removed narcotics without authorization from her employer. In conclusion, Chancellor Lyle succinctly stated:

“When all of the record is viewed as a whole, the outcome is that: (1) the evidence to support the Board’s decision amounts to suspicions and (2) these suspicions are rebutted and undercut by the other evidence of the record…Under these circumstances, the decision of the Board must be reversed.”

Chancellor Lyle’s decision marks a triumphant and tearful day for this RN, whose work ethic as a nurse for 35 years and nursing supervisor for over 18 years has been widely praised and sought after across the country. Her reputation was battered by the unfounded accusations against her, which escalated from a complaint by her former employer in 2012 to a full-blown hearing before the Tennessee Board of Nursing in 2014. The Board has a duty to protect the public, and ensure that unsafe nurses are not permitted to practice in Tennessee. This duty, however, does not permit the Board to discipline a licensee based on suspicions and conjectures.

It should come as a relief to this RN—and all nurses across the state of Tennessee—to know that if an unfounded complaint is levied against you, Chancellors like Chancellor Lyle are willing to stand up and ensure that the Board of Nursing does not discipline your license based on mere suspicions. Hopefully for other licensees across the state, it won’t take three years and an appeal to Chancery Court to ensure that justice occurs.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

Sex, Drugs, Alcohol & Prescription Medicine: When Can Your Personal Life Jeopardize Your License to Practice?

Alex Fisher and Erin Tolbert, the creator of MidlevelU, discuss personal and professional boundaries for health care professionals. The original article and video, published on MidlevelU, can be found here. Although Erin and Alex discuss personal and professional boundaries in the context of nurse practitioners, the same advice applies to other health care providers.

Romantic Involvement with Patients

The most important question to ask when considering romantic involvement with a patient is “Is this a former or current patient?”. Nurse practitioners and physician assistants should never date current patients. Should you find yourself interested in a patient, first and foremost transfer their medical care to another provider in the practice before proceeding. If you do proceed, do so with caution or you could find yourself charged with sexual misconduct. This blog post from MidlevelU outlines the ins and outs of what’s allowed when it comes to romantic involvement with a former patient.

Drug and Alcohol Use

Use of substances like drugs and alcohol can carry consequences even if they don’t affect your job performance. Many employers prohibit drug use among employees, so even if use of certain substances is legal in your state and won’t affect your licensure status, it could leave you unemployed. Nurse practitioners and physician assistants working unconventional hours need to be careful when it comes to alcohol consumption. Avoid drinking before the night shift, even if you have an event to attend before clocking in.

Prescription Drug Use

Chronic use of medications that may impair performance is looked upon unfavorably by employers and licensing boards. The best way for healthcare providers to deal with issues like chronic pain is to pursue alternative treatment methods. If you are taking prescription medications, consistency is key. Make sure you are taking your medications as prescribed. Start new prescriptions that may have detrimental side effects when you have a few days off work so you know how they will affect you. Don’t show up impaired at work or you could lose your license, prescription or not.

 

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

How Little Does the Government Have to Prove to Revoke Your License?

Evidence picThis post, written by Alex Scarbrough Fisher, was originally published on midlevelu.com, and can be found here. It is republished with the permission of MidlevelU.com.

Just how little does the government have to prove to revoke your nurse practitioner license? This post looks at the legal standard required to prove facts in a contested case hearing in order to impose discipline on a nurse practitioner. Even though this delves into more technical legal concepts than in the norm on MidlevelU, it’s important to understand how much, or rather, how little, the Department of Health has to prove in a licensure action against an NP.

Burden of Proof

In a contested case hearing involving a discipline action brought against one’s advanced practice nursing license, the Department of Health carries the burden of proof. The burden of proof is the legal term used to describe the threshold a party seeking to prove a fact has to reach in order to have the fact legally established. In a criminal court case, the burden of proof the prosecutor has to reach to establish facts is that of beyond a reasonable doubt. In a civil action, generally, as well as in a contested case hearing involving licensure discipline before the Department of Health, the burden of proof required is preponderance of the evidence.

Preponderance of the Evidence: What Does That Mean?

Preponderance of the evidence requires demonstrating that a fact is more likely true than not. In practical terms, this means that the Department of Health has to convince the Board of Medical Examiners or Board of Nursing that the Department has at least 51% of the proof in their favor, while you, the nurse practitioner, have only 49% of the proof in your favor.

Proof can be established in a contested case hearing through the testimony of witnesses, the introduction of relevant, nonhearsay documents, or the introduction of affidavits, agreed to by both parties. One of the most important roles of a nurse practitioner’s attorney in preparing for a contested case hearing is to gather evidence to disprove the allegations that the Department has set forth in the formal notice of charges.

Why Does the Burden of Proof Matter?

The preponderance of the evidence standard is significant for a nurse practitioner preparing for a hearing before the Board of Medical Examiners or Board of Nursing because it conveys what level of proof the Department is required to reach in order to prove that the NP has violated a law or regulation and deserves punishment. Preponderance of the evidence is an important standard to consider when preparing one’s defense for a contested case hearing.

Finally, preponderance of the evidence is simply a low threshold requirement for the Department of Health to meet in order to revoke an individual’s license to practice medicine or nursing. A nurse practitioner going before the Board of Nursing needs to be aware of this low standard, and prepared to properly rebut it in a contested case hearing.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

Medical Records: What Needs to be Included from a Legal Standpoint?

Alex Fisher and Erin Tolbert, the creator of MidlevelU, discuss what needs to be included in medical records from a legal standpoint. The original article and video, published on MidlevelU, can be found here. Although Erin and Alex discuss medical record keeping in the context of nurse practitioners, the same advice applies to other health care providers, including physicians and physician assistants.

Included in this video are some suggestions for best practices that health care providers should use when prescribing controlled substances to back up their decision making and protect themselves from disciplinary action. These recommendations include:

  1. Document a complete social history including a history of drug and alcohol abuse.
  2. Get a pain management contract in place and maintain this as part of the patient’s medical record for individuals who are prescribed these types of medications on a long-term basis.
  3. Consider drug testing patients who are prescribed controlled substances. Make sure your practice has a protocol in place regarding next steps when drug test results are inconsistent with the patient’s prescribed medication regime.
  4. Discuss (and document!) pain management alternatives before prescribing narcotic medications. Regulatory boards like to see that patients have explored options aside from long term pain management with prescription drugs.
  5. Make use of state controlled substance medication prescribing databases before prescribing controlled substances. In some states this is required by law. Document that you have checked this record.
  6. Don’t prescribe without documentation. Even if you aren’t charging a patient for a visit where controlled substances are prescribed, medical documentation is required.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

What Nurse Practitioners Need to Know Before Agreeing to License Restrictions

Attorney Alex Fisher recently had the opportunity to visit with Erin Tolbert, the creator of MidlevelU, an online resource for health care providers such as nurse practitioners and physician assistants, and discuss how nurse practitioners are regulated as a profession. The original article and video, published on MidlevelU, can be found here. Although Erin and Alex discuss restrictions in the context of nurse practitioners, the same advice applies to other health care providers, including physicians and physician assistants.

If you’ve been notified of pending disciplinary action against you as a nurse practitioner, agreeing to a simple restriction on your license rather than a more formal disciplinary hearing may seem like the obvious best choice to diffuse the situation. Perhaps the Board of Nursing puts an agreement on the table that allows you to practice provided that your charts are simply reviewed by a physician. Not too shabby given the alternative, right?

A restriction on your license to practice is a stipulation, usually given as a result of disciplinary action, that limits your scope of practice. A restriction may be a prescribing restriction or an oversight mandate, for example. What many nurse practitioners don’t know is that even the smallest restriction placed on your NP license can send your career into a tailspin.

There are times when agreeing to restrictions on your license as part of disciplinary action is going to be your best bet. But, agreeing to restrictions on your license should never be taken lightly or done without legal counsel as it can have some serious implications.

Restrictions placed on your license could, and often do, trigger administrative action from other organizations such as the DEA. As a result, your DEA license may be revoked. Restrictions may also result in decertification essentially making you ineligible to practice. As a result of changes to your certification and prescribing status, you may lose hospital privileges and ultimately your job.

Restrictions placed on your nurse practitioner license can ruin your ability to practice. Always seek legal council if you face disciplinary action, regardless of the offer put on the table by your board of oversight. You may be able to get a better deal or approach the matter in a way that allows you to keep your career.

 The following clip provides insight on the positives and negatives of agreeing to restrictions on your license.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus

A Delicate Balancing Act: The Supervision of Nurse Practitioners by Physicians

balancing rocksThis post, written by Alex Scarbrough Fisher, was originally published on midlevelu.com, and can be found here. It is republished with the permission of MidlevelU.com.

The supervision of nurse practitioners by physicians, in states that require such supervision, is often a delicate balancing act between responsibility on both the supervising MD and the NP. In order to fully illustrate this delicate balance, I will look at the specific requirements for  nurse practitioners and physicians in Tennessee.

If you live in a state that requires you as a nurse practitioner to have a supervising physician, I highly recommend reviewing the rules that govern you, as well as the rules and regulations that govern your supervising physician. Understanding what is required of each party will lead to clarity for both individuals, and hopefully a more enjoyable work environment, as well as a safer environment for your patients.

Requirements of Nurse Practitioners

In Tennessee, for example, nurse practitioners are required to keep a record of their current supervising physician with the Board of Nursing at all times. This record is commonly referred to as a “Notice and Formulary”, and must be filed within 30 days of any changes in supervising physician. This document includes notice to the Board of Nursing of who your supervising physician is, as well as a copy of the formulary describing what legend drugs you, the nurse practitioner, has permission to prescribe.

The notice and formulary is viewed as a contract between the nurse practitioner and the supervising physician authorizing what the nurse practitioner is permitted to prescribe, and who is supervising that prescribing. The Board of Nursing views the filing of the Notice and Formulary as the NP’s responsibility. As such, the Board won’t accept “I gave the notice and formulary to my supervising physician and he must have forgotten to mail it in” as an acceptable excuse to not having one on file. I recommend that all nurse practitioners ensure that they have a current notice and formulary on file by mailing in the notice themselves rather than relying on a staff member or their supervising physician to do so. The full Rules for Nurse Practitioners in Tennessee can be found here.

Requirements of Supervising Physicians

Supervising physicians in Tennessee are required to develop joint protocols between the supervising MD and the NP outlining the acceptable standard of care for patients to be treated and which drugs are appropriate to prescribe. These joint protocols should be dated and signed by the MD and NP, and should be maintained at their practice site. The supervising physicians is responsible for ensuring compliance with these joint protocols.

Supervising physicians in Tennessee are also responsible for reviewing 20% of all the nurse practitioner’s patient charts, and 100% of the NP’s charts when a controlled drug has been prescribed. This review should take place at a minimum of every 30 days. The full Rules for Supervision of a Nurse Practitioner in Tennessee can be found here.

Developing joint protocols with your supervising physician, and having him or her review 20% of your patient charts and 100% of charts where a controlled substance is prescribed allows for an extra level of protection for both NPs and patients. This provides a second set of eyes on a patient chart for an NP who may be unsure regarding their diagnosis, or who might even get audited by the Department of Health at some point during his or her career.

Joint protocols provide clarity for the NP and supervising MD as to standard of care and the appropriate way to handle patients in different situations. Although developing joint protocols and reviewing patient charts is the responsibility of the supervising MD, it benefits the NP to make current and future supervising physicians aware of these requirements if they are not already. For those nurse practitioners outside of Tennessee, reviewing your state’s applicable rules for you as a nurse practitioner is highly recommended to ensure success in your next supervising physician relationship.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

More Posts - Website

Follow Me:
TwitterLinkedInGoogle Plus