Medical Boards and Physician Practice Poll 2019 – Part 4

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By R Carter

In Part 3 we looked at prevailing attitudes and beliefs regarding the use of opioids in medicine vs abuse and addiction. In Part 4 we’ll look at the impact law enforcement has had on physician practice and care for patients as well as some unusual requirements found for patient contracts used in pain management.

Asset Forfeiture

A long standing tool used by the DEA against foreign drug cartels who transport and sell drugs in the US has been asset forfeiture, the confiscation of all assets related to a criminal activity. This is done to disrupt the criminal enterprise and to prevent flight from prosecution. Asset forfeiture is treated like a financial obligation to the State, for the cost of protecting its citizens. Asset forfeiture comes in two forms, criminal and civil and while there are some differences in how settlement is awarded for the parties, for all practical purposes they operate the same.

Actions taken against physicians for prescribing outside the boundaries of legitimate medical practice are civil actions. Under those rules, assets are first seized, a letter is sent to the owner from the seizing agency, announcing the seizure and the defendant then has 35 days to file a claim for the assets. The owner must file a claim to later protect his property in court. A U.S. Attorney has 90 days to review the claim and to file a civil complaint in U.S. District Court. The owner then has 35 days to file a judicial claim in court asserting his ownership interest. Within 21 days of filing the judicial claim, the owner must also file an answer denying the allegations in the complaint. Once done, the forfeiture case is fully litigated in court. While initial phases have specific time limits the litigation and resolution following a ruling can take years. 

Under these conditions assets include moneys used in the business of the defendant, including any future earnings and medical claims by insurance carriers. In civil cases the defendant need not be judged guilty of any crime; it is possible for the Government to prevail by proving that someone other than the owner used the property or assets from the property to commit a crime. A patient who has been prescribed a controlled substance and in turn sells it, satisfies this condition, regardless of a physician’s innocence or knowledge of such activity.

The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies. The USMS currently manages around $2.4 billion worth of property. The United States Treasury Department is responsible for managing and disposing of properties seized by Treasury agencies. The goal of both programs is to maximize the net return from seized property by selling it at auctions and to the private sector, then using the property and proceeds to repay victims of a crime. If any funds remain after compensating victims, the remaining goes for law enforcement purposes.

Who’s the Victim?

Under these stipulations is a physician the victim of a patient who sells the drugs prescribed to them? The short answers is no. The physician is viewed as part of the criminal enterprise, the State is considered the victim, so any funds seized in asset forfeiture are retained by the State with a portion going to the arresting agency.

Under such disproportionate guidelines a physician is unable to mount a defense as his assets, both current and future, are inaccessible to him. The physician must rely on a State appointed attorney unless they have friends and family which come to his aid. Regardless of a physician’s efforts to prevent such an occurrence, as in the example above, he’s not the victim and under these rules, asset forfeiture, as used in civil cases, becomes a means to transfer wealth from a US citizen to the State. Many view this as “a legal crime” because current rulings disproportionately favor the State and arresting agency.

We asked patrons if they felt asset forfeiture, as used against criminal enterprises in the war on opioids, was an important and necessary tool. 53.1% of respondent answered no, 18.3% of respondents answered yes and 28.6% were uncertain.

Figure 32 – The use of asset forfeiture against criminal enterprises is a vital tool in the war on opioids?

Next we asked patrons to respond to the following answers regarding asset forfeiture as used against physicians charged with prescribing outside the boundaries of legitimate medical practice. Patrons were allowed to choose up to two answers.

38.7% said they thought it was misused by law enforcement, 19.6% said it was misused by law enforcement and needs better oversight. 8.8% said it was misused by law enforcement and that a portion of the funds should be returned to victims. 8.4% were uncertain but believed any assets needed to be retained by the general fund. 2.6% felt asset forfeiture was essential and needed to remain as it is. 2.6% thought it was misused but assets should remain with the Government. 6.5% thought it was misused and assets should go to victims. 4.3% had no thoughts on whether is was used correctly or incorrectly but thought the assets should go to victims, 1.9% thought there was some misuse and better oversight was needed. 6.6% thought there was some misuse and there needs to be better oversight with assets going to the general fund.

The question by intent hid two facts from respondents; the purpose was an effort to eliminate bias against Government in answering the question. The term victim did not specifically identify who the victims were. Civil asset forfeiture as used against doctors who prescribe controlled substances, the Government is considered the victim. Also, the term general fund was not identified as being the arresting law enforcement agency. 

As it was worded, most respondents probably assumed a victim was either a physician or a 3rd party, and a general fund meant a general government fund. Still, 85.8% of respondents thought asset forfeiture laws were misused, 8.5% thought there was only some misuse, the remaining 10.6% thought it was essential or they were uncertain.

During the time the poll was conducted and prepared, a ruling by the Supreme Court opened a door to challenge how asset forfeiture is used by state and local governments. For a more detailed explanation follow this link.

Figure 33 – Asset forfeiture as used against physicians charge with violations of the Controlled Substance Act has been?

Next we asked patrons if law enforcement has circumvented physician rights to due process by the manner in which they operate. 78.3% answered yes, 2.6% no and 18.3% were uncertain.

Figure 34 – Law Enforcement has circumvented physician rights to due process by the manner in which they operate?

Once law enforce has investigated suspicions of prescribing outside the boundaries of legitimate medical care, findings must be reviewed and a determination made on whether or not a violation has taken place. Traditionally this determination is made by the paid consultant used prior to an investigation. We asked patrons if they thought a physician unrelated to the investigation should be used or the State Medical Board, 100% answered yes.

Figure 35 – State Medical Board or an independent physician should be used to determine violations of the Standards of Care

Patient Contracts

Standards of care for chronic pain management with opioids includes having patients sign a patient contract outlining do’s and don’ts while under medical care. There are no standards for what should be included in a patient contract, no State or Federal guidelines which are enforced. Physicians are allowed to create their own contracts which leads to misuse and abuse as seen in the next examples.

Such abuses also reflect the beliefs and attitudes of the clinic and prescriber. For this reason, when time allows, patients considering a new prescriber should complete an initial assessment and review patient contracts before discontinuing service from a previous provider.

With that in mind, this poll included seven questions from some of the more egregious examples found in a patient contract.

We asked patrons if a patient contract included a clause that allowed the prescriber to report any type of non-compliance or suspicion to law enforcement or the DEA, would that person sign the contract? 77.2% said yes they would, 12.2% said no and 10.1% were uncertain.

Figure 36 – Patient contract had clause allowing them to report non-compliance to law enforcement and or the DEA would you sign?

At first I was surprised by the number of people who didn’t have a problem with this, until I remembered the majority of CPP’s who frequent this sight are honest law abiding citizens, so naturally they wouldn’t be opposed to such a condition in a contract.

Next we asked if the contract included a clause which forbids driving a car while taking medication, would they sign the contract. 21.5% said yes they would, 69% said no and 9.5% were uncertain.

Figure 37 – Patient contract had a clause which forbids driving a car while taking medication, would you sign it

Next we asked if the patient contract included a clause which required or allows for a criminal background check, would you sign the contract? 43.2% said yes they would sign, 47.1% said no and 9.7% said they were uncertain.

Figure 38 – Patient contract included a clause that allowed for a criminal background check, would you sign the contract

Next we asked if the contract has a clause which required you to contact your primary care provider for all emergencies, including those related to treatment from the pain specialist, would you sign the contract? 47.7% said yes they would sign, 25.8% said no and 26.4% were uncertain.

Since emergencies from treatment carry with them an amount of liability for the professional providing the treatment, a primary care provider contacted for an emergency based on treatment from another provider would most assuredly refuse involvement and direct the patient to an emergency room. There the patient would be confronted with the same issue, unless the patient’s life was at risk. This is especially true if the emergency involved inadequate pain management. In such cases the patient would be stranded without access to any medical care.

Under these circumstances it would be best for the patient signing the contract to strike this clause from the contract by drawing a line through it and initialing it. The prescriber providing treatment is always liable for complications or emergencies related to the patient response to treatment. This is a legal obligation of the provider.

Figure 39 – If a patient contract had a clause which said contact your PCP for all emergencies, including those related to the pain specialist, would you sign the contract?

Next we asked if the contract forbade a patient from using over the counter (OTC) medications without first getting approval from the prescriber and doing so required an office visit, would the patient sign the contract. 22.1% said yes they would sign, 66.1% said no and 11.8% were uncertain.

Figure 40 – Patient contract forbids the use of over the counter medication without first getting approval which requires an office visit, would you sign the contract?

Next we asked, if the contract required granting consent for audio video recording, to be used for any purpose by the clinic, would you sign the contract. 22.3% said yes they would sign, 58.5% said no and 19.2% were uncertain.

Audio video recording of patients in a medical setting is traditionally used for teaching or research purposes. Any request for this type of surveillance or documentation will include considerable details on how the information would be used and under what conditions; this is to ensure compliance with HIPAA law. A blanket waiver is outside the boundaries covered by HIPAA and exposes an individual to unnecessary risks. Furthermore, if permission were granted, there’s usually a time limit under which such information can be use. Any use beyond that requires additional written permission from the patient.

Figure 41 – If a patient contract required giving you giving permission for audio video recording for any use by the clinic, would you sign the contract?

Next we asked if a patient contract included a clause allowing a clinic to notify the Motor Vehicle Authorities that you were driving under the influence of medication, would you sign the contract. 10.1% said yes, they would sign the contract, 79.5% said no and 10.4% said they were uncertain.

There is no precedence in medicine or under the law for such an action from a healthcare provider. Healthcare providers don’t, as a usual course of business, concern themselves with whether or not individuals have a current auto tag, driver’s license or whether or not an auto has proper emissions, meeting EPA standards nor could they do anything about it if there was problem in this area.

So this type of requirement in a patient contract appears to be more along the lines of intimidation, as in if you do something I don’t like I’m going screw with you every way I can.

Figure 42 – If a patient contract included a clause allowing a clinic to notify the Motor Vehicle Authorities that you were driving under the influence of medication, would you sign the contract?

Next we asked if a patient contract included a clause which forbade prescribing opioids for pain management unless approved by your next of kin, would you sign the contract. 10.3% said yes they would, 83.2% said no and 6.4% were uncertain.

Again there is no precedence for such a requirement in medicine or under the law, unless the patient was a minor, in which case, they can’t enter into any type of contract. Or if the patient had some type of mental or emotional problem which required someone else to be a guardian, in which case the guardian would have to sign the contract, not the patient.

Under current law an adult of legal age does not require consent or permission from anyone other than themselves for medical care. Such a clause would in fact invite conflict within a family, doing more damage than good. The only rational conclusion for having such a clause is to protect the liability of the provider from family members who might later sue for some unknown reason.

Figure 43- If a patient contract included a clause which forbade prescribing opioids unless approved by your next of kin, would you sign the contract?

A question not included in this poll but seen in patient contracts, was in regards to signing a waiver that would require giving up your rights to legal counsel and waive your right for suing a provider for medical errors occurring during the course of treatment.

It was assumed most would recognize this for what it is and be opposed to it. As a patient, you can’t be compelled by any means or for any reason, to give up your right to legal counsel or action in the event of a medical mishap. A medical professional is liable for the care they provide unless they can prove such care was based on false and inaccurate information.

These previous eight questions and the one above came from a single source, a pain management specialist in Columbus Ohio. The following link gives more examples of how coercion is used to brow beat patients into compliance and give providers absolute authority to do anything and not be held accountable for it. See these examples of when you should really be afraid of your provider.

This provider has forty five pages of do’s and don’ts on their contract, and all must be signed on each office visit. As a routine course of business, if you refuse to sign you are told you can’t be treated or receive medication. Taken together, the previous nine questions send an obvious message; any provider who operates this way is not only paranoid but unethical, exploiting the infirmaries of their patients for some type of personal gain.

These are the worst examples of coercion used to exploit patient fears and concerns in a healthcare market where too few providers practice. These conditions and requirements used by this clinic are violations of HIPPA, legal and personal rights granted to everyone as a US citizen. Clinics which operate in this manner are, for all practical purposes, predatory, preying on a patient’s lack of understanding as wells as preying on their disadvantages from a medical condition.

As all chronic pain patients taking opioids are aware, in this current environment, finding a prescriber is a very difficult thing to do. For a prescriber to have the ability to operate in such an unprofessional and unscrupulous way, demonstrates how State Medical Boards continue to fail in their primary mission of protecting the public’s healthcare interests. Yet these types of appalling examples occur daily across the nation, with Medical Boards, Insurance providers, pharmacies and ethics boards at both a local and State levels, looking the other way. All in the name of addressing, in an indirect way, a minority of our population who abuse or become addicted to opioids. Private, public and Government entities which squeeze honest, law abiding citizens in this manner, they are an affront to every ethical standard they themselves demand for themselves.

The duality of one set of rights for them and a lesser set for chronic pain patients must come to an end, but will only do so when we the chronic pain community and citizens in general, unite and demand fair, equal and unbiased access to healthcare.

The honest and compliant patients who do not abuse drugs or fall into addictive behavior currently have no voice. We are told by those in positions of authority that they will speak on our behalf yet nothing changes. It is up to organizations like this to educate and inform patients about their rights.

There was a time in this country when these types of abuses were considered unethical and any doctor accused of these things, would have been investigated. This is still true for most practicing physicians, but for those working in pain management it is not. Such actions today are just the usual course of business.

If you are a chronic pain patient who has experienced something similar, CERGM and Don’t Punish Pain Rallies which are organized at both a state and national level, will consult with you on what options if any you may have for your unique situation.