The human toll of the opioid crisis is enormous, with millions of Americans suffering from addiction and more than 90 people dying each day from opioid overdoses. It is widely recognized that a significant part of the problem is the overprescription of pain medications, such as oxycodone and fentanyl. For physicians who prescribe such medications, this presents important challenges.

Physicians must weigh carefully the benefit that such medications can provide to a given patient in severe pain while meticulously documenting their actions in compliance with increased regulatory oversight. In a worst-case scenario, failure to do either could lead to sanctions against a physician’s license.

In meeting these challenges, there is an increased need for physicians to ensure that they thoroughly examine their patients and rigorously document the care they are providing. Accepted standards of medical practice demand that physicians enter contemporaneous notes in the medical record containing the patient’s complaints, history, findings on appropriate examination, orders for tests or consultations, and diagnosis or medical impression.

When prescriptions are written, they must be preceded by an examination or evaluation of the patient, as appropriate, and the name, strength, and quantity of the medication should be contained, not only on the prescription, but in the medical record, either by placing a copy of the prescription in the chart or by documenting the necessary information in the progress note.

Concurrently, the increased use of electronic medical records (EMRs) presents the need for physicians to be vigilant about the reliability and maintenance of their EMR system. In my representation of pain management physicians, two examples have arisen recently that illustrate these points.

In one case, a physician who worked in a three-physician practice suddenly was faced with an owner of the practice who abruptly retired, and another who suffered a medical emergency that led to a six-month disability. The physician was alone in his practice and, unfortunately, the EMR system was not functioning properly. He had spent his entire career using paper records, and he did not have a firm grasp of how to use the EMR system. Furthermore, because he was not an owner of the practice, he did not have the authority to invest the practice’s money in fixing the system.

The result? Critical information gathered by the physician — patient histories, notes from examinations, and prescriptions written — did not become part of the patients’ medical record. Because his patient population consisted primarily of patients who required pain management, and because he prescribed a significant amount of opioids to manage his patients’ pain, his practice came under the scrutiny of the state licensing authority.

As a consequence, several of the physician’s patient records were subpoenaed by the licensing authority. When he reviewed those records prior to turning them over, the physician was mortified to see the wide gaps in his medical record.

Thus, even though he obtained a complete history and conducted a thorough examination of each of his patients on each visit, documentation was lacking. When he was called before an investigating committee of that licensing authority, the members were less than pleased.

In a second, similar case, the physician, who also practiced pain management and prescribed a significant amount of opioids for patients who were in severe pain, was in the process of converting his EMR system from one vendor to another. He also drew the attention of the state licensing authority due to the amount of opioids he was prescribing. When his medical records were subpoenaed, he was unable to produce the complete charts because, in the transition, the substance of many of his progress notes, as well as other components of the medical record, had disappeared.

The result has been devastating. In part, because of these missing records as well as other factors, the physician’s license has been temporarily suspended pending a full hearing.

How can physicians avoid such calamitous results? Physicians must understand that they will be held responsible for breakdowns in documentation that occur in their offices. The buck stops with the physicians providing the care. It is not the IT vendor who installs a faulty system that will pay the price for an inoperable EMR system — it is the physician. It is incumbent on physicians who use an EMR to ensure it is operating properly and that they know how to use it. This requires ongoing monitoring of the EMR system and immediate remedial action if problems arise. Waiting is not an option.

Furthermore, physicians using an EMR should internally monitor their records to assure themselves that the system is working properly and, equally important, that they are using it appropriately. When physicians see a patient, they need only check their previous progress note to confirm that their documentation of the previous visit was entered into the record properly.

Physicians also should scrutinize and become familiar with regulations promulgated by their state licensing authority so they can ensure that they are complying with requirements for prescribing, particularly when controlled, dangerous substances are involved.

These regulations will likely specify:

  1. appropriate dosage, strength, and quantity of the medication;
  2. under what circumstances multiple prescriptions may be written;
  3. whether a specific treatment plan must be developed;
  4. whether the physician must access a state prescription monitoring program;
  5. the necessity of a thorough medical history, including the nature, frequency, and severity of pain.

In today’s regulatory environment, it is highly recommended that physicians conduct audits of their medical records and billing procedures to ensure that their billing practices also are appropriate.

The current opioid crisis highlights how important it is for physicians to make concerted efforts to thoroughly document the details of their encounters with their patients and to ensure that their EMR systems are functioning properly by way of ongoing monitoring and periodic audits. With state licensing authorities putting the spotlight on those who don’t comply — and, in some cases, imposing strict sanctions — physicians cannot afford to be complacent.

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