Opioid epidemic spawns greater scrutiny of physicians as prescribers and employers

Regulators have intensified their monitoring of physicians who prescribe opioids, scrutinizing how providers run their practices, document patient conditions, and write prescriptions.

They want to ensure that physicians are following all accepted medical practices in treating pain. Scrupulously documenting treatment and prescription detail can help physicians avoid penalties. But maintaining complete records takes vigilance, including extra care to properly implement and regularly monitor the EMR .

Providers face a whole additional set of challenges as employers addressing opioid use in their own workplaces, balancing the rights of employees under the law – and restrictions in how employers may address suspected opioid abuse – with their obligation to ensure patient safety.

With the opioid epidemic claiming more than 90 lives each day from overdoses, failure to meticulously document information about prescribed opioids can result in sanctions on a physician’s license, including suspension or revocation.

While the use of EMR can make this task easier and less prone to error, the reliability and technical integrity of a physician’s EMR is critical and malfunctions can adversely affect a physician’s ability to comply with regulations, as I have experienced with my clients.

In one case, a physician was suddenly faced with running his practice solo as one partner was out on disability and the other retired. The practice’s EMR system malfunctioned and the physician didn’t have the authority to fund repairs. Having used paper records for most of his career, he was not entirely comfortable with EMR. Important information about his patients’ condition and prescriptions was not captured and saved in the EMR.

This physician prescribed a significant amount of opioids to manage his patients’ pain. This coupled with a lack of documentation in the EMR system drew the attention of the Medical Board, which called the physician before an investigating committee. The committee subpoenaed patient records and discovered gaping omissions in patient histories and examination notes, even though the physician had obtained the information. The physician had no proof, however, because it was not documented properly in the malfunctioning EMR system.

Another case involved a pain management physician who was in the process of changing his EMR system vendor. He, too, prescribed many opioids over the years for patients suffering severe pain. When the state licensing authority subpoenaed patient records, the physician was unable to produce complete patient charts because many medical notes and other EMR components had disappeared in the vendor transition. The licensing authority revoked the physician’s license, citing the incomplete records as well as other factors.

Ultimately, the physician will be held responsible for failings and gaps in documentation. The following safeguards, however, can reduce documentation problems.

• Ongoing review and monitoring of the EMR system to ensure it is working well and being used appropriately.
• Correcting any problems — technical or otherwise — immediately.
• Becoming familiar with the state licensing authority’s regulations on controlled dangerous substances to ensure compliance in prescribing and documentation.
• Ensuring billing practices are appropriate since authorities also audit billing procedures.

Given the breadth of the opioid epidemic, it’s not surprising that the crisis is affecting the workplace. Seven in 10 employers reported some impact of prescription drug usage in the workplace during a 2017 study by the National Safety Council. Medical practices may be more prone to issues because of the employees’ proximity to medications and prescription blanks. While their training and background may give physicians an advantage in identifying the signs of opioid use and abuse, it doesn’t necessarily prepare them for how to respond to these issues in their capacity as employers.

Providers must understand their obligations and the employee’s rights under the law. Many costly lawsuits and regulatory enforcement actions involve well-meaning employers who simply do not understand what the law requires. Unfortunately, ignorance is not a defense and even an unintentional violation of the law can result in liability for the employer.

Typically, employers find themselves in a situation where they know or suspect an employee is taking opioids and their use may be impacting the employee’s ability to safely or effectively perform their duties and responsibilities. Another common situation occurs when the employer suspects workplace behavior or performance problems – absenteeism, lateness, missed deadlines, rude or inappropriate behavior toward staff or patients, poor hygiene – are connected to opioid use.

Many employers make the mistake of believing they can handle the matter in whatever manner they deem appropriate because the employee is “at-will” and, therefore, can be terminated at any time with or without notice or cause. However, the concept of at-will employment is virtually useless to employers in these situations. Whether an employee is at-will, has an employment contract, or is a member of a union, the employer must comply with laws such as the Americans with Disabilities Act (ADA) and applicable state laws setting forth obligations and rights pertaining to disabled employees.

Although the law affords significant protections to employees who are disabled or perceived as disabled, employers still have the right to address employee performance problems, to make sure that the employee’s opioid use does not present a safety risk and to ensure that the employee is able to perform the essential duties of his or her position. In fact, a healthcare provider may be legally obligated to address such potential employee issues because of the threat to patient safety. Even an employer with extensive experience in handling these issues may have difficulty balancing the employee’s rights and the employer’s obligations.

One of the first challenges is recognizing that employee rights and protections may limit the employer’s ability to investigate and address suspected opioid use in the workplace. For example, the ADA and certain state laws may limit when an employer can ask about usage of prescription medications or ask an employee to submit to a test for opioid usage. Employers who rely solely upon suspicion of opioid abuse in taking adverse action against an employee could face a claim of discrimination based upon a perceived disability.

Recognizing when the employer has an affirmative obligation to offer assistance to employees who are using opioids poses another constant challenge. The employee typically triggers this obligation when advising the employer that they have a medical condition that is impacting their ability to safely or effectively perform their duties and responsibilities. (The medical condition could be the actual opioid usage or the underlying medical condition for which the opioid is prescribed.) When the obligation is triggered, the employer must engage in an interactive dialogue to clarify the employee’s needs and limitations and identify whether they can provide reasonable accommodations to the employee. (This is known as the ADA interactive process.) Examples of reasonable accommodations include an unpaid leave of absence, job restructuring, or a modified or part-time work schedule.

Getting the interactive process right is a big part of insuring that the employer is properly handling employee opioid usage, but it doesn’t stop there. Employees may have other rights under the law. For example, the Family Medical Leave Act (FMLA) may grant an employee the right to take up to 12 weeks of unpaid leave.

It is critical for employers to educate themselves as to what laws apply. For example, the ADA generally applies if the employer has 15 or more employees while the FMLA generally applies to employers with 50 or more employees. However, some state laws afford disability-related protections to employers that have just one employee. After confirming which laws apply, the employer should implement a written disability and impairment policy consistent with the law and addressing such issues as the interactive process, reasonable accommodations, and drug testing.

Another important step - don’t run from the problem. Employers must be proactive in addressing any underlying performance and workplace safety issues. This means documenting performance problems and safety concerns, following progressive discipline regularly, using performance improvement plans, if appropriate, and imposing discipline in a consistent manner for all employees, even those with protected status. Being proactive will put the employer in the best position to defend any adverse action they may have to take against an employee taking opioids.

Finally, physicians must properly train management on how respond to possible opioid use and disability-related issues. Most litigation arises from a lack of knowledge regarding the employer’s obligations and the employee’s rights. If the front-line managers don’t know the appropriate steps to take, the physician or practice owner will ultimately pay the price.

Joseph M. Gorrell, Esq. and Matthew M. Collins, Esq. are both Members at Brach Eichler LLC, a law firm in Roseland, New Jersey. Mr. Gorrell is a Member in the Health Law practice and may be reached at 973-403-3112 or jgorrell@bracheichler.com. Mr. Collins is a Member in the Labor and Employment practice and may be reached at 973-403-315 or mcollins@bracheichler.com. For more information, visit www.bracheichler.com.

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