1. Professional Boundaries Medical Practice Act, Laws and Resources Alan I. Kaplan, Attorney at Law www.alanikaplan.com

2. Learning Objectives Not to learn all the laws Understand Rationale Underlying Laws Develop Strategies to: –Avoid Board Scrutiny –Invite Board Scrutiny Where Appropriate –Productively Respond to Board Scrutiny Develop Understanding of Political Realities that Drive Board Actions

3. What Board Does and Why Mission of every health care licensing board—To protect the public, not the licensee. –Burden on licensee to show they acted properly –Take pains not to antagonize Board personnel Board Members vs. Board Staff –Differing responsibilities and functions

4. What Board Does and Why Political realities driving board actions –News Media Reports Conrad Murray-Kept Cal License-Board Too Soft Texas Board too soft Interesting discipline cases reported-sexual misconduct –Governor and Legislature –Board staff responses-actions, website –Money spent on investigation-”Tipping Point”

5. Board Structure Separation of powers (Legislative, executive, judicial) within the Board –Enactment of regulations and policies –Disciplinary players-Executive staff, Attorney General, Office of Administrative Hearings and ALJ Powers and rights of Board Powers and rights of Licensees

6. Medical Practice Act Structure and Function of Medical Board Ban on corporate practice of medicine (2052) Discipline Miscellaneous (laser light study, etc.)

7. Medical Board Regulations Passed by Board after public comment Same force as statutes Board’s interpretation given great weight by courts Posted on Med Board’s website

8. Medical Board Policies Written and Unwritten Enacted without public comment May or may not be on website Contrary to Board statements, do not constitute either law or statement of standard of care.

9. Use of Attorneys Attitude of Board investigators Costs vary based on how early utilized Negative perception that presence of attorney signifies guilt Section of attorney-Board experience Compensation Insurance issues

10. Adopting proper attitude Concern with Board’s mission Candor Completeness of records produced Use of expert reports Behaviors to Avoid Criminal Violations-First and Second Offenses

11. Problem areas Falsifying applications Crimes-felonies misdemeanors and crimes Unlicensed practice Conduct out of the office CME documentation Renewal fees “Unprofessional Conduct”

12. Resources www.Medbd.ca.gov www.dea.gov www.abms.org www.cmanet.org www.ombc.ca.gov www.supportprop.org medbd.ca.gov/pain_guidelines.html www.alanikaplan.com

13. Strategies to Avoid Adverse Scrutiny Employees Patients Statistical Transparent record keeping Internal audits Criminal violations Suspicious activity by patients Business arrangements

14. Case Examples Med Board Precedential Decisions Sample Med Board cases DEA Medicare/MediCal

15. Medical Equivalent Dose (MED) A measure of the total amount of opioid load Opioid Dose Calculator – www.agencymeddirectors.wa.gov/guidelines.asp www.agencymeddirectors.wa.gov/guidelines.asp Ex: oxycontin 10 mgm, 6/d + vicodin 6/d = 120 MED MTUS: “ Recommend that dosing not exceed 120 mg oral morphine equivalents per day…In general, the total daily dose of opioid should not exceed 120 mg MED. Rarely, and only after pain management consultation, should the total daily dose of opioid be increased above 120 mg oral morphine equivalents (Washington, 2007).” © Copyright EK Health Services, Inc. ALL RIGHTS RESERVED Do Not Duplicate or Distribute without written permission 9/29/2016

16. CDC Grand Rounds: Prescription Drug Overdoses – an epidemic, January 13, 2012 2007 – 27,000 unintentional drug overdose deaths, 1 death every 19 minutes. 2007 – approximately 700 mg of morphine/person, or 1 vicodin q4h for 3 weeks/person The highest risk is patients who are prescribed >100 MED and seek care from multiple doctors. © Copyright EK Health Services, Inc. ALL RIGHTS RESERVED Do Not Duplicate or Distribute without written permission 9/29/2016

17. Practitioners’ Dilemma Minimizing Potential For Abuse and Diversion of Scheduled Medications Without Compromising Access For Pain Patients With Legitimate Medical Needs Pain Is Subjective. How Do You Measure Pain? How Do You Measure The Efficacy of the Prescribed Medication? 9/29/201617 © Copyright EK Health Services, Inc. ALL RIGHTS RESERVED Do Not Duplicate or Distribute without written permission

18. Practitioners’ Dilemma Minimizing Potential For Abuse and Diversion of Scheduled Medications Without Compromising Access For Pain Patients With Legitimate Medical Needs Pain Is Subjective. How Do You Measure Pain? How Do You Measure The Efficacy of the Prescribed Medication? 9/29/201618 © Copyright EK Health Services, Inc. ALL RIGHTS RESERVED Do Not Duplicate or Distribute without written permission

19. Why do doctors overprescribe pain medications?  They Believe They Are Helping Their Patients.  They Are Intimidated By Their Patients.  They Are Naïve And Believe Everything Patients Says About The Pain… pssst, Patients Have Learned to Exploit the System!  Their Business Model May Depend On Keeping A Large Number Of Patients On Chronic Medications.  They Believe In The “Medical Model” Of Pain, i.e., The Pain Is Physiologic.  Inertia  WC Payers Will Not Authorize Detoxification Programs, Cognitive Behavioral Therapy Or Other Treatment Options.  $$$, Follow The Money! 9/29/201619 © Copyright EK Health Services, Inc. ALL RIGHTS RESERVED Do Not Duplicate or Distribute without written permission

20. Predictors of Drug Abuse  Personal and family history of prescription, alcohol, and illegal drug use  Age 16 – 45  Cigarette smoking  History of preadolescent sexual abuse  Criminal behavior  Presence of psychiatric disorder  Aberrant behavior – appearance 9/29/201620 © Copyright EK Health Services, Inc. ALL RIGHTS RESERVED Do Not Duplicate or Distribute without written permission

21. CURES Responsible for assisting in the reduction of diversion without affecting legitimate practice and medical care. 9/29/201621 © Copyright EK Health Services, Inc. ALL RIGHTS RESERVED Do Not Duplicate or Distribute without written permission