Colorado Unveils New Weapon in Fight Against Prescription Drug Abuse

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By Carole C. Schriefer, R.N., J.D., The Health Law Firm

In the United States, Colorado ranks among the highest in prescription drug abuse. Prescribing practices have contributed to both the overuse as well as the illegal use of controlled substances. Recently, the Colorado Medical Board in collaboration with the Colorado Dental Board, Colorado Board of Nursing, Colorado Board of Pharmacy, and the Nurse-Physician Advisory Task Force for Colorado Healthcare, passed a policy for prescribing and dispensing opioids. This is the first time that all four Colorado licensing agencies have worked together to formulate a common policy for health care providers.

The new guidance sets the tone for how complaints involving prescribing and dispensing controlled substances will be viewed by these regulatory boards.

To read the new policy in its entirety, click here.

An Overview of the Prescribing and Dispensing Policy.

The new policy aims to reduce prescription drug abuse by better managing opioid prescribing and dispensing. The policy states that providers working with patients who are prescribed opioids should:

– Follow the policy for prescribing and dispensing opioids;
– Be informed about evidence-based practices for opioid use in health care and risk mitigation;
– Collaborate with the integrated health care team to decrease overprescribing, misuse and abuse of opioids;
– Use the Colorado Prescription Drug Monitoring Program (PDMP) when initially prescribing medication and with each refill;
– Use caution when dispensing to new or unknown patients, filling weekend or late day prescriptions, and when filling prescriptions issued by a provider far from the location of the pharmacy; and
– Educate patients on appropriate use, storage and disposal of opioids, risks and the potential for diversion.

Red Flags.

The new policy describes certain “red flags” health care providers should look for when prescribing and dispensing opioids. It alludes to certain prescription amounts and types that will likely be considered substandard in the absence of a compelling reason for the prescription. For example, the policy advises opioid doses greater than the equivalent of 120 mg morphine are dangerous. The policy also advises against opioid treatment that exceeds 90 days. It’s suggested that prescribers should consider discontinuing opioid therapy when:

– The underlying painful condition is resolved;
– Intolerable side effects emerge;
– The patient’s quality of life fails to improve;
– Functioning deteriorates; or
– There is aberrant medical use.

Tread Lightly When Prescribing Opioids.

Whether you are a physician, nurse, dentist, pharmacist or other health care provider practicing pain management, you should read the entire policy and strictly follow its guidance. Keep detailed records of your pain patients’ care, including copies of PDMP data. As a professional dealing with pain patients, you should also feel comfortable referring appropriate patients to addiction and pain management specialists at any sign of abuse. Failure to follow the new policy may lead to disciplinary action against your license.

For more tips to protect yourself from being accused of overprescribing, click here for a previous blog.

Comments?

What do you think of Colorado’s policy for prescribing and dispensing opioids? Do you think this new policy will make an impact on the prescription drug abuse throughout the state? As a health care provider, will you follow the new policy? Please leave any thoughtful comments below.

Contact A Lawyer Experienced in the Representation of Health Care Professionals in Pain Management Defense.

The Health Law Firm attorneys represent physicians, pharmacists, nurses, clinics, dentists, pharmacies, health facilities and other health care providers in different cases involving allegations of overprescribing narcotics and pain medications. These include criminal investigations by local police and law enforcement authorities, investigations by the U.S. Drug Enforcement Agency (DEA), complaints against professional licenses, and other types of cases. Having attorneys familiar with the medical standards of care and guidelines for prescribing narcotics and having access to expert medical and pharmacy professionals who can testify as expert witnesses in such cases is also crucial. We have represented professionals in administrative investigations and administrative hearings at both the state and federal level.

Call (970) 416-7456 now or visit our website www.TheHealthLawFirm.com.

About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

 

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1999-2014 The Health Law Firm. All rights reserved.

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In Colorado, Are Threatening Statements Protected by Psychologist-Patient Privilege?

5571 darken lighten center w skin softBy Carole C. Schriefer, R.N., J.D., The Health Law Firm

Mental health providers and patients share a sacred bond. But is that sensitive relationship tarnished when a doctor testifies against patients?

That was the question posed to the Colorado Supreme Court in People v. Kailey. The state’s high court had to decide if a patient makes threatening statements during a therapy session, and the doctor reports these statements, can the doctor’s testimony against a patient be used in court?

Click here to read the entire case.

Case Background.

Randy Kailey was serving a 32-year sentence at a correctional facility in Colorado when he met with Brian Willson for a therapy session. Willson was a psychologist candidate working for the Colorado Department of Corrections (DOC). During the session, Kailey allegedly spoke threateningly about witnesses who testified against him during his trial. Willson considered these statements to constitute serious threats of violence.

According to Willson’s duty to warn, he submitted an incident report to the Colorado DOC. Based on that report and testimony from Willson, the State of Colorado charged Kailey with retaliation against a witness.

Kailey moved to exclude the doctor’s testimony, contending that Kailey’s statements should be protected by the psychologist-patient privilege. After a hearing, a trial court sided with Kailey, ruling that even after a mental health provider notifies law enforcement about the threatening statements, those statements remain privileged.

Colorado Supreme Court’s Dilemma.

All jurisdictions acknowledge some form of the duty to warn. However, there are disagreements in various jurisdictions over whether mental health providers can testify on threatening statements made by their patients when these statements have already been disclosed.

In the case discussed above, Willson’s testimony was critical to the prosecutor’s case. The suppression of evidence due to the psychologist-patient privilege would have significantly impeded Colorado’s ability to prosecute Kailey.

Colorado Supreme Court Decision.

In the end, the Colorado Supreme Court held that if a mental health provider believes that statements made by a patient during a therapy session threaten imminent physical violence against a specific person, and thus triggering the provider’s legal duty to warn, the patient’s threatening statements are not protected by the psychologist-patient privilege. Consequently, the Colorado Supreme Court held that the trial court erred when it excluded threatening statements made by Kailey to Willson on the grounds that the statements were protected by the psychologist-patient privilege.

FYI on Psychologist-Patient Privilege.

Psychologist-patient privilege is a privilege whereby a person can prevent the disclosure of a confidential communication made in the course of diagnosis or treatment of a mental or emotional condition by or at the direction of a psychologist. The requirements of this privilege are:

1. The communications must be confidential;
2. The therapist must be a licensed psychologists; and
3. The communications must occur in the course of diagnosis or treatment.

Almost all the states in the United States have specific laws on psychologists-patient privilege. The state laws vary with regard to the types of therapy relationships protected and the exceptions recognized. The privilege can be overcome under certain conditions, such as when the examination is ordered by a court. Be sure to consult with your own state for its specific statutes on the psychologist-patient privilege. If you have any question be sure to contact an experienced health law attorney.

Comments?

Do you agree or disagree with the Colorado Supreme Court’s ruling? Please explain your opinion.

Contact A Lawyer Experienced in the Representation of Psychiatrists, Mental Health Counselors, Social Workers, Licensed Marriage and Family Therapists and Other Mental Health Professionals.

We routinely provide deposition coverage to psychiatrists, mental health counselors, social workers, licensed marriage and family therapists and other mental health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing psychiatrists, mental health counselors, social workers, licensed marriage and family therapists and other mental health professionals in investigations at the Board of Medicine, Board of Psychology, or the Board of Clinical Social, Marriage and Family, and Mental Health Counseling. Call (970) 416-7456 now or visit our website www.TheHealthLawFirm.com.

About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. http://www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

 

HIPAA Violations in Colorado Can Incur Serious Punishments

5571 darken lighten center w skin softBy Carole. C. Schriefer, R.N., J.D.

The Health Insurance Portability and Accountability Act (HIPAA) is a well known Federal regulation among Colorado health care professionals. However, did you know that not complying with HIPAA mandates can cost you thousands of dollars in fines? Did you know that non-compliance could land you behind bars? Health care professionals and facilities across Colorado should be aware of these legal provisions.

Don’t Become a White Collar Criminal.

In June 2005, the U.S. Department of Justice (DOJ) clarified who can be held criminally liable under HIPAA. Covered entities and specified individuals, who “knowingly” obtain or disclose individually identifiable health information in violation of the Administrative Simplification Regulations face a fine of up to $50,000, as well as imprisonment up to one year. Offenses committed under false pretenses allow penalties to be increased to a $100,000 fine, with up to five years in prison. Finally, offenses committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain or malicious harm permit fines of $250,000, and imprisonment for up to 10 years.

HIPAA Violations Can Cost Big Bucks.

The “American Recovery and Reinvestment Act of 2009”(ARRA), that was signed into law in 2009, establishes a tiered civil penalty for HIPAA violations. The Secretary of the Department of Health and Human Services (DHHS) still has discretion in determining the amount of the penalty based on the nature and extent of the violation and the nature and extent of the harm resulting from the violation. However, the Secretary is still prohibited from imposing civil penalties (except in cases of willful neglect) if the violation is corrected within 30 days (this time period may be extended).

The following outlines the ARRA tiered civil penalty structure for HIPAA violations:

TIER 1

Violation:
Individual did not know that he/she violated HIPAA and by exercising reasonable diligence, would not have known.
Minimum Penalty: $100 per violation, with an annual maximum of
$25,000 for repeat violations. Note: This is the maximum penalty that can be imposed by the State Attorney General regardless of the violation.
Maximum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.

TIER 2
Violation:
HIPAA violation due to reasonable cause and not due to  willful neglect.
Minimum Penalty: $1,000 per violation, with an annual maximum of $100,000 for repeat violations.
Maximum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.

TIER 3
Violation:
HIPAA violation due to willfull neglect but violation is corrected within the required time period.
Minimum Penalty: $10,000 per violation, with an annual maximum of $250,000 for repeat violations.
Maximum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.

TIER 4
Violation:
HIPAA violation due to willful neglect and is not corrected.
Minimum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.
Maximum Penalty: $50,000 per violation, with an annual maximum of $1.5 million.

Who Is Responsible For HIPAA Violations?

The DOJ concluded that the criminal penalties for a violation of HIPAA are directly applicable to covered entities—including health plans, health care clearinghouses, health care providers who transmit claims in electronic form, and Medicare prescription drug card sponsors. Individuals such as directors, employees, or officers of the covered entity, where the covered entity is not an individual, may also be directly criminally liable under HIPAA in accordance with principles of “corporate criminal liability.” Where an individual of a covered entity is not directly liable under HIPAA, he/she can still be charged with conspiracy or aiding and abetting.

The Interpretation of “Knowingly.”

The DOJ interpreted the “knowingly” element of the HIPAA statute for criminal liability as requiring only knowledge of the actions that constitutes an offense. Specific knowledge of an action being in violation of the HIPAA statute is not required.

Consequences Include Medicare Penalties As Well.

DHHS has the authority to exclude a health care provider in violation of HIPAA laws from the Medicare Program and any covered entity that is not compliant with the transaction and code set standards by October 16, 2003 (68 Fed. Reg. 48805).

This is a powerful tool. Medicare exclusion can be a death sentence for a health care provider.

Who Carries The Big Stick Enforcing HIPAA?

The HHS Office for Civil Rights (OCR) enforces the privacy standards, while the Centers for Medicare & Medicaid Services (CMS) enforce both the transaction and code set standards and the security standards (65 Fed. Reg. 18895). Enforcement of the civil monetary provisions has not yet been tasked to an agency.

For more information on enforcement of the privacy standards, click here.

Comments?

Have you ever received discipline for a HIPAA violation? Do these penalties seem harsh to you? Please leave any thoughtful comments below.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (970) 416-7456.

About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Denver, Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2014 The Health Law Firm. All rights reserved.