Since late 2015, the Medical Board of California and the California Board of Pharmacy have begun to increase enforcement actions and penalties for perceived overprescribing of prescription drugs, particularly opioid drugs such as hydrocodone and oxycodone (Vicodin and OxyContin/Percocet).  High-profile celebrity deaths due to opioid overdose, coupled with rising addiction rates nationwide, have created political pressure on California agencies to do something about prescription drug abuse.  Physicians in California must be particularly careful, because state agencies are carefully reviewing the prescribing practices of physicians, including those in general practice, if there is a suspicion of over-prescribing.  Pharmacists, under the corresponding responsibility rules, face pressure from the Board of Pharmacy to report suspected prescription drug abuse, which may include notifying the Board of the source of prescriptions for suspected drug abusers.  Traditionally, our physician clients think of overprescribing as strictly a question of quantity—if the number of pills is within traditional limits, they reason, then they can’t be accused of prescribing too much.  In addition, responsible physicians often see their patients regularly, and so as long as they don’t prescribe pain medications “in bulk,” so to speak, they assume that they’re not overprescribing.

However, the Medical Board has taken a different view.  For every opioid prescription, Medical Board investigators will be looking specifically for an injury, a diagnosis, or a cause—a specific, charted reason why an opioid medication was necessary.  The Medical Board will also want to know what the long-term plan was to address the diagnosis, injury, or cause.  The longer a patient has been receiving opioids, the more suspicious the treatment will look to a reviewing physician or to an investigator.  The Board will reason that the more frequently a patient visits the facility, the more suspicion the patient should arouse in the physician.  Finally, the Medical Board will want to see referrals—to pain management if the issue is pain only, but also to neurologists, orthopedists, or other specialties depending on the problem.  Without referrals, the Medical Board may assume that the physician is not diligently reviewing the patient’s need for pain medication and will consider that overprescribing.

In late 2016, California Health & Safety Code section 11165.4 came into effect, which requires health care practitioners to “consult the CURES database to review a patient’s controlled substance history before prescribing a Schedule II, Schedule III, or Schedule IV controlled substance” on the first time and a four month intervals thereafter.   Failure to consult with CURES within the parameters of the law can result in referral to the professional’s state licensing board for “appropriate” administrative sanctions.

The enhanced expectations of the Medical Board combined with new rules for checking the CURES report place a heavy burden on physicians to carefully monitor and regulate prescribing practices.  A Medical Board investigator request for patient records which contain schedule II, III or IV controlled substance prescriptions can be a red flag that overprescribing is the target of the investigation.  For help with a California Medical Board overprescribing investigation or disciplinary action, please contact our experienced physician license defense attorneys for a consultation.