Author: Eli Stutsman

Physicians, pharmacists, and nurses: Are you stressed by license or renewal applications?

I have written on this topic before. Ten months ago I wrote about mandatory reporting requirements and the dreaded “yes questions.” Nineteen months ago I asked whether license applications or license renewals caused a sinking feeling in the pit of your stomach and wrote about that. Today I am revisiting this topic because it is part of my practice every week. Last week I helped a new graduate make her first license application and a seasoned professional file his license renewal application. Both had alcohol-related incidents to report and explain. Last week I also helped three nurses and two physicians that were either “caught,” or otherwise had to self-report and explain alcohol or drug activity. It should come as no surprise then that the Oregon State Board of Nursing, the Oregon Board of Pharmacy, and the Oregon Medical Board are all well experienced with substance abuse issues and arrest records. The good news is that whether you are a nursing, pharmacy, or medical student, a recent graduate, or a licensed professional, if you have a substance abuse issue or arrest record, much can often be done to help you obtain or maintain your professional license.

Forward thinking medical students have time to act before applying for licenses

One forward thinking pharmacy student and another forward thinking medical student wanted to determine before starting their educations whether their arrest records involving drugs or alcohol would preclude them from obtaining a pharmacy or medical license upon graduation. The medical student would also need a DEA Registration. One nice thing about helping students at the beginning of their educations is the element of time. I can help a student anticipate what lies ahead, and understand what he or she can do ahead of time to improve the odds of being licensed upon graduation. Much can be done to help students prepare themselves well before it is time to apply for that first license.

Recent medical graduates likely have more to help their license applications than they know

If you are about to graduate as a nurse, pharmacist, or physician, and the thought of applying for your first license causes a sinking feeling in the pit of your stomach, there is reason to be hopeful. It is my experience that whatever drug, alcohol or arrest history is in your past, there will be many positive things to stress in your favor when applying for your first license. You are a new graduate after all, so you have done a number of things right; what are they? The key to this approach, however, is that whatever drug, alcohol or arrest history is in your past, is must truly in your past. If, for example, you have a drug history and are arrested for a drug violation while your license application is pending, that drug arrest presents a much more difficult obstacle to overcome.

Help for seasoned physicians, pharmacists, and nurses when renewing

Licensed professionals often seek help with their license renewals and must report certain drug and alcohol related activity, convictions, and some arrests. If you find yourself in this situation you are not alone, and the Oregon State Board of Nursing, the Oregon Board of Pharmacy, and the Oregon Medical Board are all well experienced with drug, alcohol, and arrest records.

Last week, I helped one licensed heath care professional complete his renewal application. He had an alcohol related incident since his last renewal but he had also done everything necessary to take care of his health and return to work. He did the hard work before I became involved and my role was limited to assisting his explanation and assembling the documents I knew his licensing board would expect to see to ensure he is healthy, competent, and safe to return to work.

Some time ago, I helped an out-of-state nurse obtain her Oregon nurse’s license. Her situation was not uncommon. When she was young, she incurred a relatively minor drug and arrest record, but it was close in time to when she obtained her first nursing license, so her first nursing license was issued with heavy restrictions that were never lifted. When she called upon me to help her apply for her Oregon nurse’s license, she was emotionally beaten by the restrictions that had haunted her practice for a decade. Once we started working together, I was impressed by all that she had accomplished personally and professionally since she was first licensed. Whatever happened a decade ago was old history, no longer relevant in gauging who she is today. All that we needed to do was organize and present her accomplishments in a way that could be understood and verified by the Oregon State Board of Nursing. Her unrestricted nursing license quickly issued, with no interview and no further questions. I was happy for her and impressed by the Oregon State Board of Nursing for processing her nursing license application so expediently.

A perfect storm is brewing for physicians prescribing narcotics

Defending physicians prescribing narcotics for chronic pain has never been easy and I have long criticized the the Drug enforcement Administration (DEA) for conflating the civil standard of care with the criminal conviction standard, thereby criminalizing the practice of medicine. Sixteen months ago I commented that the DEA unnecessarily extends its investigations to the detriment of physicians and patients (DEA investigations: How much is too much?), and 11 months ago I commented that a new standard of care has emerged for the treatment of chronic pain (The pendulum has swung: Treat chronic pain cautiously). Now Attorney General Jeff Sessions, who heads the DEA, has ordered his federal prosecutors to seek the maximum punishment for federal drug offenses. All tolled, a perfect storm is brewing for physicians prescribing narcotics to treat chronic pain.

Treating chronic pain > 90 days and 120 MED (morphine equivalent dose)

With a few exceptions (e.g., cancer pain or hospice care), if you treat chronic pain with narcotics in excess of 90 days and 120 MED (morphine equivalent dose) and your prescribing practices have not evolved over the past five to seven years consistent with the emerging standard of care, you have likely failed to “keep up” and you may be at risk of regulatory intervention. If you treat chronic pain with narcotics in excess of 90 days and 120 MED, and you are not a pain specialist, or you do not refer your patients to a pain specialist, and your patients are not on taper plans, your medical practice may be a ticking time bomb

Prescribing guidelines: The emerging standard of care

The following practice guidelines, offered by the Oregon Medical Board and Oregon Health & Science University (OHSU), reflect current standard of care expectations when prescribing narcotics to treat chronic pain:

If your practice is not in line with these recent guidelines, you may be risking sanctions by your state medical board or the DEA. If your practice comes to the attention of your state medical board, your medical license may be subject to quick restriction or threatened revocation. Similarly, if your practice comes to the attention of the DEA, your DEA Registration may be subject to restriction or revocation and, in a worst case scenario, you may be subject to a criminal investigation. This already serious problem has been exacerbated by a newly invigorated DEA that has been instructed United States Attorney General Jeff Sessions to pursue the maximum punishment available for federal drug law violations.

Physicians, marijuana, the new DEA, and the Oregon Medical Board

Physicians beware: marijuana may complicate your professional life

I earlier wrote about marijuana, the practice of medicine, and the Oregon Medical Board, cautioning physicians that regardless of state law, marijuana is still a Schedule I banned substance under federal law, meaning that without a research permit or exception, it cannot be used or prescribed for any purpose under federal law. Consequently, I cautioned physicians not to become complacent when recommending marijuana for medical use and not to confuse compliance with the Oregon Medical Marijuana Program (OMMP) with meeting the applicable standard of care.

Admittedly, under former Justice Department policy, federal law has been lightly enforced and in those states where marijuana is “legal,” a lax attitude prevails among the general public. For those of us that possess professional licenses, however, we are often held to higher standards and this seems to be particularly true for Oregon physicians, whether they are recommending marijuana for medical use, or consuming marijuana recreationally. This point was hammered home earlier this month when I represented two physicians during their Investigative Committee (IC) interviews at the Oregon Medical Board. One physician had recommended marijuana for medical use. Although he had strictly complied with the Oregon Medical Marijuana Program (OMMP), the Medical Board’s concern was the standard of care. The other physician had never recommended marijuana for medical use, but he had admitted to personal use, and not always in a state where it was legal under state law. Both physicians were honest, forthcoming and well-intentioned, but marijuana had complicated their professional lives, something we all want to avoid.

Physicians, the times they are a changing: the new DEA

The times are not getting any easier for physicians recommending or using marijuana. New Attorney General Jeff Sessions, who heads the Drug Enforcement Administration (DEA), has long opposed the legalization of recreational marijuana and yesterday, Sean Spicer, the President’s press secretary, explained during his daily press briefing that under the new administration we can expect “greater enforcement” of federal law banning the recreational use of marijuana even in those states where recreational use is “lawful” under state law. I suspect the Oregon Medical Board was not surprised. During a side conversation earlier this month, a Medical Board investigator commented this might happen under the new administration and, a few weeks later, it did. I think it is safe to assume that in this new era, the Oregon Medical Board will have still greater concerns about the recreational use of marijuana by physicians in any state, including Oregon, where it is “legal.”

Oregon Court of Appeals reverses trial court in my clients’ favor

Appeal and cross-appeal

This is a case I took up on appeal for another lawyer, and won a reversal – the Court of Appeals affirmed the trial court’s rulings in our favor and reversed the trial court’s rulings against us, a complete victory for our clients.

I represented the Knudsens, who had been sued by the Grimstads over an inheritance. Three key legal claims were at issue. The trial court awarded the Grimstads part of the Knudsens’ inheritance under claims of (a) unjust enrichment and (b) money had and received, but denied the Grimstads’ claim of (c) intentional interference with prospective economic advantage.

Both parties appealed, resulting in an appeal and cross-appeal. On June 9, 2015, after extensive legal briefing, the appeal and cross-appeal was argued to the Oregon Court of Appeals.

The Court of Appeals’ opinion

One and one-half years after oral argument, the Court of Appeals issued a complex 29-page opinion, ruling in my clients favor and against the Grimstads on all claims. See Grimstad v. Knudsen, 283 Or App 28 (December 21, 2016). At the end of its opinion, the Court of Appeals favorably concluded as follows:

“In sum, we conclude that the trial court erred in concluding that the [Grimstads] proved a claim for unjust enrichment, because [the Grimstads] failed to show that they had any legal or equitable interest in the proceeds of the sale of the [real estate]. For that same reason, the trial court erred in concluding that [the Grimstads] proved their claim of money had and received. The trial court therefore erred in granting plaintiffs relief on those claims. On cross-appeal, [the Grimstads] failed to put forward evidence to create any genuine issue of material fact with respect to the improper means or purpose element of their intentional interference with prospective economic advantage claim. The trial court therefore did not err in granting [the Knudsens’] motion for summary judgment [on that claim].”

See Grimstad v. Knudsen, 283 Or App 28, 58 (December 21, 2016) (reversing and remanding on appeal; affirming on cross-appeal).

Remand to the Washington County Circuit Court

This appeal and cross-appeal will now be remanded (returned) to the trial court for entry of a new judgment fully in my clients’ favor. As an aside, I predict this case and its opinion will become the new “name case” or “lead opinion” for claims of intentional interference with prospective economic advantage. Time will tell.

 

Physician sentenced to a year and a day for seven drug felonies!

Is there a new leniency in federal sentencing for prescription drug crimes?

In an effort to follow Drug Enforcement Administration (DEA) prosecutions, convictions, and sentencings around the country, I read Google alerts weekly, sometimes daily. In recent months, I have been struck by relatively lenient sentences handed down by several different District Courts when sentencing physicians pleading to multiple counts of drug diversion (i.e., prescription drug crimes). I have defended physicians and pharmacists facing prescription drug charges long enough to recognize trends. Thus far, I haven’t commented, but today I am prompted to do so because I sense there may be a new trend, or new opportunities, for those that are paying attention. Here is one recent example:

On August 9, 2016, it was reported that a West Virginia physician was sentenced in federal District Court to a year and a day in jail after pleading guilty to seven felonies for illegal distribution of oxycodone. The sentence included an $18,200 penalty, and required the physician surrender her medical license, but for those who are unaware of typical sentences for federal drug charges, this sentence is lenient! According to news reports, this physician had both prior legal and disciplinary history, was charged with a 100-count indictment alleging that she and two coworkers wrote 157 illegal prescriptions for oxycodone, oxymorphone, methadone, and methylphenidate, and the physician authorized pre-signed, blank prescription forms, for use by her staff. I am aware of much harsher sentences on what would appear to be much “cleaner” records.

A new trend or opportunity?

I haven’t done the research, and do not presently have the case to justify the time and expense, but for those physicians (and their lawyers) currently preparing to plead and be sentenced,a six-month review of recent federal District Court sentences involving drug diversion pleas around the country may be a worthy endeavor. A little research will turn up other similar news reports of relatively lenient sentences, suggesting better results for physicians sentenced for prescription drug crimes than I have seen for a while. There is perhaps something to be learned.

Pharmacists, physicians and nurses: Is your state licensing Board friend or foe?

To report or not report: Discipline versus a Letter of Appreciation

Reporting troubling information to your licensing Board and navigating the subsequent investigation is seldom one’s first choice, but it can be done well, and it may spare you from discipline later. You might even discover that your licensing Board is your friend and ally. To illustrate this discussion, I am using two cases involving pharmacists and the Oregon Board of Pharmacy, but the same principle can apply to nurses before the Oregon State Board of Nursing and physicians before the Oregon Medical Board.

Two pharmacy cases that make the point

In one case, the pharmacist in charge (PIC) was managing a pharmacy technician whose qualifications to hold her technician’s license were suspect. The PIC did not report the technician, believing the Board of Pharmacy “would not have done anything” to help, since the Board licensed her in the first place. As he would later learn, however, had he made an appropriate report to the Board, he would have satisfied his professional obligation to report, while simultaneously gaining the Board’s participation in the problem, relieving him of much responsibility. A simple report to the Board would have spared him the grief that followed as he sought to manage a problem he could not manage, and should have instead reported. In the end, his failure to report the technician, and to work collaboratively with his licensing Board, proved a costly lesson: discipline.

By way of comparison, in an another case, the PIC discovered an ongoing drug theft that occurred on his watch, a drug theft that perhaps should have been discovered sooner. Nonetheless, his drug inventory reconciliations uncovered the drug loss and, through his extraordinary efforts, he identified the technician responsible for the drug theft. His reports to the Oregon Board of Pharmacy and the Drug Enforcement Administration (DEA) were timely, and his participation with the Board during the investigation was exemplary. In the end, he was not disciplined, but instead received a letter of appreciation from the Oregon Board of Pharmacy.

The moral of the story

The crucial point not to be missed is that these two pharmacists could have reversed their fortunes (good or bad) by simply reversing their decisions to report to the Board (or not to report). I can assure you that the pharmacist that reported to the Board in the second example above (involving the drug theft), and then experienced the benefit of reporting, will do so again, should the need arise. As for the other pharmacist, the one that chose not to report his technician’s lack of qualifications, and faced the consequences, next time, he too will report to the Board.

Physician wins! Oregon Court of Appeals reverses Medical Board

This is a case I took up on appeal for another lawyer, and won. In this case, the Oregon Medical Board revoked a physician’s medical license by missapplication of complex procedural rules. In a unanimous decision, however, the Oregon Court of Appeals reversed the Oregon Medical Board in my client’s favor. See Yankee v. Oregon Medical Board, 280 Or App 1 (August 3, 2016) (remanding for further proceedings).

Appeals against the Oregon Medical Board are difficult to win

On appeal to the Oregon Court of Appeals, I argued that the Oregon Medical Board erred when it denied my client’s motion to reschedule his hearing, and revoked his medical license, without first holding a hearing on his motion before an Administrative Law Judge (ALJ), as required by administrative rule. The Oregon Court of Appeals agreed, and reversed the Oregon Medical Board, remanding the case for further proceedings.

This appeal was won on procedural grounds and, as experienced appellate lawyers know, this type of appeal can be difficult to win. I argued this case to the Oregon Court of Appeals in February of 2015, but the court did not decide the case until August of 2016, 18 months later, suggesting that the Court of Appeals needed significant time to decide this troubling case.

The Court of Appeals’ ruling: The Oregon Medical Board must follow prescribed procedure

The holding in this case is simple: The Oregon Medical Board must follow “prescribed procedure” when seeking to revoke a physician’s license:

“Having concluded that the [Oregon Medical] board procedurally erred when it did not provide [Dr. Yankee] with a hearing before the ALJ, we must remand this matter for further proceedings if “the fairness of the proceedings or the correctness of the action may have been impaired” by that “failure to follow prescribed procedure.” ORS 183.482(7). Here, the fairness of the proceedings may have been impaired. [Dr. Yankee] was entitled to have a hearing before a neutral ALJ [Administrative Law Judge] on the reasons for his not appearing once the [Oregon Medical] board disputed the facts articulated by [Dr. Yankee]. Instead, the [Oregon Medical] board resolved those disputed factual issues in its own favor. Accordingly, we reverse and remand for further proceedings.”

See Yankee v. Oregon Medical Board, 280 Or App 1, 6 (August 3, 2016) (underscore added).

Marijuana, the practice of medicine, and the Oregon Medical Board

Under federal law, marijuana is a Schedule I banned substance, meaning that without a research permit or exception, it cannot be used or prescribed for any purpose. In recent years, however, a number of states, including Oregon, have “legalized” marijuana for medical purposes (and in fewer states, for recreational use). For a number of reasons, the Drug Enforcement Administration (DEA) has abandoned the enforcement of the federal drug laws as they pertain to the medical and recreational use of marijuana in those states that have declared it legal. Based upon my experience, however, I urge you not to become complacent when recommending or approving marijuana for medical use. Here’s why.

The Oregon Health Authority versus the Oregon Medical Board or: “it’s still the practice of medicine, dude.”

The Oregon Health Authority (OHA) sets out the statutes and rules applicable to the Oregon Medical Marijuana Program (OMMP) and further offers a wealth of relevant information and advice. See, e.g., http://public.health.oregon.gov/DiseasesConditions/ChronicDisease/MedicalMarijuanaProgram/Pages/legal.aspx. Be forewarned, however, that compliance with the OMMP will not necessarily satisfy the Oregon Medical Board when there is a complaint or discrepancy involving professional protocols or the standard of care. As one investigator recently put it, “it’s still the practice of medicine, dude.” In other words, it may be legal, but more may be required of you.

Do not confuse “legality” with the standard of care

The State of Oregon may have legalized marijuana, but the Oregon Medical Board regulates the practice of medicine and is particularly concerned with how you meet the applicable standard of care and/or other professional protocols or commitments that may apply in any given situation. Stated differently, in Oregon, the OMMP establishes the circumstances under which medical marijuana is legal, but the medical profession adds another layer – the standard of care – and it is the Oregon Medical Board that will ensure that the standard of care is met. The fact that you may be recommending medical marijuana consistent with the OMMP will not much satisfy the Oregon Medical Board if the standard of care requires more.

Licensure applications and the dreaded “yes questions”

I recently discussed a few of the many mandatory reporting obligations imposed on physicians and nurses. Today I want to discuss the “dreaded yes questions.”

A dreaded yes question is a question you want to answer “no,” but truthfulness requires that you answer “yes,” hence the question is dreaded.

For example, last week, a physician asked me how to answer a boilerplate question found on many residency applications, and a nurse asked me to help her report a drug and alcohol-related arrest on her renewal application. The question on the residency application asks, “Is there anything in your past history that would limit your ability to be licensed or would limit your ability to receive hospital privileges?” To answer this question, one would need to know what kind of things limit the ability to be licensed, or to gain hospital privileges. Without relevant experience, this question will be difficult to answer. The renewal question for the nurse, involving drug and alcohol-related arrest and her renewal application, was much more straight forward.

License renewal applications and DUII arrests and convictions

I am often asked about the need to report driving under the influence of intoxicants (drunk driving or DUII) arrests and convictions, and less often about the need to report a drunk driving arrest that did not result in a conviction. One recent case illustrates the complexity of the various mandatory reporting requirements. I represented a physician who had been arrested, but was not convicted, for driving under the influence of intoxicants. The physician was licensed in three states. The phrasing of the question on the renewal applications was all important, and it differed state-by-state. One state required a conviction to be reported, but not a mere arrest. Another state required that the arrest be reported, regardless of whether there had been a conviction. The third state was a close-call case.

What to do with close-call questions on license renewal applications

Occasionally, the facts and circumstances, combined with the phrasing of the question on the renewal application, will make the answer too close to call with desired certainty. Is these cases, an experienced healthcare defense attorney can advise you on the risks of not reporting, versus the benefits of reporting to ensure compliance with your mandatory reporting requirements. An experienced healthcare defense attorney can also do something you should not, and that is to make a call to the right person at your licensing Board, in an effort to learn more, but without disclosing your name.

One final caveat about the failure to report

In my experience, those choosing not to report a reportable incident deeply regret that decision once the incident comes to the attention of their licensing Board. The failure to report simply adds another layer to the investigation and exposes you to additional scrutiny because your veracity is now in question.

 

Licensure and mandatory reporting requirements

As a licensed healthcare provider, you have mandatory reporting requirements

Upon your initial application for licensure, you will be required to answer a series of questions designed to disclose past conduct that may have an adverse impact on your ability to practice your profession. Thereafter, you have a continuing obligation to report specified incidents to your licensing Board, often within 10 days of the occurrence of the incident, or at the time of your license renewal.

The reporting laws are complex and nuanced. Although it is tempting to rationalize why the incident in question need not be reported, this is often a mistake, because the failure to report a reportable incident is itself a violation. Before you report, or decide not to report, you are encouraged to seek experienced legal counsel, to determine first if a report is in fact and law required to be made, and second, how best to make the report to minimize any adverse impact on you or your license.

For physicians, incidents subject to mandatory reporting include, but are not limited to, the following:

  • Criminal convictions or felony arrests;
  • Discipline by other state licensing boards;
  • Loss of privileges, withdrawal, resignation, or limitation of practice; and
  • Medical incompetence, unprofessional or dishonorable conduct, or physical incapacity

To get started, physicians should consult the following reporting statutes and agency rule:

For nurses, incidents subject to mandatory reporting include, but are not limited to, the following:

  • A nurse imposter;
  • Practicing nursing without a license;
  • Arrest or conviction of a crime which relates adversely to the practice of nursing or the ability to safely practice nursing;
  • Dismissal from employment due to unsafe practice or conduct derogatory to the standards of nursing;
  • Client abuse;
  • Conduct derogatory to the standards of nursing as defined;
  • Any violation of a disciplinary sanction imposed on the licensee by the Board of Nursing;
  • Failure of a nurse not licensed in Oregon and hired to meet a temporary staffing shortage to apply for Oregon licensure by the day the nurse is placed on staff;
  • Substance abuse as defined in ORS 678.111(e); and
  • Any other cause for discipline as defined in ORS 678.111.

To get stated, RNs and LPNs should consult the following chapter:

Mandatory reporting can be assisted by a healthcare defense attorney

As you can see, mandatory reporting can present complicated questions. I am frequently asked, “do I have the report this, and if so, how soon?” My initial reaction is usually accurate, but in almost all cases, I will look it up myself. The reason I look it up is that as a healthcare defense attorney, I represent too many professions (physicians, pharmacists, nurses, acupuncturists, etc.), and there are too many reporting requirements to commit it all to memory. Also, in close-call cases, accurate reporting requires some analysis, or you risk under-reporting or over-reporting. Under reporting (i.e., failing to report) exposes you to discipline and other problems with your licensing Board or other important institutions, while over-reporting (i.e., unnecessary reporting) exposes you to a process most licensed professionals prefer to avoid. So again, before you report (or decide not to), you are encouraged to seek competent legal counsel, to determine first if a report is in fact and law required to be made, and second, how best to make the report to minimize any adverse impact on you or your license.