New Nebraska Law Creates Mandatory Reporting of Controlled Substance Prescriptions for 2017

The over-prescribing of an opioid drug can create significant criminal and civil liability for a prescriber, as illustrated in the recent People v. Tseng decision and the proposed $1.1 billion White House initiative to combat prescription opioid and heroin abuse. To aid physicians and prescribers in controlling prescription opioids, every state, with the exception of Missouri, authorized a prescription drug monitoring program (PDMP).

The PDMP collects information on the prescription of controlled substances, but the specific substances monitored will vary state by state. Usually, however, it will be a mix of drugs considered controlled substances under state and federal law. The information stored in the database is accessible only by certain individuals, such as pharmacists, physicians, and other prescribers. The goal is to provide information about patient prescriptions to those with prescribing power, to ensure that over-prescribing of drugs, such as opioid drugs, does not occur.

In Nebraska, the PDMP was established by law in 2011, but the system was not truly implemented at that time. Until a February 2016 law, prescriber participation was not required and, regardless, the system was not truly operational. Moreover, until the 2016 law, patients that paid via Medicare or cash could opt-out of participation, removing a significant population of patients. However, the new law requires that all prescriptions of controlled substances be reported by the prescriber, starting January 1, 2017. Similarly, all prescription information, including patient information, must be reported to the PDMP starting January 1, 2018. The new law also eliminates the previous loopholes for patients to opt-out of the reporting requirements. Notably, however, the prescriber does not have an obligation to check the system prior to prescribing a controlled substance, such as an opioid drug, but they will have free access to check the PDMP. Of course, the Dr. Tseng decision highlights the potential for either criminal or civil liability for over-prescribing.

To see further information on the Dr. Tseng decision, please visit: https://vwhealthlaw.wordpress.com/2016/02/19/new-criminal-precedent-for-physicians-over-prescribing-opioid-drugs/

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New Criminal Precedent for Physicians Over-Prescribing Opioid Drugs

In October of 2015, a jury convicted a physician of second degree murder for over-prescribing a drug that resulted in a fatal overdose for three patients. People v. Tseng is the first conviction of a physician for murder due to over-prescribing, but the Centers for Disease Control and Prevention note that physicians are a significant contributor to the 17,000 plus opioid overdose deaths a year.

After the conviction, in February of 2016, Dr. Tseng was sentenced to 30 years to life in prison for the fatalities due to over-prescription. Although this was the first conviction of its kind, the prosecution of physicians for reckless or intentional over-prescription of certain types of drugs is significantly increasing. An example of the new focus, early in 2016, the White House proposed a $1.1 billion initiative to combat the prescription opioid and heroin use problem.

In the Tseng conviction, the physician had prior incidents of over-prescribing and all three individuals purposefully sought her out for the prescriptions. While she maintains that she was relatively untrained in opioid based prescriptions, thus leading to the over-prescribing, she is not eligible for parole for 30 years.

© 2015 Vandenack Williams LLC
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