Healthcare Providers Risk Suspension for Overprescribing Opiates in Kansas

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Healthcare providers who have prescription writing privileges may suffer discipline for overprescribing narcotics in Kansas. Physicians and other healthcare providers must be vigilant against prescribing narcotics to patients exhibiting drug-seeking behavior.  Given the opiate epidemic currently plaguing the United States, physicians’ drug-prescribing tendencies may be scrutinized.  Any irregularities may subject the physician to discipline, including suspension from practice and substantial monetary fines. Healthcare providers must carefully notate the patient record and medically justify dispensing narcotics. Professional licensing attorney Danielle Sanger tenaciously defends physicians, osteopathic doctors, and other healthcare professionals who are facing disciplinary proceedings resulting from alleged malpractice or unethical practices.

The Kansas Board of Healing Arts (“the Board”) is the administrative agency responsible for ensuring Kansas physicians and other healthcare providers comply with ethical, educational, and licensing standards. Physicians’ ethical standards are delineated by statute. A violation of the law may result in revocation, suspension, or limitation in practice, censure, or denial of renewal of license. The law defines specific ethical violations, including those related to dispensing medication. Under the law, a physician has violated the ethical standards of Kansas physicians if a doctor prescribes, sells, or otherwise dispenses a controlled substance that is not medically required.  In addition, a physician commits an ethical violation if the physician violates a federal law relating to controlled substances.

The Board has found that overprescribing of opiates is grounds for suspension. In 2014, the Board investigated a doctor of osteopathy for overprescribing Oxycontin. The Board found that the doctor overprescribed Oxycontin to 14 patients. Specifically, the investigation conducted by the Board revealed that the doctor saw many patients who complained of pain in different parts of the body. In most cases, the doctor failed to timely order further diagnostic testing to determine the cause of the pain. Instead of ordering appropriate testing, the doctor would prescribe Oxycontin for the pain. The Board’s investigation revealed that many patients returned to the doctor to renew prescriptions before the prescription, if taken according to the doctor’s orders, should have been renewed.  Although the doctor noted the patient returned early and asked his patients for explanations, the doctor failed to investigate the explanations. The Board concluded that the doctor should have investigated the excuses proffered by the patients. Furthermore, the Board concluded that the doctor should have requested his new patients’ medical records from previous healthcare providers who fired the patient for drug-seeking behavior.

The Board reached the conclusion that the doctor violated Kansas’s ethical standards. The Board ruled that the doctor violated Kansas Statute 65-2836(b) by dispensing or prescribing a controlled substance in an improper or inappropriate manner. The Board also ruled that prescribing medication in this manner is also “unprofessional conduct” according to Kansas Statute 65-2837(b)(23).

The Board and the doctor entered into a consent order as to the nature of the discipline. The Board ordered that the doctor should be suspended from practice for a period of 6 months and pay a $5000 fine. Additionally, the doctor was prohibited from prescribing controlled substances for 3 years. The Board obligated the doctor to prove by “clear and convincing evidence” that the doctor was rehabilitated prior to the expiration of the 3-year ban to reinstate prescription privileges.  Lastly, the Board banned the doctor from supervising other practitioners for 3 years.

Contact an Experienced Professional Licensing Attorney for Consultation

If you are a healthcare professional who is being investigated for overprescribing narcotics, immediately contact Kansas Professional Licensing Attorney Danielle Sanger.  As a former assistant attorney general, Attorney Sanger has the experience to defend your professional license against allegations of overprescribing medication. Attorney Sanger will vigorously and zealously fight to defend against these allegations and protect your professional license. Call Attorney Sanger today at 785-979-4353 to schedule your free consultation.

Pleading the “Fifth” in Missouri May Not Protect You from an Adverse Decision by the Administrative Hearing Commission

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Invoking one’s right to not to self-incriminate is colloquially known as “pleading the Fifth.”  The colloquialism refers to the Fifth Amendment to the United States Constitution, which preserves one’s right to be free from government compulsion to give evidence against oneself. Although the Fifth Amendment is most closely associated with criminal matters, it has frequent application in other contexts.  In Missouri, appearing before the Administrative Hearing Commission (AHC) may require the litigant to invoke the privilege against self-incrimination during questioning, depending upon the allegations. Although such an invocation cannot be held against you in criminal court, a different result may be reached outside of criminal court. If you find yourself in this position, Attorney Danielle Sanger, a professional licensing attorney in Missouri and Kansas, has the knowledge and experience to defend you in hearings before the AHC in Missouri and will advise you on the implications of invoking your right to remain silent.

In Missouri, the AHC is the administrative hearings body that adjudicates disputes between licensee and licensing boards. This administrative remedy must be exhausted prior to litigating the case in court. Frequently, licensees find themselves in a position where criminal liability may attach–even if only a remote possibility–in addition to the adverse licensing action.  Accordingly, Missouri law affords the licensee the right to refuse to answer questions because the answer may be incriminating. Permitting an invocation prevents collateral use of a party’s statements in a disciplinary action relating to a professional license in criminal court.

The Missouri courts have stated that the decision to invoke the privilege against self-incrimination is a personal choice. The choice to be made depends on the facts of the case.[1] At a hearing, the litigant must weigh the right to remain silent against the right to tell one’s side of the story.  Either decision has potential adverse consequences.

In Missouri, “pleading the Fifth” does not insulate a party in civil litigation. In civil litigation, the finder of fact is permitted, in many occasions, to make an adverse inference against the person invoking their right to remain silent if the question is relevant to the litigation.  Allowing the fact-finder to draw the inference against the party invoking their privilege promotes fundamental fairness in civil litigation. Otherwise, a party could hide behind the privilege without any recourse to the opposition.

Missouri law places limitations on the adverse inference a fact-finder may make against a party invoking their right to remain silent.  The fact-finder is permitted to make the inference: it is not mandatory. In the context of a particular case, the fact-finder can disregard the inference. A party invoking the privilege is not prevented from offering evidence.  The invoking party can still offer evidence in support of their position even if they refuse to testify. Furthermore, claiming the privilege is not to be taken by the fact-finder as an admission of guilt. The opposition is not relieved of its burden to produce affirmative evidence at the hearing if a party invokes the privilege.  If the opposition offers enough evidence to prove its case at the hearing, then the inference “shifts the burden” to the party invoking the privilege to rebut the evidence.

Missouri Licensing Defense Lawyer Danielle Sanger recognizes the difficult choices a professional licensee must make when facing a complaint. If you are facing that situation in Missouri or Kansas, you need an attorney who will stand by you and guide you to make the best decisions for you personally and professionally. Call professional licensing attorney Danielle Sanger today at 785-979-4353 to schedule your free consultation. Attorney Sanger will fight to protect you.