[NP-Clinical] Police Response - Narcotics, HIPPA and the Law

Tue Aug 7 20:06:11 PDT 2007

I probably wasn't but if you remember the line of cases, I think they started in the '70's.  There was a case in SC where the state involuntarily sterized women on welfare if they had more than two children.  Then there was another case where the state would involuntarily drug test pregnant mothers if they were on welfare (was not a SC case) and then there was the SC case.  These cases focused on women's right to control their bodies.

Winifred Carson-Smith, Esq.
nursinglaw at aol.com
202/232-5193
202/232-5194 (fax)

-----Original Message-----
From: Dena <galdena at sbcglobal.net>
To: 'NP Clinical' <np-clinical at nurse.net>
Sent: Tue, 7 Aug 2007 9:27 am
Subject: RE: [NP-Clinical] Police Response - Narcotics, HIPPA and the Law

Good grief—I wrote a paper for class that included this exact same scenario (government intervention vs right to privacy and personal freedom of choice, etc) back in 1994!! Wonder if it’s the same case after all these years??

Dena Galler

From: np-clinical-bounces at nurse.net [mailto:np-clinical-bounces at nurse.net] On Behalf Of nursinglaw at aol.com
Sent: Monday, August 06, 2007 9:20 PM
To: np-clinical at nurse.net
Subject: Re: [NP-Clinical] Police Response - Narcotics, HIPPA and the Law

I believe that we really need to review the law on this issue; and unfortunately, the preceding email does not do so.  I write this solely because I have concerns when we cover a portion of the case law and we are not comprehensive.  I hope and trust that you read this email -- it is long -- to better understand the concerns surrounding this issue; and to better assist you in reviewing the HIPAA regs on this topic.

The preceding author cites some old and some new sources related to pain management, however, we must put all in context.  First, writer believes that a "hands off approach" is necessary because of the Ferguson case and other articles she has read about targeting specific individuals. 

In Ferguson v. City of Charleston (South Carolina), a "Search and Arrest" policy was initiated at the Medical University of South Carolina (MUSC) as a joint effort between the hospital and local law enforcement officials. Under the policy, MUSC medical personnel secretly searched a targeted group of pregnant women for evidence of cocaine use without a warrant or their consent to the search. Results were reported to police who arrested 30 women over a five-year period. Some of the women were handcuffed and arrested from their hospital beds immediately after giving birth; others were arrested and jailed while still pregnant. After a lengthy legal battle, the Supreme Court in 2001 determined that the searches, which were conducted without warrants or probable cause, violated the Fourth Amendment in the absence of consent. This decision maintains the Court’s steady determination that the "special needs" balancing test should not be applied to law enforcement searches of citizens, who have a reasonable expectation of privacy in medical and other personal matters.   To read the Ferguson decision, go to http://www.reproductiverights.org/pdf/fergusondecision.pdf.

First, Ferguson is an old case (2001), in which the decision was not premised solely on the inappropriate  pain testing, but instead on the violation of reproductive rights.  In this case, the hospital targeted certain women, who they thought would be drug users and tried to use the drug test to force them into drug treatment programs.  If the women did not go into the program and had positive tests, those tests were reported to state law enforcement agencies; and their children were removed and placed into foster care.  The Supreme Court's ruling specifically conditions its decision on the limitations imposed on government actors, i.e. state hospitals; and notes that "a state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement pruposes is an unreasonable search and seizure IF THE PATIENT HAS NOT CONSENTED TO THE PROCEDURE.

Please note that the case does not:
--limit a health professional's ability to ask questions about drug use and to know physicial signs and symptoms of drug addiction and diversion;
-- if the test is done within the context of providing care, as opposed to solely for law enfocement purposes, tests may be done;
--allows hospitals  to question all who request pain medications as long as the process is not designed or targeted at some on a preconceived notion, premise, biase of because they belong to a specific racial or cultural class; and
--individual providers as well as private hospitals can develop a process to protect themselves from litigation, as long as they are not premising their conduct upon acting on behalf of the government.

Juxtapose Ferguson with the William Hurwitz case.  In 2004, Dr. Hurwitz was charged with drug trafficing in 39 states and was sentenced to 25 years in prison because he provided pain medications for patients.  In the case Hurwitz, who ran a pain clinic, was not charged with being an active participant in drug diversion, but the federal prosecutors contended that he turned his back and ignored diversion problems.  Those called to testify against him were his patients who were convicted of drug dealing, and all contended that Hurwitz was tricked by them and that he gained their trust.  They testified that they knew the right things to say, and that they deliberately concealed their drug use.  In 2007, the case was retried, after the federal appeals court overturned the conviction in August 2006.  The conviction was overturned because jurors wre not allowed to consider whether Dr. Hurwitz prescribed the drugs in good faith.  However, at retrial, he was sentenced to 5 years in July of this year.  To review articles written on the case, and the appeals court decision, go to http://www.mapinc.org/motd.htm .

This case, to me, is telling as the courts have not been able to discern how to properly apportion responsibility to the health care provider who does pain management.  Thus, it is hard to determine how much responsibility a health care provider has to determine whether an individual really needs a drug or is addicted.

Immediately prior to the Hurwitz case, the policy section of the DEA tried to do just that.  They developed interim regulations using nurses and docs which provided clear guidance; and used some of the better scholarly treatises to actually provide some flexibility for properly treating pain.  The Policy Section of the DEA and the Enforcement Section of the DEA, disputed whether these regs could provide adequate guidelines to allow for enforcement; and given the President's hard line on drug enforcement, the regulations were pulled back.

Professional staff within the Policy Office at the DEA went to bat for reinstating the regulations and using the best science, so much so, that I believe, some of those professionals were forced out by this administration.  The AMA has tried to address this matter, and I believe that the JCAHO regulations mandating pain management and treatment were developed in response to this government schism.  Likewise, I do believe that those writing the CMS HIPAA regulations wanted to provide some flexibility for professional nursing and medical judgement; and ethical options for reporting this and other matters that might fall into the "grey" area of law, where specific mandates have not been enacted.

To this end, I make the following recommendations to health care professionals who are responsible for pain management, to protect themselves:

1.  If you are in a pain clinic, develop a clear protocol, that is used with all patients to discern whether the patients truly need the drugs or if they are addicted.  If a patient is questionable but you cannot verify addiction, you can make a notation in the record, but know that the patient has the right to obtain the record.  Alternatively, you can have a separate record, rounds or meetings weekly to discuss patients who are questionable; and to get other staff members opinions on how to address the potential of addiction.

2.  Prior to HIPAA, some emergency rooms and/or hospitals would red sticker addicts health records or alternatively, have a list of those who are addicted that was available or posted for health professional review.  As mentioned in the preceding recommendation, know that the patient can request their record, and if you have info in the record, make sure it is based on the most recent visit of that patient.  If it is a list, again, make sure that those on the list make the list because they have been evaluated by objective criteria, at their last patient visit, to determine whether they are addicted.  I might even go so far as to have the state health commission review your criteria to ensure objectivity.

3.  Include a consent provision in the general admission consents form, to give you the option of not providing meds or testing prior to providing meds for emergency room pain management patients.

4.  Ask the hospital to come up with its policy on pain management reporting.  If you own or run a clinic, you come up with a pre-existing policy, discuss that policy with your patients before they become your patients, and incorporate that policy into the pain contract.  If any patient violates the policy, you have to report any and all who violate the policy.  However, unless your state has a mandate, you don't have to give your record when reporting, law enforcement can subpoena the record for enforcement purposes.

5.  The EMTALA article does have some good information about being nonconfrontational and about treating the patient with respect.  I would ask one to act cautiously about giving out minimum amounts of controlled substances, if you suspect one is addicted.  We know that some individuals will go to numerous hospitals to get enough quantities of pain medications for sale or inappropriate use.  In the past hospitals communicated with each other about suspected addicts, now there are concerns about targeting individuals by communicating with other hospitals.  Since most patients have some insurance (public or private), keep in mind that the electronic records will start catching some of these parties because of payment for care, so we need to work to ensure that EMR systems properly talk to and respond to this type of information.

6.  And, the articles are correct about challenges to hospitals or health care systems for not providing adequate pain medications and attempting to force individuals to go "kick" their habits.  As the preceding writer indicated, addiction and dependence for quality care and life are two different matters; and there was a NC case where a nursing home was sued and the plaintiffs won because the nursing home withheld pain medications from a patient with chronic pain.

Thus, it is a balancing act -- using your skills and expertise to discern whether one has legitimate pain issues or is attempting to divert drugs.  All the more reasons to work with your hospital to establish a pain evaluation protocol for emergency rooms and clinics.  And, one should be mindful of some of the inappropriate prejudices and preconceived notions related to pain management.   We really need good pain management, and we need to insulate ourselves to prove that we have conducted due diligence so we are not charged for drug trafficking solely because we are treating our patients.

Winifred Carson-Smith, Esq.
nursinglaw at aol.com
202/232-5193
202/232-5194 (fax)

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