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Telehealth Prescribing

ND Fails to Consider Patient's Location

Bob Smith, a 60-year-old construction worker, presented to Stacia Waters, ND, with a variety of ailments, including a 20-year history of back pain. Dr. Waters thought Smith was also treating with a primary care physician, and she was only providing supportive consultation.

After Smith tried multiple alternative treatments, including anti-spasmodic herbs, homeopathic ointments and strain-counterstrain therapy, Dr. Waters agreed to prescribe Norco 10/325. Dr. Waters encouraged other care, such as Rolfing and homeopathic treatment, but Smith’s limited financial resources, lack of access to transportation, and stress and psychological issues were obstacles.

Concerned about the patient’s chronic pain and not wanting to abandon him, Dr. Waters treated Smith for 10 years. Over time, she increased the patient’s Norco prescription to the equivalent of 120 MED, which was supported by the patient’s objective findings. However, Dr. Waters’ efforts to refer Smith to other providers and follow up with his PCP and other specialists were largely unsuccessful. Smith also had intermittent issues with anxiety and sleep, to which Dr. Waters tried different prescriptions.

During the course of treatment, Smith moved to a nearby licensed state in which Dr. Waters was licensed but had a different scope of practice. Namely, her prescription authority did not include many controlled substances. Increasingly, Dr. Waters’ patient encounters with Smith were by phone and prescriptions were routinely refilled following telehealth appointments.

At one point, Smith attempted to fill one of Dr. Waters’ prescriptions at a pharmacy in the other state. Shortly thereafter, Dr. Waters received a letter from the Department of Health (DOH) advising her that a complaint had been opened about her patient care. This letter did not include details about the complaint or the name of the patient but explained another letter with more information would be forthcoming.

The DOH letter also provided the investigator’s name and contact information, as well as the “opportunity” for Dr. Waters’ to submit a statement. Dr. Waters decided to call the investigator to ask about the complaint. During the call, she suggested several possible patient names, trying to guess the nature of the complaint. Dr. Waters also suggested different scenarios, enabling her to deduce that Smith was the complaint’s subject.

She then prepared a lengthy and detailed letter to the investigator about Smith’s care over the past 10 years. After submitting her letter, Dr. Waters received the letter detailing the allegations and requesting specific information and documents on Smith. The complaint included allegations of unprofessional conduct and patient harm.

At this point, Dr. Waters learned the primary complaint related to the prescriptions. However, after receiving Dr. Waters’ call and letter, the investigator requested more information. Dr. Waters decided it was time to contact her malpractice insurance company.

Repercussions

A review of Dr. Waters’ records revealed that Smith had not been physically examined in a long time, either by Dr. Waters or any other doctor. Further, although there was reference to an opioid contract, it was never enforced. Smith had not had any recent labs, pill counts or PDMP reviews. Further, during conversations with Dr. Waters, Smith had reported several potential violations of the pain contract. For example, Smith reported using alcohol to augment his prescriptions and at least one instance of “losing” his prescription medications.

Because of their long-term relationship, Dr. Waters had difficulty reviewing Smith’s care objectively. He convinced Dr. Waters that his medications were his only option—even threatening he could not survive without them. Smith further stated he did not have the financial resources to start over with another provider or have expensive imaging tests conducted — it would just be “more debt collectors calling.”

Dr. Waters took on an unexpected counseling role, further blurring the professional patient boundaries. Review of chart notes during this time revealed primarily “subjective” reporting by the patient. Further, Dr. Waters’ records did not include copies of any her referrals to other providers (some of which were verbal or simply sent to the patient for action). She had no documentation to prove her efforts. Additionally, except for a couple of studies, Dr. Waters’ records did not include records from Smith’s other providers.

Through the course of the investigation, it became clear that Smith had only sought care from Dr. Waters for several years. He ceased going to other specialists, including his former PCP who refused to prescribe opioids. From Smith’s perspective, Dr. Waters was his PCP.

Dr. Waters realized she was in the difficult position of trying to taper her patient and terminate care while simultaneously defending a board complaint. The patient wasn’t interested in changing his care routine and might even self-medicate (self-harm) if left unattended.

Although Dr. Waters already submitted a response to the board, counsel helped her prepare another response to address the investigator’s pending questions. Counsel also helped Dr. Waters see why her care and documentation were a concern to the board. Consequently, Dr. Waters revisited her practice rules and guidelines and implemented an action plan to eventually terminate her patient’s care. She voluntarily took continuing education course to demonstrate she was taking the issue seriously.

As noted, Dr. Waters held a license in her home state. Naturopathic doctors in that state have a duty to self-report under several circumstances. Two of these are:

  1. Any action brought against them by a health regulatory agency
  2. Any action brought against them by a patient, former patient, or health care facility, based on allegations of medical incompetence, malpractice, unprofessional conduct or licensee impairment  

After receiving Dr. Waters’ report of a pending DOH investigation, her state board of naturopathy also opened an investigation against her, seeking the patient file and a written response. This time, Dr. Waters had counsel help her prepare her response, but her prior submissions were also discovered.

Ultimately, Dr. Waters was disciplined by both the Department of Health in the patient’s state of residence and her home board of naturopathy. In the non-resident state, she was found to be practicing outside her prescription authority and negligent in her treatment of Smith. Even though she was prescribing within her home state’s scope of practice, her patient was located in a different, more restrictive state. Out-of-scope prescriptions included Norco, Xanax and Ambien.

Dr. Waters stipulated to an informal disposition of her case. Discipline included:

  1. Restriction from Schedules III-V prescriptions for six months
  2. A fine of $1,000
  3. Practice audits twice in the next year
  4. Continuing education. Upon successful completion of these terms, Dr. Waters could apply for termination of the stipulations. In her home state, Dr. Waters was found to be noncompliant with adopted prescribing guidelines. Further, the board determined her prescriptions exceeded the daily morphine equivalent maximum and were combined with benzodiazepines

Dr. Waters’ chart notes were found to be incomplete, with lack of objective findings being notable. Almost all information was subjectively provided by the patient, and care appeared to be patient driven. The board proposed a large fine, two years of probation and regular file pulls.

Additionally, Dr. Waters was credentialed by several insurance companies, each of which had a different contract with specific reporting requirements. Many contracts required her to immediately report to the insurance company if a board complaint was filed against her or at the time she was disciplined. For the others, Dr. Waters was required to report the board complaints when completing updated attestation forms (either quarterly or annually).

Finally, upon renewal application for her DEA license, Dr. Waters disclosed the two disciplines and was investigated and interviewed again. With counsel’s assistance, she was able to demonstrate improvements in her practice and compliance with regulation and was allowed to keep her DEA license.

What Can We Learn?

  • Telehealth can make the determination of “where” you are practicing complicated. When a patient presents in your clinic, the location of the care and your scope of practice are clear. When you are delivering services remotely, “where” the services are being delivered is more complex. The common understanding is that you are providing the care to the patient where the patient is.

    Telehealth is a delivery method only. Whether you deliver services via telehealth or in your clinic, the standard of care is the same, scope of practice and documentation rules apply. In some instances, you have to consider whether the services can be delivered via telehealth. Depending on the patient’s conditions, complaints and treatment plan, telehealth by itself may not be a sufficient form of health care delivery. In this case study, telehealth services were by phone, not video, and the provider was further limited by what she could not visually observe. For more information, see “Questions to Ask With Telehealth.
     
  • Don’t wait! Notify your insurance company and request counsel at the first notice of a complaint. Many of our clients believe they can talk to the board or “explain” what happened. Very rarely is that effective. Boards are consumer protection agencies. They are not created to help or defend licensees; they are created to protect the public from dangerous doctors. See “What to Consider with Board Responses.
     
  • Self-Reporting is inevitable at some juncture. You may have a duty to self-report your board complaint to: other states where you are licensed; professional societies where you hold a membership; insurance companies you are credentialed with; professional certification programs; etc. It is critical that you examine your rules, contracts and agreements to determine what and when you must report. When you are renewing any of these licenses or relationships, you will also likely have to report your board complaint. An attorney can help you navigate these obligations, determine when you must report, and assist you with an appropriate explanation statement. It is important that the information you share is limited when necessary to protect patient confidentiality and to avoid conflicts with your pending case(s).
     
  • In many states naturopathic doctors are primary care providers. Unless it is very clearly established that you are only treating a patient for an isolated issue, and they have clear regular care through another provider, you run the risk of failing to diagnose or refer the patient for other conditions that should or could have been identified if a standard intake and examination was performed.
     
  • Beware of chronic pain patients seeking out naturopathic doctors to fill prescriptions that have been denied by other providers. These same patients can also be talented in entangling their provider. Our clients frequently report their patient sharing with them they are the only provider who has ever truly cared about them. Patients may feign interest in pursuing naturopathic treatment, but be truly disengaged and uncooperative when it comes to actually following non-pharmacologic treatment regimens. Read “Why NDs Must Use Extra Care When Prescribing” to learn more.
     
  • Many doctors come through a complaint with better resources, improved practices and policies, more timely and accurate documentation, and generally feeling more confident about their practice.

[The above case study is a compilation of a variety of cases over the past few years. Names and details have been fictionalized to illustrate common trends and protect privacy.]

About the Author

Adina Matasaru, principal at Matasaru Law, PC, is an experienced attorney representing clients in complex malpractice defense and prevention, medical ethics and professional license defense. Matasaru has represented naturopathic physicians for more 17 years and is dedicated to the expansion and protection of the profession. She frequently volunteers as a speaker on risk management and medical ethics and advises various alternative healthcare institutions and associations. She is vice chair of the NUNM board of directors. Rebecca Tobias, senior paralegal at Matasaru Law, provided invaluable assistance

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