Benefits of Administrative Law
Aside from litigation, what can states do to combat or prevent pill mills from popping up in their jurisdiction? And what can states do to intercede before a physician or clinic becomes a full-blown pill mill? Enter the power of administrative law.
Most, if not all, states have compiled dozens of administrative regulations that allow states to (1) more quickly identify overprescribing, (2) provide a mechanism for civil enforcement, and (3) assess penalties through the revocation of licenses and imposition of fines. These administrative regulations can improve early detection by providing for investigations for outlier activity and can improve prevention by establishing rules for combating current and future overprescribing. Furthermore, administrative laws can be utilized to institute fines and civil forfeitures, which would potentially discourage the temptation to continue to overprescribe.
Administrative Law Oversight: Licenses and Certifications
Licenses and certifications offer numerous opportunities for oversight through administrative law.
Many pill mills are facilitated through community-based clinics, substance abuse counseling programs, and integrated delivery networks. Each of these programs must be licensed and certified by the state department of health. And the provider of the prescription must in turn be licensed and certified by the state. Community-based and countywide programs also have county-level supervision and certify that the providers are following all of the rules.
After state certification and licensure and self-certification as a valid treatment center, the prescribers must adhere to the rules regarding the number of in-person visits, the number in-person evaluations, and documentation of these in-person visits. See, e.g., Wis. Dep’t Health Servs. Code (May 2019).
Most state departments of health have within them an Office of Inspector General or Department of Health investigative team that can run through applications, certifications, certificates, and documentation to search for outlier activity. More specifically, they are searching for upside-down numbers of high prescribers, or inordinately high volumes of prescriptions dispensed considering the number of patients that the provider is seeing. Yet another means of conducting outlier research is through the use of electronic data and health records to compare the number of requests for reimbursement for counseling with the actual population for that particular town, region, or county.
Administrative Law Penalties: Fines and Forfeitures
Once outliers have been identified, and perhaps a witness has corroborated the goings-on at a particular substance abuse clinic, what can be done to either immediately halt the overprescribing or prevent the practice from simply moving to another location?
Generally, these violations of Department of Health laws and/or licensing/regulation department statutes are subject to fines. What is compelling is that the fines are geared per incident: each violation carries a fine, which can be multiplied per prescription, falsified visit, or inadequate documentation of services for which reimbursement for the visit was requested.
Penalties can also involve licenses. When a prescriber simply shuts down in one area and moves to another, the state licensing laws may follow the unlawful behavior. However, there is sometimes a gap in time during which the regulatory agency must build another case and/or the authorities must deal with the details of revocation of the license.
Sanctions may also apply. “Physicians can face serious legal sanctions for inappropriate prescribing, including malpractice liability, medical board discipline, and criminal convictions.” A prescriber’s malpractice insurance also may be invoked to foot the bill.
When prescribers have accumulated excessive fines and penalties, an agency might move to attach liens to the prescriber’s personal holdings. Furthermore, it may be challenging for the prescriber to procure the necessary malpractice insurance coverage. In fact, insurance companies may decline to cover a practice where its behavior is shown to be intentional or criminal and not merely negligent. If that occurs, the provider would no longer be able to move to another state or county to begin the pill mill all over again because the provider would not be able to obtain the requisite license.
While ending the opioid epidemic will require work by many different parties, the remedies available under administrative law serve as one existing mechanism to attack the epidemic.