Best Prescribing Practices for DEA Registered Physicians

Jonathan P. Novak

When scrutinizing a practitioner’s prescribing habits, DEA looks at whether the prescriptions have been issued “outside the usual course of professional practice” or for “other than a legitimate medical purpose.”  The most common violations for practitioners, and the ones most often leading to administrative action seeking revocation of a prescriber’s DEA registration, stem from a physician prescribing in ways that, simply put, he should not.
In years past, DEA was eager to define these kinds of “other than a legitimate medical purpose” prescriptions as those prescriptions so obviously over the line as to defy logic. Examples popped up that challenged rationale and reason, such as pediatricians prescribing oxycodone to multiple adult patients without office visits, practitioners exchanging prescriptions for sexual favors, or physicians practicing “telemedicine” by jumping on a conference call, conducting an “examination” of the patient, and then writing Schedule II controlled substance prescriptions for a patient they’ve never met (often located in different states).

As the agency pursued more and more cases against prescribing practitioners, DEA has frequently looked to technical ways to determine what, exactly, constitutes “the usual course of professional practice.”  In order to define the terms of this phrase, DEA will look to the usual practices of any physician within the same geographical area, typically defined in the state laws and regulations related to prescriptions.

In 2017, DEA issued its Final Order denying the application of Wesley Pope, M.D., 82 F.R. 14944 (2017).  As part of its basis for denial, DEA looked at the prescribing practices of Dr. Pope, and compared them to various Oklahoma medical board guidelines and state laws defining the proper record-keeping and the proper baseline for prescribing opioid controlled substances to a patient.  Underlying everything was a simple definition, a prerequisite to prescribing anything to any patient: a bonafide physician-patient relationship.

The definition of a bonfide physician-patient relationship varies state by state, but nearly every state requires that, prior to prescribing, a practitioner must establish a bonfide relationship with the patient.  The establishment of this relationship typically involves some basic, common sense steps: see the patient in person; perform a physical examination; question the patient regarding their symptoms; focus the treatment on both alleviating the symptoms and determining the cause of the symptoms; work towards established goals in treatment, and record the progress of those goals over the course of treatment.
The establishment of a bonafide physician-patient relationship is not a guarantee that your prescribing is in the usual course of professional practice. But the absence of a bonafide physician-patient relationship means that every prescription issued could be considered outside the usual course of professional practice, and could lead to trouble with your DEA registration down the line.

More frequently than I would have thought, doctors have asked me about the legality of issuing a prescription for a family member, or for a friend who threw their back out while moving heavy furniture.  Some states outright prohibit prescribing to family members. But even those that allow it typically must reconcile that permission with the requirement for a bonafide physician-patient relationship.  And while the temptation exists, it is important to bear in mind that the Agency has consistently held that even one single act of bad prescribing is enough to lead to the revocation of a DEA registration.

Mr. Novak is a former attorney for the United States Department of Justice Drug Enforcement Administration.  Jonathan is now working nationwide representing public entities, including counties, cities, and Native American tribes, in litigation against manufacturers and distributors of opioid controlled substances, as well as providing education and legal guidance on state and federal controlled substance regulations.  If you have any questions or concerns regarding regulatory compliance, state or federal enforcement action on your controlled substance or pharmacy registration, or if you represent a public entity interested in learning more about potential litigation against opioid manufacturers and distributors, please contract Jonathan directly ([email protected] )

This blog is for informational purposes only and meant to provide general insight and commentary; it is not meant to convey specific legal advice. By using this blog site you understand that there is no attorney client relationship of any kind. The information contained in this blog is opinion based and should not be used as a substitute for skilled legal advice from a licensed professional attorney in your state.