We have seen more investigations of physicians or
advanced practitioners (physician assistants and nurse practitioners)
prescribing phentermine to patients. Phentermine is a Schedule IV
drug and we have seen increased scrutiny of weight loss clinics and investigations into the
physicians, nurse practitioners, physician assistants and nurses who work at
them.
The investigations include the following topics:
1.
The business structure of the weight
loss clinics and whether management companies or non-physicians are involved in
the business.
2.
Whether the physician established a
bona-fide doctor-patient relationship before prescribing phentermine to
patients.
3.
Whether the physician obtained a
thorough history or complete a thorough physical examination prior to
initiating treatment utilizing a Schedule IV controlled substance.
4.
Whether the physician continued
prescribing phentermine to a patient who had failed to lose weight after taking
the controlled substances over a period of thirty days.
5.
Whether the physician had initiated
treatment utilizing a Schedule IV controlled substance without having performed
a review of the patient's prior medical and weight-loss program records to
determine that the patient had made a substantial good-faith effort to lose
weight in a treatment program utilizing a regimen of weight reduction based on
caloric restriction, nutritional counseling, behavior modification and exercise,
without the utilization of controlled substances, and that said treatment had
been ineffective.
6.
Whether physician had dispensed drugs
having addiction-forming or addiction-sustaining liability otherwise than in
the course of legitimate professional practice.
7.
Whether the physician had violated 21
C.F.R. Section 1306.04(a) which requires that a controlled-substance
prescription "be issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional practice."
8.
Whether the phentermine is being
properly stored and dispensed under state and federal rules. Are the DEA logs
maintained properly? Is the receptionist or a medical assistant improperly
handing the phentermine to the patients? Is the phentermine properly labeled
with instructions?
9.
Are referral fees given to patients
for referring friends in violation of state anti-kickback and referral fee
rules?
10. Is
the phentermine being given at a discount if private or government insurance is
billed for other services?
We handled one case outside of California where
law enforcement sent in a confidential informant to gather information on
the physician’s weight loss practice. The government informant was female,
short and weighed over 210 pounds at the time of her initial visit to the
practice and it was obvious that law enforcement chose her to participate in
the investigation because she was not only obese, but had a number of other
medical conditions as well.
In that case, the physician was investigated for
prescribing phentermine (controlled substances) to the undercover without
performing an adequate physical examination, properly documenting her medical
history, recording adiposity measurements such as BMI or waist circumference,
conducting any laboratory testing, or verifying that the undercover had made
good faith efforts to lose weight without the aid of controlled substances. We
helped obtain the dismissal of criminal charges but the DEA and Medical Board
still pursued the physician.
If you have medical weight loss as part of your
practice, now is the time to get compliant with state and federal rules and
regulations -- before there is an an investigation. Have us or another experienced firm conduct an audit and
make sure you comply before the Medical Board or DEA pays your office a visit or requests records from your office. If there is an investigation, get counsel right away so you do not respond to records requests or interview requests without representation.
Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
213-233-2260
Email: tgreen@greenassoc.com
