Current through Register Vol. 49, No. 9, September, 2024
REGULATION NO. 2
The Arkansas Medical Practices Act authorizes the Arkansas State
Medical Board to revoke or suspend the license issued by the Board to practice
medicine if the holder thereof has been found guilty of grossly negligent or
ignorant malpractice.
"Malpractice" includes any professional misconduct, unreasonable
lack of skill or fidelity in professional duties, evil practice, or illegal or
immoral conduct in the practice of medicine and surgery.
It shall include, among other things, but not limited to:
1. Violation of laws, regulations, and
procedures governing payment to physicians for medical services for eligible
public assistance recipients and/or other third party payment
programs.
2. Participation in any
plan, agreement, or arrangement which compromises the quality or extent of
professional medical services or facilities at the expense of the public
health, safety, and welfare.
3.
Practicing fraud, deceit, or misrepresentation in the practice of
medicine.
4. The prescribing of
excessive amounts of controlled substances to a patient including the writing
of an excessive number of prescriptions for an addicting or potentially harmful
drug to a patient.
5. The
prescribing of Schedule II controlled substances by a physician for his own use
or for the use of his immediate family.
6. *The treatment of pain with dangerous
drugs and controlled substances is a legitimate medical purpose when done in
the usual course of medical practice. If the provisions as set out below in
this Resolution are met, and if all drug treatment is properly documented, the
Board will consider such practices as prescribing in a therapeutic manner, and
prescribing and practicing medicine in a manner consistent with public health
and welfare.
A. However, a physician who
prescribes **narcotic agents Schedule 2 [except 2.6(e)], 3, 4, and 5, and to
include the schedule drugs Talwin, Stadol, and Nubain, for a patient with pain
not associated with malignant or terminal illness will be considered exhibiting
gross negligence or ignorant malpractice unless he or she has complied with the
following:
a. The physician will keep accurate
records to include the medical history, physical examination, other evaluations
and consultations, treatment plan objective, informed consent noted in the
patient record, treatment, medications given, agreements with the patient and
periodic reviews.
b. The physician
will periodically review the course of schedule drug treatment of the patient
and any new information about etiology of the pain. If the patient has not
improved, the physician should assess the appropriateness of continued
prescribing of scheduled medications or dangerous drugs, or trial of other
modalities.
c. The physician will
obtain written informed consent from those patients he or she is concerned may
abuse controlled substances and discuss the risks and benefits of the use of
controlled substances with the patient, his or her guardian, or authorized
representatives.
d. The physician
will be licensed appropriately in Arkansas and have a valid controlled
substance registration and comply with the Federal and State regulations for
the issuing of controlled substances and prescriptions, more especially the
regulations as set forth in 21 Code of Federal Regulations Section 1300, et
sequence.
B. Treatment
of Chronic Nonmalignant Pain:
a. "Chronic
nonmalignant pain" means pain requiring more than three (3) consecutive months
of prescriptions for:
i. An opioid that is
written for more than the equivalent of ninety (90) tablets, each containing
five milligrams (5mg) of hydrocodone;
ii. A morphine equivalent dose of more than
fifteen milligrams (15mg) per day; or
iii. In the specific case of tramadol, a dose
of fifty milligrams (50mg) per tablet with a quantity of one hundred twenty
(120) tablets; "Opioid" means a drug or medication that relieves pain,
including without limitation:
i.
Hydrocodone;
ii.
Oxycodone;
iii. Morphine;
iv. Codeine;
v. Heroin; and
vi. Fentanyl;
"Prescriber" means a practitioner or other authorized person who
prescribes a Schedule II, III, IV, or V controlled substance.
b. Patient evaluation -
a patient who is being treated with controlled substances for chronic
nonmalignant pain shall be evaluated at least one (1) time every six (6) months
by a physician who is licensed by the Arkansas State Medical Board.
c. Prescriber requirements:
i. For a patient with chronic nonmalignant
pain, a prescriber, at a minimum and in addition to any additional requirements
of the Arkansas State Medical Board, shall:
1.
Check the prescriptive history of the patient on the Prescription Drug
Monitoring Program at least every six (6) months;
2. Have a signed pain contract with the
patient that states, at a minimum, the expectations of the prescriber for the
behavior of the patient which may include:
a.
A requirement for random urine drug screenings to help ensure that the patient
is abiding by the requirements of the contract; and
b. A requirement for random pill counts to
ensure compliance with the prescription.
ii. The requirements of this section shall
not apply to a patient:
1. Whose pain
medications are being prescribed for a malignant condition:
2. With a terminal condition;
3. Who is a resident of a licensed healthcare
facility;
4. Who is enrolled in a
hospice program; or
5. Who is in an
inpatient or outpatient palliative care program.
iii. Within the first two (2) years of being
granted a license in the state, a prescriber shall obtain a minimum of three
(3) hours of prescribing education approved by the Arkansas State Medical
Board. The education approved by the board under this section shall include:
1. Options for online and in-person programs;
and
2. Information on prescribing
rules, regulations, and laws that apply to individuals who are licensed in the
state.
3 Information and
instructions on prescribing controlled substances, record keeping and
maintaining safe and professional boundaries.
This section shall apply to all prescribers licensed after
December 31, 2015.
C. A prescriber who has been found by the
Arkansas State Medical Board to be in violation of a rule or law involving
prescription drugs shall be required by the appropriate licensing board to
register with the Prescription Drug Monitoring Program and access patient
information before writing a prescription for an opioid. The board, in its
discretion, may remove this requirement after a period of time if the board
deems removal of the requirement appropriate.
7. A licensed physician engaging in sexual
contact, sexual relations or romantic relationship with a patient concurrent
with the physician-patient relationship; or a licensed physician engaging in
the same conduct with a former patient, if the physician uses or exploits
trust, knowledge, emotions or influence derived from the previous professional
relationship, shows a lack of fidelity of professional duties and immoral
conduct, thus exhibiting gross negligence and ignorant malpractice. A patient's
consent to, initiation of, or participation in sexual relationship or conduct
with a physician does not change the nature of the conduct nor the
prohibition.
8. **Requiring minimum
standards for establishing physician/patient relationships. A physician
exhibits gross negligence if he provides and/or recommends any form of
treatment, including prescribing legend drugs, without first establishing a
proper physician/patient relationship.
A. For
purposes of this regulation, a proper physician/patient relationship, at a
minimum requires that:
1.
A. The physician performs a history and an
"in person" physical examination of the patient adequate to establish a
diagnosis and identify underlying conditions and/or contraindications to the
treatment recommended/provided, OR
B. The physician performs a face to face
examination using real time audio and visual telemedicine technology that
provides information at least equal to such information as would have been
obtained by an in-person examination; OR
C. The physician personally knows the patient
and the patient's general health status through an "ongoing" personal or
professional relationship;
2. Appropriate follow-up be provided or
arranged, when necessary, at medically necessary intervals.
B. For the purposes of
this regulation, a proper physician/patient relationship is deemed to exist in
the following situations:
1. When treatment is
provided in consultation with, or upon referral by, another physician who has
an ongoing relationship with the patient, and who has agreed to supervise the
patient's treatment, including follow up care and the use of any prescribed
medications.
2. On-call or
cross-coverage situations arranged by the patient's treating
physician.
C. Exceptions
- Recognizing a physician's duty to adhere to the applicable standard of care,
the following situations are herby excluded from the requirement of this
regulation:
1. Emergency situations where the
life or health of the patient is in danger or imminent danger.
2. Simply providing information of a generic
nature not meant to be specific to an individual patient.
3. This Regulation does not apply to
prescriptions written or medications issued for use in expedited heterosexual
partner therapy for the sexually transmitted diseases of gonorrhea and/or
chlamydia.
4. This Regulation does
not apply to the administration of vaccines containing tetanus toxoid (e.g.,
DTaP, DTP, DT, Tdap, Td, or TT) or inactive influenza vaccines.
History: Adopted June 17, 1976; Amended March 13,
1997; Adopted December 3, 1998; Adopted April 6, 2001; Amended February 7,
2002; Amended April 3, 2008; Amended April 12, 2012; Amended December 14,
2015.
