Prescribing controlled substances to employees of the practice raises the same professional and legal concerns as prescribing to family members, with the additional complexity of the employment relationship and its potential to create coercion dynamics that neither the practitioner nor the employee may have anticipated.
No federal regulation categorically prohibits prescribing controlled substances to employees, but the professional standards that apply to prescribing to family members apply with equal force to prescribing to staff members, and the employment relationship adds specific dimensions that professional guidelines and investigators treat with particular concern.
The Coercion Risk
An employee who receives controlled substance prescriptions from their employer occupies a position in which their continued employment may feel contingent on their continued receipt of those prescriptions, or in which their reluctance to complain about the prescribing relationship may be influenced by the power differential inherent in the employment relationship. State medical ethics guidelines and some state medical practice acts specifically address the prescribing relationship with employees, recognizing that the employment relationship can compromise the objective clinical judgment that legitimate prescribing requires.
The practitioner who prescribes to an employee and who later terminates that employee’s employment, or who modifies the employment relationship in a manner that could be connected to the prescribing, has created a situation in which the former employee’s account of the prescribing relationship may be less favorable than it would otherwise have been. Former employees who cooperate with DEA investigations have access to the prescribing records in their own names and to the knowledge of the practice’s operations that their employment provided.
The DEA’s Perspective
In multiple opioid fraud investigations of medical practices, staff members who received controlled substance prescriptions from their employer provided testimony about the prescribing and about their understanding of the conditions under which it occurred. Some of those accounts described prescribing that the staff member accepted because of the employment relationship rather than because of a genuine therapeutic need. Others described prescribing that was offered by the practitioner as a condition or benefit of employment in ways that the former employee characterized as coercive.
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(212) 300-5196The investigation that develops evidence of controlled substance prescriptions to current or former employees, combined with former employee testimony that the prescribing was not medically motivated, has assembled a particularly damaging narrative about the practitioner’s prescribing intent. The narrative is not limited to the employee prescriptions; it informs the government’s characterization of all of the prescribing as commercially motivated.
When Employee Prescribing Is Appropriate
A practitioner who employs a staff member who has a legitimate medical need for controlled substance therapy faces a choice: establish a formal treating relationship with the employee, with all of the clinical documentation and monitoring that legitimate therapy requires, or decline to prescribe and refer the employee to another provider who can manage the therapy without the employment relationship complication. The second option is almost always the more defensible one.
Where the first option is unavoidable, the clinical record for the employee must meet the same standards as for any other patient, with the additional documentation of why the prescribing relationship with an employee was clinically appropriate. The documentation of the emergency or unavoidable circumstances that justified prescribing to an employee is the documentation that distinguishes clinical necessity from the preferential access that investigators characterize as diversion.
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
The practice that discovers, through an internal compliance review, that a practitioner has been prescribing controlled substances to several employees without formal medical records is a practice that has identified a significant compliance issue. That issue is not limited to the specific prescriptions. It is evidence of a prescribing standard that the practitioner applied to people in their immediate environment that was different from the standard applied to the patient population generally. That differential is what investigations find most significant.
Federal agents execute a search warrant at your medical practice, seizing patient records and prescription logs.
Can they take patient records without patient consent?
A valid federal search warrant overrides HIPAA privacy protections. However, the warrant must be properly scoped. An attorney can challenge overly broad warrants and move to suppress improperly seized evidence.
This is general information only. Contact us for advice specific to your situation.
Practical Approach
The protective approach to potential employee medical needs is to maintain a formal separation between the employment relationship and any medical care provided by the practitioner. Employees who require medical care, including controlled substance prescriptions, should be directed to outside providers. If an emergency arises in the practice setting that requires the practitioner to provide immediate care to an employee, that care should be documented in the same manner as care provided to any patient, and follow-up care should be transferred to an external provider at the earliest opportunity.
