Arizona Licensing Board Investigations Involving Opioid Prescribing – Five Takeaways

Seven years and a pandemic have passed since Governor Ducey declared Arizona’s Opioid Overdose State of Emergency in 2017, leading to the enactment of laws and regulations aimed at safer prescribing and dispensing. These laws obligated prescribers of opioids and other controlled substances to adopt new procedures designed to promote patient safety and decrease the risk of diversion and abuse. At the same time, the Arizona Department of Health Services and the Centers for Disease Control issued updated Opioid Prescribing Guidelines, which outlined recommendations for practitioners prescribing opioids for chronic pain or acute pain. 

As of 2024, many prescribers have successfully integrated these new guidelines and legal requirements into their day-to-day routines. Yet Arizona licensing boards still investigate a concerning number of cases involving practitioners whose opioid-prescribing practices either violate the law or, in the board’s judgment, fall below the standard of care. Cases like this are referred to the boards in a variety of ways, including: 

• • Patient or family member complaint; 
    
    
  • Malpractice settlement or verdict; 
    
    
  • Report from the Arizona Board of Pharmacy that the prescriber is not complying with statutory requirements to check the state prescription drug monitoring program database when issuing controlled substances prescriptions; or 
    
    
  • Report from the Pharmacy Board that the clinician’s prescribing pattern potentially deviates from best practices (i.e., new prescriptions issued for more than 5-day supply to opioid naïve patients or prescribing over 90 MMEs/day). 

MICA’s Risk Team regularly reads Arizona licensing board decisions so we can provide more effective guidance to MICA members. In this “lessons learned” article, MICA shares five takeaways from disciplinary decisions issued by the Arizona Medical Board and the Arizona Regulatory Board of Physician Assistants involving opioid prescribing. We then suggest risk management strategies aimed at minimizing prescriber liability and promoting patient safety. 

Use the Opioid Risk Tool 

In a 2023 disciplinary decision, the Arizona Regulatory Board of Physician Assistants disciplined a PA, in part, for failing to appropriately score and adequately implement the opioid risk tool (ORT). The decision does not provide all the facts the Board considered, but the PA was providing care to a 37-year-old female patient who: 

• • Reported a 5-year history of head, low back, neck, and knee pain (with associated numbness and shooting pain in the legs);
     
  • Had a history of depression, anxiety, bipolar, and borderline personality; and 
    
    
  • During the course of treatment had a urine drug screen positive for a rising marijuana level. 

The PA was prescribing: 

• • Flexeril 10 mg three times daily,
     
  • Fioricet 1 tab every 8 hours, and
    
    
  • Morphine ER 30 mg twice daily. 

The ORT is a self-report tool used to screen adults in primary care settings for increased risk of opioid abuse. It can be administered in less than one minute. ORT questions probe family and personal history of substance abuse, age, psychological disease diagnoses, and any history of preadolescent sexual abuse. The 2018 Arizona Opioid Prescribing Guidelines recommend that clinicians use the ORT as part of a risk/benefit assessment prior to initiating or continuing opioid therapy for chronic pain. 

In the Board’s decision discussed above, based on the limited facts provided, the patient may have scored in the moderate risk range for opioid abuse if the PA had administered the ORT. The Board found that the PA’s failure to conduct a risk assessment using the ORT increased the patient’s risk of diversion, addiction, overdose, central nervous system depression, and death. 

To reduce the risk of licensing board discipline and promote patient safety, clinicians prescribing opioids should: 

• • incorporate the ORT into their workflows,
    
    
  • document screening results in patients’ medical records, and
    
    
  • consider ORT results when making treatment plan decisions.  

Review Patients’ Prior Records 

Evaluating whether a patient is a candidate for long-term opioid therapy should be a multi-step process that includes reviewing prior patient records or consulting with previous providers. Both the Arizona Medical Board and the Arizona Regulatory Board of Physician Assistants have disciplined licensees, in part, for omitting this step from the patient evaluation before initiating opioid therapy.  

In a PA discipline case, the Board said the PA should have obtained records for two new patients who each reported a 5-year history of taking opioids for chronic pain. One patient reported he was changing providers because his previous provider was no longer practicing. The other had been discharged from a pain management practice for multiple adulterated urine screens. 

Standardizing your information gathering process is one strategy that can help you avoid a similar situation. Consider developing written guidelines for medications you frequently prescribe. In the guidelines, list types of clinical data to gather, review, and document prior to prescribing. Your EHR vendor may be able to build alerts into your system to remind you if you omit required data.  

Some practices have a policy that they will not prescribe opioids for chronic pain during a patient’s initial office visit. The policy further provides: 

• • Patients must bring prior medical records to the initial office visit.
     
  • A urine drug screen and physical exam will be performed during the initial visit.
     
  • The prescriber will obtain a report from the controlled substances prescription monitoring database.
     
  • At the second visit, after the prescriber has evaluated all the above information and assessed the patient’s opioid risk score, the prescriber will inform the patient whether they are a candidate for opioid therapy. If not, the practice will offer non-opioid therapy.  

Obtain Informed Consent, Provide Medication Instructions, and Document 

Well-documented informed consent is an essential element of the prescribing process.  Physicians and advance practice providers should obtain informed consent before they start opioid therapy and when they make any changes in the treatment plan. The Arizona Regulatory Board of Physician Assistants has disciplined a licensee, in part, for failing to discuss and document medication instructions and the risks and benefits of opioid therapy.  

In addition, the Arizona Medical Board has disciplined a physician for omitting informed consent and other steps from his initial patient assessment and evaluation. In support of its decision to issue a letter of reprimand, the Board noted that the physician failed to complete any of the following prior to issuing prescriptions to a new patient for Soma 350mg, oxycodone 30mg, and lorazepam 1mg: 

• • Perform an appropriate opioid risk assessment;
    
    
  • Review prior providers’ care through either verbal communication or review of records; and
    
    
  • Obtain adequate written informed consent, including where applicable a discussion of risks associated with concurrent use of opioids and benzodiazepines. 

To reduce the risk of licensing board discipline or malpractice liability, documentation of the informed consent conversation should accurately track the information you provide the patient, such as: 

• • Risks/contraindications;
     
  • Benefits;
     
  • Alternatives;
     
  • Instructions for proper use of the medication;
     
  • Information on safe storage and disposal of medications;
     
  • Dangers to self and others of driving while sedated or confused;
     
  • Overdose risk education and what to do in case of overdose;
     
  • Potential side effects; and
     
  • Things the patient should be alert for when taking the medication.  

If a licensing board reviews your records while investigating your prescribing practices, detailed documentation will strengthen your defense by painting a picture of the thorough informed consent discussion you had with the patient.  

To avoid inadvertently omitting necessary information from your informed consent conversations, consider developing a written protocol that standardizes the process and contains a checklist of essential components. For more information:  

• • On optimizing your informed consent conversations - Read MICA’s Medication Errors and Medical Practice: Reducing the Risk of Claims and Board Complaints. This Guide also discusses closed malpractice cases involving lack of informed consent allegations. 
     
  • On what to include in a consent conversation – Consult the CDC’s Clinical Practice Guideline for Prescribing Opioids for Pain, 2022 version. Recommendation 2 discusses essential elements of an opioid informed consent discussion. 

Thoroughly Document Your Clinical Rationale   

Thorough documentation of your thought process is an essential part of prescribing. Not only does it minimize your risk of licensing board discipline, it also: 

• • Serves as a safeguard against cognitive errors by giving you an additional opportunity to identify weaknesses in your analysis; and
    
    
  • Strengthens your defense of a lawsuit when a plaintiff’s attorney alleges you were negligent in selecting a particular medication or dose or that you disregarded patient-specific contraindications. 

Arizona licensing boards frequently cite as a basis for discipline a prescriber’s failure to document adequate clinical rationale or justification. For example, licensing boards have disciplined prescribers for not documenting adequate clinical rationale to support:  

• • Concurrent prescribing of benzodiazepines and opioids or benzodiazepines, stimulants, and hypnotics;
     
  • Prescribing controlled substances for long-term use in patients with substance use disorder;
     
  • Prescribing Adderall at a higher than FDA-recommended dosage; 
     
  • Prescribing high dose opioid therapy; or 
     
  • Prescribing benzodiazepines or opioids for long term use. 

Address Aberrant Urine Drug Screens and Don’t Ignore Patient Behaviors Suggesting Abuse 

Arizona licensing boards have issued numerous decisions disciplining prescribers who failed to:  

• • Obtain and document an initial urine drug screen prior to initiating opioid therapy; 
     
  • Routinely obtain urine drug screens while a patient remains on opioid therapy;
     
  • Review and document the results of urine drug screens;
     
  • Address aberrant results; and/or
     
  • Address patient behaviors suspicious for diversion or abuse. 

The following are examples of situations where, after investigation, the Arizona Medical Board found unprofessional conduct based on potential or actual patient harm: 

• • A patient who transferred care from another pain practice had a history of reflex sympathetic dystrophy of the hand, severe neuropathy, Raynaud’s disease, chronic pain syndrome, muscle spasms, anxiety, insomnia, and osteoarthritis. During the initial encounter, the patient reported that she was seeing multiple practitioners and taking more medications than prescribed. She requested prescriptions for Soma and Ambien. The physician completed an evaluation, including a urine drug screen and review of the CSPMP, and determined that neither medication was indicated. Instead, the physician prescribed oxycodone 30mg every four hours and lorazepam 0.5mg every twelve hours. The patient returned to see the physician monthly. The physician learned that the patient was obtaining monthly prescriptions from her PCP for Soma 30 mg three times a day and Ambien 10 mg. The patient also reported using alcohol. The Medical Board disciplined the physician, in part, for failing to address the patient’s aberrant behaviors including consuming alcohol and obtaining medications from another provider that the physician had determined were not indicated.
     
  • After reviewing the medical records of three patients, the Board determined that the physician’s care posed a risk of patient harm because the physician failed to address signs that the patients were misusing their prescribed medications. Documentation in each of the three patient charts reflected that the patients regularly requested early refills or dosage increases, reported taking more medication than prescribed, or reported obtaining prescriptions for controlled substances from other providers.
     
  • A physician prescribed Percocet 10/325mg four times daily, Prozac 40mg daily, and Xanax 2mg three times daily to a 58 year-old female with chronic hip pain and DJD, depression, panic attacks, asthma, and chronic opioid dependency. The 30-day MME average was 58. In three years, the physician only obtained five urine drug screens. Although the results indicated the patient was not taking the medications as prescribed and was using marijuana, the physician did not address the patient’s non-compliance. 

Regular use of urine drug screens is intended to promote patient safety by revealing whether patients are using prescribed medications concurrently with other substances that may increase the risk for overdose. Failure of the prescriber to address unexpected results eliminates this patient safety opportunity. Similarly, the Arizona licensing boards expect clinicians to address patient behaviors suggestive of abuse or diversion, such as repeated requests for early refills, requests for dosage increases, and non-adherence to prescribed dosages. 

The CDC offers the following recommendations for talking to patients about toxicology screening results: 

• • Explain that results are meant to improve safety and will not be used punitively.
    
    
  • Explain the differences between expected and unexpected results. 
    
    
  • Ask patients up front what prescription and non-prescription substances they are using and whether a urine screen might produce unexpected results. 
    
    
  • Develop a patient-specific plan for responding to unexpected results. 
    
    
  • Use unexpected results to improve patient safety. This may involve changing the pain management strategy, re-weighing the benefits and risks of continuing opioid therapy, assessing whether to reduce dosages, re-evaluating the plan and the patient more frequently, and/or referring patients for substance use disorder treatment. 

The CDC warns prescribers not to dismiss patients from care on the basis of unexpected screening results: “Dismissal could have adverse consequences for patient safety, potentially including the patient obtaining opioids from alternative sources and the clinician missing opportunities to facilitate treatment for a substance use disorder.”  

The Arizona Medical Board has disciplined at least one physician for inappropriately discharging a patient from his care. The Board noted the abrupt termination of care, without time to establish with a new provider, caused the patient to suffer withdrawal from the opioids the physician had been prescribing.