1 NEVADA STATE BOARD OF MEDICAL EXAMINERS 2 STATE OF NEVADA 3 ---oOo--- 4 5 6 7 8 9 10 11 12 TRANSCRIPT OF PROCEEDINGS 13 WORKSHOP 14 January 20, 2000 15 Las Vegas, Nevada 16 17 18 19 20 21 22 23 Reported by: Karen Bryson Certified Court Reporter #120 Page 1 1 APPEARANCES 2 3 4 RICHARD J. LEGARZA Attorney at Law 5 STATE BOARD OF MEDICAL EXAMINERS 1105 Terminal Way #301 6 Reno, Nevada 7 8 LAWRENCE P. MATHEIS WELDON E. HAVINS, M.D. 9 JAMES G. MARX, M.D. CORINNE DAVIS, M.D. 10 KAREN L. CROSS, M.D. 11 Page 2 1 LAS VEGAS, NEVADA, THURSDAY, JANUARY 20, 2000, 1:30 P.M. 2 ---oOo--- 3 4 MR. LEGARZA: Apologize for running a little 5 late, our airplane didn't leave Reno till -- supposed to be 6 10:25, and evidently the plan we were supposed to be on hit a 7 bird in Portland, so they had to send for another plane from 8 Portland. So we're running a little bit late. 9 At any rate, we are here, I would like for 10 purposes of the record to state that this is the time and 11 place pursuant to notice for the having workshops on to 12 select comments on a petition requesting amendment of 13 regulations of the Nevada State Board of Medical Examiners. 14 The board received a petition requesting 15 amendment of the regulation to pain management that were 16 adopted effective September 27, 1999, LCB R007-99, and we've 17 set up two workshops, one for today, we are in Room 4412E of 18 the Sawyer State Office Building, 555 East Washington Avenue, 19 Las Vegas, Nevada. 20 We were supposed to start at 1:30, it's about 21 1:35, for purposes of taking presentations with respect to 22 anyone who is interested or may be interested in telling the 23 Nevada State Board of Medical Examiners their position and/or 24 positions with respect to the pain management regulations 25 that the board adopted effective September 27, 1999. Page 3 1 For purposes of the official and formal notice 2 that went out, included in the notice were the proposed 3 amendments that were presented to the board by Dr. Havins, 4 Weldon E. Havins, at the last board meeting in Las Vegas, 5 Nevada. 6 And so the language that is in the notice of the 7 workshop is language that I at least attempted to copy 8 work-for-word out of Dr. Havins' petition to the board for 9 consideration of the amendment of the regulations that the 10 board adopted. 11 This is not the time and place for the board to 12 adopt regulations or for that matter to change regulations. 13 This is simply a workshop to allow people to give their input 14 with respect to what changes should be made to these 15 particular regulations. 16 And the record here will be prepared by the 17 court reporter, and the record will be delivered to the 18 Nevada State Board of Medical Examiners and will be in their 19 packet for their next board meeting to make a determination 20 as to what, if any, amendments to the regulation they may 21 deem appropriate at that time. 22 And then if they deem amendments appropriate, I 23 would assume that they would instruct me to prepare those, 24 and then once again have -- conduct workshops and set them up 25 for another board meeting for adoption. Page 4 1 The record should also reflect that in the 2 possession of the board at this time are two other petitions, 3 Dr. Havins has filed another petition for amendment of the 4 particular code sections that we've talked about, but mainly 5 as I see it and as I have reviewed it, and the doctor is 6 present and he can certainly correct me when I request for 7 folks to make their presentations, but I think that generally 8 the changes that Dr. Havins requested in his December 4 9 petition filed with the board are the same, but there are 10 some differences in this other petition, which Dr. Havins has 11 filed, which is undated, Doctor, so you might remember you 12 may want to address that when you state your position here. 13 But generally, the second petition really uses 14 the NAC designation numbers more than anything else, but I 15 think there are some minor language modifications or request 16 changes with respect to that as well, so we can address those 17 at this time. 18 Then there's also in possession of the board a 19 petition to propose amendment of the Nevada Administrative 20 Code, which was filed with the board and was received, seems 21 to me like it was last Monday -- no, couldn't have been last 22 Monday -- oh, maybe it was one day last week, signed by 23 Mitchell Miller, M.D., president, Nevada State Medical 24 Association, and Marietta Nelson, M.D., president-elect, 25 Nevada State Medical Association. Page 5 1 And in this petition, there is a request that 2 the Nevada State Board of Medical Examiners repeal in their 3 entirety the regulations that the board has adopted with 4 respect to the pain management and in lieu thereof adopt by 5 reference the model guidelines of the Federation of State 6 Medical Boards Incorporated of the United States of America. 7 I think that that is all the information that 8 the board has in its possession at this time. I have a 9 letter from Dr. Parker who has indicated that he has given 10 Dr. Havins -- something for Dr. Havins to present here today. 11 I would -- before I open it up to whomever cares 12 to speak here today, I would request that you may do it from 13 where you're seated, if you're comfortable there, you may 14 certainly come up here to this table where I am and spread 15 your papers out as you see fit. 16 Remember that the court reporter is here. The 17 board obviously needs to hear your comments, your ideas, and 18 your suggestions, so you need to situate yourself in a place 19 where the court reporter can take down what it is that you 20 have to say. 21 I would request of you that you identify 22 yourself. After you identify yourself, I would request of 23 you that you also indicate for purposes of the record who you 24 represent, whether you're here in your individual capacity as 25 either a physician or a lawyer, or whether you're here Page 6 1 representing any one person or persons or any entity or 2 entities that are interested in these regulations. 3 So I don't have any particular format that I 4 care to follow. I'll open the floor up to anyone who cares 5 to be first. 6 If you would, I generally say this, I forgot to 7 say it, if you would simply spell your last name for the 8 reporter so that she doesn't have to ask you to spell it so 9 she'll get your name correctly. 10 Thank you, sir. 11 MR. MATHEIS: Yes, my name is Larry Matheis, 12 M-a-t-h-e-i-s, I'm Executor Director of the Nevada State 13 Medical Association. I will be attending along with 14 Dr. Mitchell Miller, the President of the Nevada State 15 Medical Association, the Reno workshop tomorrow, and we'll 16 have more extensive comments then. 17 All I'd like to do is clarify or state my 18 understanding of what the problems are that we're currently 19 facing, and what actions the board needs to consider in order 20 to alleviate them. 21 It's my basic impression there really isn't any 22 substantive disagreement on the intention. The intention of 23 this process, which actually started a year and a half ago, 24 started in the spring or summer of 1998, is to put into 25 regulation a safe harbor description of how physicians who Page 7 1 are appropriately treating and managing pain may do so 2 without becoming a potential target for investigation. 3 That the issue has initially raised during the 4 legislature in 1995, that the statute was revised using the 5 language that basically that an intractable pain treatment 6 would not result in sanctions against a physician. 7 And for the record, again, I would like to say 8 that there was no -- there was no proximate Nevada cause for 9 that statutory change or for these regulatory changes, that 10 neither the Board of Medical Examiners nor the Board of 11 Pharmacy have taken sanctions against physicians for 12 appropriately dealing with pain-related issues. 13 However, there has been a great deal of concern 14 about the federal government's confused and confusing 15 policies regarding drugs, including prescription drugs. And 16 the move to change the Nevada statute was in reaction to 17 sanctions against physicians in several other states 18 including California and Virginia, and it was to preclude 19 that and to start a dialogue. 20 The adoption of regulations clarifying that 21 statutory change were postponed by common agreement because 22 of the development -- because of the process of the 23 Federation of State Medical Boards of the U.S. in creating a 24 national committee with the intention of developing model 25 consensus guidelines. Page 8 1 That was accomplished in the spring of 1998, and 2 the board agreed that it was time to adopt explanatory 3 guidelines of the -- of what the statute meant, and that 4 these national guidelines would be the sources of those -- of 5 whatever would be adopted. 6 And the board named a task force including, as I 7 recall, all of the licensing boards which logically would 8 have to act on this at this point, that is all of the 9 prescribing practitioners who are permitted by Nevada law and 10 the Board of Pharmacy, and it also included the Nevada State 11 Medical Association, the Hospice Association, and the School 12 of Medicine. 13 I think that was essentially the representation 14 along with the boards. 15 MR. LEGARZA: Pharmacy Board and Nursing Board. 16 MR. MATHEIS: Yeah, I think it was basically 17 each of the licensing boards that have prescribing 18 practitioners who could be implementing this. 19 The task force really did its work in an 20 exceptionally short time because it was basically agreed that 21 the national guidelines were the appropriate standard. And 22 it was -- then the issue was simply to incorporate those into 23 regulatory language. 24 That was done through the fall and winter of '98 25 and '99 and was adopted by the board in the spring of '99. Page 9 1 And at that point I think most people thought that the action 2 was -- had been appropriate and that it was implementable. 3 Later during the summer as part of the routine 4 process of reviewing all regulations in the state, the 5 Legislative Counsel Bureau made some alterations to the final 6 regulations. 7 While those are intended and in fact are to be 8 nonsubstantive, several of the changes have substantive 9 consequences that we believe make parts of the regulation 10 unimplementable. It radically changes the intent of the task 11 force, the intent of the board, and the intent of the 12 guidelines. 13 Specifically, the problems are found in -- and I 14 identified those in my correspondence with Mr. Lessly from 15 November 4th, specifically was in the Section 8 of the 16 regulations as posted effective September 27, 1999. 17 That practical problem that was created was that 18 the revised language would require a written consent by the 19 patient to be a part of the medical record when there was any 20 prescribed medication for treatment of pain. And that is 21 really not focused on the issue which the regulations were 22 taking and appears to be simply an error of understanding, 23 the impact of that particular change. 24 And so it is our -- has been our recommendation 25 that the board look at how best to make sure that the Page 10 1 intent -- its intent, which was to create a clear, safe 2 harbor for appropriate pain management by physicians, be 3 pursued. 4 It's clear that at the minimum this section of 5 the existing regulations need to be revised, revised so that 6 they do not require the written, informed consent statement 7 in every medical record where there has been a prescription 8 for treatment of pain, and, rather, to get back to the 9 substance of the proposed regulation, the regulations as 10 adopted by the board at its meeting, that's in the spring of 11 1999, and that would be one way of resolving the specific 12 problem. 13 A second way which has been discussed was 14 discussed by the task force -- was discussed I believe at the 15 board's initial meeting on the matter, was the possibility of 16 simply adopting the federation's model guidelines by 17 reference. 18 If subsequently there are later versions of it 19 that would require regulations be changed, and if indeed 20 there would be any amendments or modifications to any of the 21 language in it, those would have to be adopted by regulation. 22 The task force chose the route of simply 23 incorporating the guidelines into regulatory language. And I 24 think I said in earlier workshops on the original regulations 25 that in doing that, there was some loss in the consistency of Page 11 1 the discussion, clarity of the purpose of the regulations, 2 but that there was in the -- certainly in the draft 3 considered by the board and approved by the board there was 4 nothing that was unimplementable. 5 But I think as it now exists, that section and 6 these -- including the mention of prevailing standards as a 7 term of art, that that one section in that one paragraph 8 needs either to be revised back to something like the 9 original language, or an alternative approach like that of 10 simply adopting by reference the entire guideline be 11 considered by the board. 12 Either of those approaches would be a remedy to 13 the immediate problem. And it's really a question that if 14 the practitioners, who have to live with these clinical 15 guidelines are better able than I to judge which is the best 16 approach, I think same for the board, which is the best 17 approach for the board to be able to assure the 18 implementation of the intent of the legislature. 19 So that's really kind of my overview, my 20 understanding of where we're at, that the current situation 21 is a significant problem, that if it were enforced, which my 22 understanding, there is no intention to enforce the 23 particular section that's at -- in discussion, but if it were 24 enforced, it would cause a significant crisis in the medical 25 care system in the state. So it's not anybody's intention to Page 12 1 do that. 2 We are also concerned that it could lead to 3 unnecessary -- and we would think in the end -- unsuccessful 4 litigation against the -- charging any physician who failed 5 to implement this at this time. We don't think that in 6 fact -- because this was not the intention of the board, that 7 it's -- any court would find that that's a reasonable thing 8 to do. 9 So I think we're simply at the stage of trying 10 to find a way to remedy a particular problem and then move 11 ahead into what is the much more important question, and that 12 is assuring that physicians are using the current information 13 level as appropriate for managing pain in Nevada patients. 14 And that includes appropriate continuing 15 education, monitoring of what is actually done, encouraging 16 as the regulations do, that appropriate standards mean not 17 undertreating those who need pain management and not 18 overtreating them, doing it in a way that is sensitive to the 19 patients' needs. 20 So we look forward to working with the board on 21 fixing the particular problem and then moving ahead to full 22 implementation of the effective pain management. 23 MR. LEGARZA: Can I ask you a question here? 24 Do you have any specific ideas or proposals 25 other than the petition that has been filed by the unanimous Page 13 1 direction of the Government Affairs Commission of the medical 2 association to simply adopt the model guidelines? 3 MR. MATHEIS: Well, either the language in the 4 petition which specifically goes to changing the language in 5 Section 8 or adopting it by guidelines. Either approach we 6 think would work. It really depends on what you get as a 7 consensus of what everybody's most comfortable with, 8 including the board, what is the most effective one to 9 implement. I think either can be done. 10 The language in the petition that's on the table 11 today and the language of the petition that we proposed 12 regarding adopting by reference the guidelines both -- 13 there's simply two approaches to the same issue. 14 And that is making sure that the specific parts 15 of the regulation which don't work aren't kept in regulation 16 language. And the broader issue is whether it's a better 17 overview approach to simply adopt the guidelines by 18 reference. 19 MR. LEGARZA: Well, let me ask you this: In the 20 petition of the Nevada State Medical Association signed by 21 the president and the president-elect, it says that -- the 22 last page, maybe you can clarify further tomorrow, I don't 23 know, but it says, "The Nevada State Medical Association is 24 aware of petition(s) for amendments to the current new laws 25 regarding the evaluation and treatment of pain by licensees." Page 14 1 And I am -- I would state for purposes of the 2 record that I believe that's a reference to the two that we 3 have of Dr. Havins. 4 "While well-intentioned, we regard these as an 5 inadequate attempt to 'fix' an unworkable set of laws 6 intended to encourage more aggressive treatment of patients 7 in pain with the goal of more adequate control," and then 8 there's a word missing, but I think it should have "of their 9 pain. 10 "We therefore respectfully request that the 11 board disregard petitions to amend the new laws, and, rather, 12 substitute the Federation of State Medical Boards Model 13 Guidelines for the Use of Controlled Substances in the 14 Treatment of Pain for the current new pain evaluation and 15 treatment laws." 16 But you're saying that what I'm hearing from you 17 is something maybe a little toned down from this last 18 paragraph, is that a fair statement? 19 MR. MATHEIS: Yes. I think the -- I think the 20 more -- a more desirable approach I think for most physicians 21 who have looked at it would be the one proposed in the last 22 petition, the one signed by Dr. Miller and Dr. Nelson. 23 That is kind of a step back, and rather than 24 trying to rewrite in terms with which lawyers are comfortable 25 but doctors are uncomfortable the guidelines, then maybe the Page 15 1 better approach is to adopt the guidelines by reference. 2 That way you're not removing it from context. 3 If the board is uncomfortable with going that 4 far in reconsideration of its approach, then, at the very 5 least, the revision of the language in Section 8 of the 6 current regulation needs to be modified as suggested by 7 your -- 8 MR. LEGARZA: Are you familiar with Dr. Havins' 9 petitions? 10 MR. MATHEIS: I have reviewed Dr. Havins' 11 petitions. Since he is here, he can explain them. 12 I, not being a lawyer, try to understand the law 13 in terms of its policy purposes. 14 And the policy purpose, as I understand it, is 15 to make sure that if we are going to have regulations 16 defining the safe harbors for the pain management, that they 17 be implementable. And right now the one section language 18 that we've referred to makes it unimplementable. 19 And so there are two approaches, and depends, 20 really, as the board looks at its options, which one the 21 board is more comfortable with. 22 It's clear that the Nevada State Medical 23 Association leadership is more comfortable with simply 24 adopting the guidelines in their physician-friendly language. 25 However, at the very minimum, actually revising language in Page 16 1 the regulations has to be done. 2 MR. LEGARZA: I would just like to make just a 3 couple of comments for the record, and what Mr. Matheis has 4 said with respect to the intent of the task force, with the 5 intent of the promulgation of the regulation, with the intent 6 of what him and I did together on this thing, he's right on. 7 There was never an intent to do anything different than what 8 Mr. Matheis has in fact represented here. 9 MR. MATHEIS: Thank you, we're in valiant 10 agreement. 11 MR. LEGARZA: Anything else, sir? 12 MR. MATHEIS: No, thank you. 13 MR. LEGARZA: The next person, please? 14 DR. HAVINS: My name is Weldon Havins, I'm a 15 licensee of the Board of Medical Examiners, been a licensed 16 physician in Nevada since 1974, license number 2867. I'm 17 also an attorney and licensed in Nevada. 18 And I have submitted petitions, and I am aware 19 of the Medical Association's petition, and my view is that 20 the Medical Association's petition is superior to my 21 petitions, which change the current law I think in a less 22 effective manner than what occurred by adopting the 23 Federation of State Medical Boards model guidelines for the 24 treatment -- for the use of controlled substances to treat 25 pain by reference. Page 17 1 So my preference personally would be that the 2 Nevada State Medical Association's petition to adopt the 3 Federation of State Medical Boards model guidelines supersede 4 and be accepted by the board over my suggested -- my 5 petitions for suggested changes. 6 The reason I said the second petition is that in 7 Nevada Administrative Code 630, one of the requirements for 8 submitting a petition is to put it in the correct format 9 acceptable to the Legislative Counsel Bureau. 10 And since the adopted regulations have been 11 codified to December 22nd and were made available to me, I 12 rewrote the petition with some -- with a few small changes, 13 one small change that I can think of right now, and submitted 14 it in the form of -- just as you said, changing or suggesting 15 regulatory changes to the Nevada Administrative Code rather 16 than the adopted regulations which are now obsolete. 17 The one change that differs in substance is the 18 change that before prescribing controlled substances be 19 preceded by "except in an emergency" before prescribing -- 20 MR. LEGARZA: And I think -- I think paragraph 21 one you've got a little bit of change there, but the most 22 substantive one obviously is that "except in an emergency." 23 DR. HAVINS: Right. 24 MR. LEGARZA: Let me just look at -- your 25 paragraph one also is in my opinion fairly substantial -- a Page 18 1 fairly substantial change, and I might say an improvement. 2 DR. HAVINS: Oh. I must admit that those 3 changes were made after a phone call with you at your noting 4 and suggesting some improvements. 5 MR. LEGARZA: Okay. 6 DR. HAVINS: I would like to note for the record 7 that Utah has accepted or adopted by reference the model 8 guidelines, the Tennessea Osteopathic Board has adopted by 9 reference, Arizona has essentially -- while not adopting by 10 reference, essentially they have included in their 11 regulations the federation guidelines in toto without change. 12 Oregon is -- talking to the Oregon board, my 13 understanding is they are going to do that. There is a 14 senate bill that is currently in the Oregon legislature to 15 adopt by reference these guidelines. 16 MR. LEGARZA: Let me -- 17 DR. HAVINS: We have guidelines adopted in 18 Nevada regarding the evaluation of the worker's compensation 19 physical disability rating system. The AMA guides have been 20 adopted by reference, and I believe that's included in the 21 Nevada State Medical Association's petition. 22 MR. LEGARZA: Can I interrupt and ask you a 23 question with regard to that? 24 DR. HAVINS: Yes. 25 MR. LEGARZA: Those citations in the Nevada Page 19 1 State Medical Association's petition with respect to adoption 2 by reference were specific statutory citations, though, 3 weren't they? Specific statutory citations to Chapter 616C 4 which says in the legislative language thou shalt adopt by 5 reference. We don't have that with respect to the Nevada 6 State Board of Medical Examiners in anything. 7 So if we're going to adopt by reference or have 8 the ability to adopt by reference, would you agree with me 9 that we have to go by the authority of 233B.040, 10 subparagraph, I think it's three, which I -- you have also 11 cited I think in your -- 12 DR. HAVINS: Yes. 13 MR. LEGARZA: Nevada Medical Association. 14 Anyway, that's our authority. We don't have a statutory 15 mandate from the legislature as the worker's comp does in 16 616C, so they would seem to me like maybe that portion of the 17 Medical Association's points are well-taken. But I don't 18 think that we have that authority. 19 DR. HAVINS: If I may read NRS 233B.040, number 20 three, "An agency may adopt by reference in a regulation, 21 material published by another authority in book or pamphlet 22 form if: 23 "(A) It files one copy of the publication with 24 the Secretary of State and one copy with the State Library 25 and Archives Administrator, and makes at least one copy Page 20 1 available for public inspection with its regulations; 2 And, (B) "The reference discloses the source 3 and price for purchase of the publication." 4 To me that means that the agency, that is the 5 Board of Medical Examiners, may adopt by reference material 6 published by another authority and book or pamphlet form so 7 to speak. 8 As I read this as an attorney, this grants the 9 Board of Medical Examiners the authority and power to adopt 10 by reference the Federation of State Medical Boards 11 guidelines. 12 MR. LEGARZA: What's your construction of the 13 word "authority" in that statute, Mr. Lawyer? 14 DR. HAVINS: My construction leans heavily on 15 the Legislative Counsel Bureau who I contacted. And 16 authority means -- it would mean some recognized organization 17 or a recognized treatise. 18 MR. LEGARZA: Let me state for purposes of the 19 record, because this is a workshop, and I think a friendly 20 thing, Mr. Matheis and I had a conversation the other day, 21 and he reminded me that I had said early on that we couldn't 22 adopt by reference the federation guidelines. 23 I said, gee, Larry, I don't think I would say 24 that, because I believe that we ought to be able to do so. 25 Then I got to reading the statute, and the word "authority" Page 21 1 concerned me because one may take the position that the word 2 "authority" would be applicable to some other governmental 3 type agency such as an administrative agency of the United 4 States of America that has the authority, authority to 5 promulgate regulations and we have. 6 And in talking with Larry the other day on the 7 phone, I said we've adopted by reference those types of 8 things since I've been the lawyer for the board, and we've 9 adopted those, but they were regulations. 10 I will represent to you in spite of the fact 11 that some of the petition says here that I have engaged in 12 perhaps not full disclosure and underrepresentation, I will 13 represent to you that I have contacted the Legislative 14 Counsel Bureau, I have spoken to the lawyer with the 15 Legislative Counsel Bureau who has told me they don't think 16 they can do that. 17 And what the rationale is -- and I haven't 18 started to fight it yet -- maybe I will, I don't know -- the 19 rationale is that they are there to protect, which I don't 20 know about that, but the other part of the rationale is that 21 we are a voting member of the federation. We vote at the 22 very organizatons and we vote at the time. 23 I don't know that there's a record necessarily 24 that we voted on the model guidelines, but right in the -- 25 right in the lead-in thing of the model guidelines -- and Page 22 1 I'll represent to you that after my talk with Larry and the 2 talk with the LCB and reading it, I ordered two hundred of 3 these things just in case we wanted them from the federation, 4 they're free, as you well know. 5 As I think -- as I think you stated for the 6 medical association in this petition, says, "The 7 recommendations contained herein were adopted as policy by 8 the House of Delegates of the Federation of State Medical 9 Boards of the United States, Inc., May 1998." 10 I will represent to you that I was at that 11 meeting. I'll represent that I have been at several meetings 12 of the federation where these guidelines have been discussed. 13 I'm not a voting member of the federation, but the Nevada 14 State Board of Medical Examiners is. We are a dues-paying 15 fellow traveler and we vote. 16 Our president generally is elected by the -- or, 17 appointed by the board to be the voting member. But if the 18 president doesn't attend, someone else does, and I know that 19 he attends the House of Delegates, I know that he votes. 20 Now -- and I have spoken to someone from the 21 LCB, a lawyer I've worked with on some other regs that we 22 have promulgated, and she says you've asked me for my 23 opinion, Dick, and maybe this is unfair of me, but I'm going 24 to say it anyway, this is my opinion, Dick. You can't do it. 25 So I don't know that this also a possible way to Page 23 1 go. And I can represent to you that we are all on the same 2 page, we will stay on the same page. I'm satisfied that the 3 Nevada State Board of Medical Examiners will stay on the same 4 page, because what you, Doctor/Lawyer Havins have proposed in 5 my opinion almost throughout is really pretty good. It's 6 workable. 7 Some of the language that you've got in there is 8 your lawyer language. The LCB isn't going to accept it just 9 like that, they won't like the language. Generally the tone 10 and tone of what you suggest in your petition is going back 11 to hopefully getting some understanding that these are 12 simply -- although we can't call them guidelines because 13 we're promulgating law, I say that simply because I'm 14 representing to you that I don't know what our options are. 15 Section -- and maybe it'll more benefit Larry 16 and the association, what Dr. Havins is suggesting is 17 proposing some changes that I think I would recommend to the 18 board, maybe the way that we would go -- assuming the board 19 even wanted to keep them, which -- and I think they would, I 20 mean, that's my feeling, and Larry Matheis is nodding his 21 head yes. 22 And the whole reason -- you know, as a 23 prosecutor for the board, I don't need them. I've prosecuted 24 a bunch of doctors without the existence of that law, and 25 I've got a prescription case right here that Dr. Stewart's Page 24 1 going to call me on, he's going to review 50 charts, that's 2 all before the adoption of these regulations. This is -- 3 these are things to say if thou doest this, thou is 4 home-free. 5 And so I only make those comments simply because 6 I think it's -- this is open, and it's fair. And Larry's 7 called me on it, said, Dick, you said that. 8 And I said, no, Larry, I didn't say that. 9 Then I checked, and maybe we do have a problem. 10 I know that you checked because you make the representations 11 in here. 12 DR. HAVINS: Yes. 13 MR. LEGARZA: Or you don't, the presidents do. 14 DR. HAVINS: Yes. 15 MR. LEGARZA: So I just throw that out for you 16 guys to think about between now and tomorrow as well. 17 DR. HAVINS: The nice part about it is if the 18 board does adopt by reference, the Federation of State 19 Boards, the uniform treatment of patients with pain can go 20 across the various pain medication dispensing professions in 21 Nevada as well as other states, it will be uniformity of an 22 approach. 23 To this date, I don't know what happened to the 24 Nurses Practical Act Advisory Committee, but they were 25 considering these regulations. Page 25 1 MR. LEGARZA: They can't prescribe controlled 2 substances. 3 DR. HAVINS: No, they don't have that authority. 4 MR. LEGARZA: They don't have the authority to 5 provide controlled substance. They write prescriptions. 6 DR. HAVINS: I thought they did up to a certain 7 amount. 8 DR. MARX: PAs can write anything. APNs -- 9 MR. LEGARZA: PAs can write everything. I don't 10 believe that APNs have the ability to write controlled 11 substances. 12 DR. MARX: I believe you're right. 13 DR. DAVIS: I thought they did. 14 MR. LEGARZA: I don't believe so. Certain 15 osteopaths do. 16 DR. HAVINS: Sure. 17 MR. LEGARZA: And of course we had the president 18 there of their organization served on the task force with us. 19 They have not adopted them. 20 And one of the petitions says, well, a doctor 21 would be different. And, you know, I know doctors control 22 pain, but if there is some out there controlling chronic or 23 intractable pain, I'd like to know who they are. 24 DR. HAVINS: Well, you bring up an excellent 25 point with just that statement, is that the current Page 26 1 regulations require licensees to control any acute and 2 chronic -- 3 MR. LEGARZA: Yeah. 4 DR. HAVINS: And the wording there, it is -- I 5 think needs to be changed, because it -- 6 MR. LEGARZA: Could be misleading. 7 DR. HAVINS: -- flies in the face of reality. 8 MR. LEGARZA: Could be misleading, also. We 9 disagree on that as lawyers. 10 When I look at M and N, and then I say those are 11 necessary predicates to this other stuff. But you're right, 12 it needs cleaning up, you bet. 13 DR. HAVINS: So my -- to summarize, my 14 preference would be to adopt the Federation of State Medical 15 Boards model guidelines. If that is not possible, then, the 16 second petition at least is as good as I can modify them to 17 modify the current regulations to reflect a workable set of 18 regulations for practicing physicians. 19 MR. LEGARZA: I thank you. 20 DR. HAVINS: Thank you, sir. 21 MR. LEGARZA: Anyone else? 22 DR. MARX: Hi, yeah, I'm Dr. Jim Marx. I just 23 have -- I'm sorry, I have three letters from other 24 physicians -- 25 MR. LEGARZA: Okay. Page 27 1 DR. MARX: -- who would like to have their 2 letters placed in the record. 3 MR. LEGARZA: Okay. Would you give them to the 4 court reporter and then she will attach them with the 5 transcript. Let's start over again. 6 DR. MARX: I'm Dr. Jim Marx, M-a-r-x. I'm a 7 board certified pain specialist here, pain medicine 8 specialist in Las Vegas. I serve on the Public Affairs 9 Committee of the American Academy of Pain Medicine, although 10 I'm not appearing here in that capacity. I've practiced pain 11 medicine for over fifteen years, almost exclusively the last 12 ten or twelve years. 13 I have a lot of concerns about the regulations, 14 particularly Section 8. I feel that the petition of the -- 15 of the Nevada State Medical Association should be Nevada 16 state complied with in terms of adopting by reference or 17 incorporation the federation of state licensing boards model 18 guidelines. 19 I feel that -- I kind of take issue with 20 Mr. Lessly's comment that we should -- that you should do 21 what the board is comfortable with. 22 I feel that if you -- if the public policy be 23 that patients receive good pain treatment, that the only 24 regulation that's going to make any difference and allow that 25 to occur are going to be regulations that they -- that Page 28 1 practicing physicians are comfortable with. I don't see any 2 way that Section 8 can be amended or modified that anyone 3 that reads and understands will find reasonably easy to 4 comply with. 5 I think that the documentation requirements are 6 onerous. I do take issue with some of the other testimony 7 and -- previously presented that the informed consent 8 provision be difficult -- be -- is too difficult to comply 9 with. I have been able to comply with that very easily since 10 July of this year without any problem. 11 And I feel that in the information informed 12 consent is probably not a bad idea and possibly should be the 13 only thing retained out of this section of the administrative 14 code. I think that I'd be willing to supply my informed 15 consent form for modification for reference to the board if 16 they so choose. 17 But I feel that the rest of the requirements in 18 terms of documentation of diagnoses of addictions and 19 treatment protocols are far too onerous for any practical 20 physician to comply with. 21 I just recently am installed in an electronic 22 compliance system to comply with HCFA coding guidelines, and 23 I know that even those -- the requirements as outlined in 24 Section 8 would not even be complied with at the highest 25 level of HCFA compliance, documentation compliance, and is -- Page 29 1 that would require extremely long patient encounters, and 2 would severely curtail the flow of patients, and patient care 3 would suffer I think as a result of that. 4 What would happen is that the majority of the 5 physicians that are treating people with chronic pain find 6 themselves not treating it, and the public policy that was 7 dictated by this administrative code would be -- actually be 8 not applied and the patients who require treatment of their 9 pain would not receive that treatment because patients 10 wouldn't -- because the patients' doctors would not be able 11 to comply with the requirements and just, as a result, not -- 12 not deal with this issue whatsoever. 13 MR. LEGARZA: Can I interrupt you, Doctor? 14 When you talk about Section 8 and the problems 15 you have with Section 8, are you talking about -- and I 16 appreciate the fact that -- 17 DR. MARX: There are about ten items there that 18 have been complied with. 19 MR. LEGARZA: Are we talking about before 20 prescribing the controlled substance, or are we talking about 21 after prescribing the controlled substance? 22 Which is the way Section 8 is written; in other 23 words, Section 8 says -- disregarding for a moment the 24 possibility of cleanup of the lead-in language, "A physician 25 and a physician's assistant shall control any acute or Page 30 1 chronic pain of a patient for the duration of the pain by 2 prescribing controlled substances in accordance with." 3 And then "to comply with the prevailing 4 standards except in an emergency, before prescribing the 5 controlled substance a physician shall" -- and once again, 6 the problem is we're in regulatory language which may cause 7 the problem. 8 So the word -- there's not much discretion in 9 there, but "shall conduct an assessment and evaluation of the 10 patient that includes, without limitation, a physical 11 examination, investigation and documentation of the medical 12 history of the patient" -- assuming arguendo, "except in an 13 emergency" as a lead-in thing, which is what Dr. Havins has 14 proposed -- "investigation of whether the patient has a 15 history of substance abuse;" 16 That the physician before prescribing the 17 controlled substance should establish a plan for the 18 treatment of the patient, which includes objectives, a list 19 and timetable for diagnosis, an agreement that the patient 20 only obtain prescriptions from the one physician and fill 21 them at one place. 22 And the rationale behind that, as you well know, 23 is let's make sure we don't have secrets here, and then 24 discuss the risk and benefits and alternatives with the 25 patient or someone associated with the patient. And then, Page 31 1 after discussing them, receive written consent. 2 You don't have a problem with the -- 3 DR. MARX: I don't have any problem with the 4 written consent portion of that. I don't find it too 5 particularly onerous that to be complied with on a two-page 6 form. 7 MR. LEGARZA: Then if the patient is high risk, 8 then you look at Section 10 which talks about all of the 9 other things. And so before prescribing, and then there are 10 things after prescribing, such as reviewing the -- my 11 question is: You just don't like any of it, or you don't 12 like the before, or you don't like the after, or -- 13 DR. MARX: Whether it's before or after is 14 immaterial because it -- the physician is still required to 15 document this information. So whether it takes place before 16 or after the actual act is really immaterial to the actual 17 prescribing of the medication. 18 The fact is, it puts a -- it puts a burden of 19 duty on the physician to document far beyond the level of 20 documentation that is commonly accepted medical practice. 21 As a result of that, any detour from that 22 practice could potentially put the physician at risk for 23 either the board, a disgruntled patient, or patient's family. 24 And I think that that in itself would be a chilling -- would 25 have a chilling effect on the physicians prescribing of Page 32 1 controlled substances to control the pain. 2 It doesn't even address the issue that perhaps 3 this pain could be addressed by nonsteroidal medication, an 4 adjunctive medication prior to prescribing the controlled 5 medication. 6 I think that the impact of that being, is that 7 the medical board is trying to micro-manage the practice of 8 medicine. I think we all agree that the practice -- that the 9 treatment of hypertension, the treatment of diabetes all 10 warrant good medical care. 11 And I -- if you want -- if a board wants to 12 document and codify what proper treatment of high blood 13 pressure is, what the proper treatment of hyperemia, 14 hyperglycemia, diabetes is, I think the board could spend 15 virtually an unlimited amount of time documenting -- 16 requiring physicians to document a plan for each one of these 17 things, but the board realizes that this isn't realistic. 18 And I think similarly it's not realistic to 19 expect the same level of documentation -- the documentation 20 level that is required of this section is not practicable. I 21 think that it creates too many opportunities for litigation 22 both related to the practice, malpractice, and other legal 23 entanglements. 24 I think the -- I think the public policy here is 25 the patients with pain have adequate treatment and the Page 33 1 physicians feel free to treat that. The language on the -- 2 in the regulation should not be language which the board is 3 comfortable with. Many board members are laymembers and 4 don't have to treat pain problems. 5 The language should be that which is comfortable 6 with the practicing physician so that they're willing and 7 able and -- and feel unfettered in terms of their practice of 8 medicine, and we should encourage that practice. 9 We don't want to have patients turned away or go 10 to doctors who, you know -- even the referral of this 11 patient, if a patient has to be referred by a primary care 12 physician, that could -- that could potentially delay or 13 potentially even prevent the patient from ever receiving 14 appropriate pain treatment. 15 So I think the regulation should be such that 16 the physician is comfortable for prescribing controlled 17 substances or whatever is appropriate, and that by 18 reference -- by adopting by reference or even incorporation 19 of the federation guidelines, physicians are going to be 20 comfortable with that language, and indeed that's why that 21 language was constructed in that form. 22 What we have here is a -- is a horse designed by 23 a committee that comes out of a camel. I mean, this 24 regulation does not do anything that it intends to do. And I 25 believe that if the board had adequately notified practicing Page 34 1 physicians of this regulation, that the prescribing of 2 controlled substances would have been drastically hampered. 3 Fortunately it hasn't been promoted, and 4 consequently, I don't think the -- I sit on the controlled 5 substance task force, I know it really hasn't had an impact 6 on the number of prescriptions written for controlled 7 substances. But if this were public knowledge with 8 physicians, it certainly would have had -- would have been. 9 I think in summary that we should -- the board 10 should seek to simplify the prescription of controlled 11 substances rather than to make it more difficult. 12 I -- again, I would go on record as not being 13 opposed to the requirement for informed consent and written 14 informed consent. I don't believe that -- I don't think that 15 imposes an undue burden upon either the patient or the 16 physician, and I think that provision should probably be 17 retained in some form. 18 I'm a little puzzled by why so many pain 19 practitioners have been upset about the provision for 20 informed consent, especially since I've adopted it. I've 21 actually taken their informed consent forms and modified them 22 and expanded them. 23 So, I mean, I'm surprised that they are so -- 24 unless they just don't use these forms, I'm not sure why they 25 would be so offended. I don't feel these forms would be an Page 35 1 imposing burden upon even primary care physicians. 2 I think that the other impact that the 3 Legislative Counsel Bureau hasn't taken into effect is the 4 economic burden. And that is if this level of documentation 5 was required, there would be tremendous economic burden. In 6 some cases with managed care, some of this economic burden 7 would not be borne by the insurance company or perhaps be 8 denied in terms of level of care that's required from the 9 physician. 10 So I think that has -- that also is a chilling 11 factor in this regulation. But I don't really have any 12 further comments unless you have questions. 13 MR. LEGARZA: What would your position be if we 14 weren't -- we, the board, wasn't allowed to adopt by 15 reference the federation model guidelines, which are -- would 16 your preference be to completely go back to where we were 17 before the board adopted anything with respect to this pain 18 management stuff in all -- in this entire thing? 19 Just go back to the old law? I don't know that 20 I brought it with me. 21 DR. CROSS: I have it. 22 MR. LEGARZA: Before the changes. 23 DR. CROSS: Is it the one in here? 24 MR. LEGARZA: Maybe so, yeah. Can I look at 25 that? This is -- Page 36 1 DR. CROSS: It's on the page that's marked. 2 DR. MARX: While you're looking, I can address 3 another question. 4 If the board can't accept the reference by 5 incorporation, it can accept the incorporation by reference. 6 Why not just incorporate -- why not just plagiarize and take 7 the wording in the statute as it exists and then pass it as a 8 motion of the medical board without referencing it as a work 9 product of another entity? 10 DR. HAVINS: You mean the model guidelines? 11 DR. MARX: The model guidelines, exactly. 12 DR. HAVINS: And adopt them as regulations of 13 the board? 14 MR. LEGARZA: We took out old C, which was, "A 15 physician shall not." 16 Under Prohibited Professional Conduct, "A 17 physician shall not engage in the practice of writing 18 prescriptions for controlled substances in such excessive 19 amounts as to constitute a departure from prevailing 20 standards of acceptable medical practice." 21 That's the old law. We took that out. We also 22 took out, "Physicians shall not write a prescription for 23 controlled substance for any person without an appropriate 24 examination which confirms the medical necessity for the 25 controlled substance," because we now have it in Section 8. Page 37 1 So that existed. So -- 2 DR. MARX: Well -- 3 MR. LEGARZA: Believe me, if we do away with 4 what we got, we're going back to where we were. 5 DR. MARX: I don't have any problem with where 6 we were. As a matter of fact, I'm well-aware of the 7 intention of the first provision being struck was that we -- 8 at one point there was some discussion as to what was an 9 excessive quantity. 10 And, I mean, Keith McDonald at the Board of 11 Pharmacy and I discussed this at length several times as to 12 what excessive quantities were. And we came to the 13 conclusion that it's almost impossible to determine what 14 excessive quantities are on a blanket basis, although in an 15 individual case, it might be possible to determine that. 16 And that's why that language became so difficult 17 to interpret, and that's why it was struck. But as far as a 18 good faith examination, which I believe is what California 19 has in their statutes, I think that -- I think that is not a 20 problem. And I think that in fact is what the board really 21 is seeking. 22 MR. LEGARZA: And we have new M and N, which is 23 under the thou shalt nots, which are "failure to adequately 24 prescribe controlled substances." 25 Would you like to see that done away with? Page 38 1 DR. MARX: I would. 2 MR. LEGARZA: So your choices would be if you 3 can't adopt the federation guidelines by reference, go back 4 to where you were before you adopted any of this and leave it 5 alone. 6 DR. MARX: Exactly. 7 MR. LEGARZA: All right, sir. 8 DR. MARX: I wouldn't have a problem with that. 9 MR. LEGARZA: All right, sir. Thank you very 10 much. 11 DR. MARX: Thank you, sir. 12 DR. DAVIS: I'm Corinne Davis, M.D., and I'm a 13 pain specialist -- 14 MR. LEGARZA: Is it D-a-v-i-s? 15 DR. DAVIS: D-a-v-i-s. 16 MR. LEGARZA: Thank you, ma'am. 17 DR. DAVIS: And I'm triple boarded in physical 18 medicine and rehabilitation, pain medicine by the American 19 Academy of Pain Medicine, and electrodiagnostic medicine. 20 I'm a sole practitioner in Las Vegas, Nevada, and I -- my 21 practice is almost a hundred percent pain management, pain 22 medicine. 23 I think Mr. Matheis expressed my views far more 24 eloquently than I could, but I would like to add the 25 perspective of a solo practitioner who's out there in the Page 39 1 trenches. 2 And as a physician, I've made a decision to err 3 on the side of mercy, to err on the side of compassion for 4 these patients, and believe in the patient until proven 5 otherwise, realizing that I would be duped periodically by 6 the types of patients that we deal with on a daily basis. 7 I believe that in doing so that I can help the 8 greatest number of people. Rather than undertreating them, I 9 may overtreat the wrong person and learn that in the process 10 and have to modify my behavior, so to speak. 11 I was very encouraged by legislation that was 12 encouraging doctors to treat intractable pain and there would 13 be consequences if they did not do so, but the language that 14 we should not deviate from prevailing standards of acceptable 15 practice of medicine is of concern to me. 16 And my impression is that in this community, the 17 pain is by and large undertreated, and if that's the 18 prevailing standards, we're in trouble, because we need to 19 treat more aggressively these intractable pain problems that 20 we're dealing with. 21 So that's one of my biggest concerns is that I 22 not be punished for erring on the side of mercy but rather 23 that -- or, other doctors as well, but that they -- I would 24 prefer that they be punished for undertreating the patient's 25 problems and going the other direction. Page 40 1 But I feel like I'm caught in between. Now I've 2 gotten the license to go ahead and treat pain aggressively, 3 which I have done, many of us are pushing the envelope, but 4 at the same time, I can get caught by somebody coming at me 5 saying this is not in keeping with the prevailing standards 6 in the community. 7 I can tell you I've been at three national 8 meetings in the last several months, and that I've been in 9 meetings, as has Dr. Marx, where doctors and pain specialists 10 are yelling out, what's your highest level of medication, and 11 they're talking about a thousand milligrams of morphine, 12 thousand milligrams of methadone, seven micrograms per hour 13 of fentanyl, extremely high levels which are not acceptable 14 in Nevada, but nationally in various pain clinics, are being 15 used fairly routinely. 16 Some of those patients are intractable cancer 17 patients, but I maintain that chronic pain hurts just as much 18 as cancer does although the suffering isn't as great because 19 of the terminal prognosis. 20 I'm not opposed to informed consent. I have 21 informed consents that have been modified by -- that's been 22 modified by me and it was prior by Dr. Skip Parker, and I 23 think that's a good idea. 24 But I have two different offices, and in one, I 25 treat primarily chronic pain patients whose pain has Page 41 1 persisted beyond three months, six months beyond tissue 2 healing. And in the other clinic these are acutely injured 3 patients, and I tend less to be less aggressive about getting 4 the informed consent when it's acute pain and that I expect 5 that they will not need that medication in several weeks. 6 But I don't think it's absolutely onerous to 7 have to use an formed consent. I like the idea because my 8 informed consents are very educational for the patients, so 9 they understand what the law is and what the ramifications of 10 the medications are that they are taking. So it serves a 11 purpose, serves a useful purpose. 12 And that's about it. 13 MR. LEGARZA: May I ask you a couple of 14 questions? 15 DR. DAVIS: Sure. 16 MR. LEGARZA: You're familiar with the 17 federation model guidelines? 18 DR. DAVIS: I am actually not, I'm sorry. 19 MR. LEGARZA: Let me give you one. 20 You're familiar with the regulations the Nevada 21 State Board of Medical Examiners has adopted? 22 DR. DAVIS: Yes. 23 MR. LEGARZA: Do you have a recommendation to 24 the board as to what the board should do with respect to 25 these regulations, assuming you want to be -- want to make -- Page 42 1 I mean, you've heard what Mr. Matheis has said, you've heard 2 what Dr. Havins and Dr. Marx have said. 3 DR. DAVIS: Yes. 4 MR. LEGARZA: Do you have any -- in other words, 5 you've heard micro-manage from Dr. Marx. 6 DR. DAVIS: Yes. 7 MR. LEGARZA: Do you think that the -- do you 8 understand what the board tried to do, what the board's 9 trying to do, and what the task force tried to do, do you 10 have an opinion if the board should get completely out of the 11 picture, should it be in partially, should we do away with 12 all of these regulations, part of them? 13 Can you live with any of them? None of them? 14 Have you given it that much thought, Doctor? 15 DR. DAVIS: I -- well, I will go so far as 16 Dr. Marx did, although I understand how he feels about being 17 micro-managed, that the fear component of doctors who are 18 really trying to do something good with our lives and really 19 trying to help people -- I have so many people who are 20 suicidal, who would kill themself if I didn't do what I was 21 doing, who sincerely would go to Dr. Kevorkian in a minute, 22 and one has. 23 MR. LEGARZA: And let me ask you this. 24 DR. DAVIS: So -- 25 MR. LEGARZA: If an investigator from the Nevada Page 43 1 State Board of Medical Examiners came to your office and 2 looked at that patient's chart, they'd find everything 3 probably that's in these regulations, wouldn't they? 4 DR. DAVIS: I'm a pretty good documenter. I am 5 a pretty good documenter, I admit, especially on H and Ps 6 coming in. But they don't always disclose full information. 7 I ask for a history of drug problems, any 8 history of drug rehab. Those questions are asked, but that 9 doesn't mean I always have an honest answer. 10 MR. LEGARZA: And who have you been to, what 11 have they done to you, where are your old medical records? 12 DR. DAVIS: Those are all -- 13 MR. LEGARZA: It's all -- 14 DR. DAVIS: But I don't always have an old 15 medical record to go by. And most doctors think it's a nice 16 idea, but it doesn't always happen that way. 17 And so I end up, you know, doing some studies 18 myself and make sure I've got x-rays and lab. 19 MR. LEGARZA: What do you say about the one 20 physician, one pharmacy part of the regulation? 21 DR. DAVIS: You know, I'll tell you what, since 22 you asked me, I have a real problem with the pharmacies in 23 this town, extreme problems with the pharmacies. And I -- 24 MR. LEGARZA: Second-guessing you? 25 DR. DAVIS: No, it's -- that, that's not -- Page 44 1 that's just the beginning of it. But I have -- I do my level 2 best to document everything, I copy every script I write so 3 that I've got control of every script. 4 And I have patients coming into the office and 5 showing me their three-week prescription for Xanax. No, I 6 don't write for Xanax. That's not possible. They've got the 7 bottles. They make many, many mistakes. 8 I write for fifty micrograms of fentanyl, they 9 come back with seventy-five. I mean, it is very common. I 10 have a doctor friend who knows I've been upset because they 11 are shortchanging patients routinely. 12 I don't know where the pills are going, but I 13 think there's a business out there because it's so common, 14 and I can't track down if it's this pharmacy or this 15 pharmacist, because it's rampant. 16 I've had doctors who I've prescribed for, one 17 had a herninated disk, one had a gall bladder out, and 18 knowing that I was upset, they counted pills. They were 19 shortchanged 20 tablets. So I can write the right amount, 20 but the patient doesn't necessarily receive that. 21 I have many patients coming in and they say, 22 well, the pharmacy only had sixty, they didn't have 120, so I 23 need another prescription for sixty. And the pharmacist -- I 24 mean, I can't keep track of it as much as I try to document 25 and do things, and see them on a regular basis, it's a -- Page 45 1 it's a serious challenge. 2 I don't know if you're having that kind of 3 problem or not. 4 DR. MARX: Yes. 5 DR. DAVIS: Yes. 6 DR. MARX: I would say the problem is -- for one 7 thing, the one doctor/one pharmacy -- the one doctor isn't as 8 much of a problem as the one pharmacy. 9 And the problem is that many of the chronic pain 10 medications are extremely expensive, the pharmacies are 11 extremely reluctant to put in any excess inventory. A bottle 12 of a thousand -- well, 150, I don't know, do they come in a 13 thousand? 14 A bottle of a hundred, say, OxyContin forties is 15 $300, the sixties or eighties are I think over 450, $500, and 16 the pharmacies don't want these to be on their shelf just 17 sitting there. 18 Conse -- and the federal regulations don't allow 19 them to fill a prescription like that fractionally, which 20 means that if they only have sixty of a hundred, then they 21 can fill the sixty, but the patient can't come back in three 22 or five days and get the other forty. 23 So, what happens is, the patients will go to one 24 pharmacy, they'll find out that, oh, I've only got sixty, but 25 if you go to the -- particularly the chain pharmacies, they Page 46 1 can go to one Wal-Mart or one Walgreens, they can find out 2 who has it, so these patients are constantly running all 3 around town filling these prescriptions. 4 The option is for them to go to one or two -- 5 well, actually, there's only one pharmacy in Las Vegas that 6 always has all the opioids, just -- 7 DR. DAVIS: Is that Lamb's? 8 DR. MARX: Lamb's. And as a result, Lamb's is 9 under a lot of scrutiny from the Board of Pharmacy. They're 10 always talking about it, but they actually don't have -- 11 there's really not a problem with Lamb's, it's just that 12 they're the only pharmacy that consistently stocks an 13 incredible amount of these very expensive medications. 14 So unless they go to Lamb's pharmacy, or, I 15 think Village East had -- well, no, that's not true. Lamb's 16 is the only one that really has -- can virtually fill any 17 prescription. 18 And if someone lives in Henderson or perhaps in 19 the very northwest part of town, they're not going to go to 20 someplace that's right by UMC, so they end up running to two 21 and three pharmacies sometimes -- maybe not in the same 22 month, but they go to one pharmacy one month and another 23 pharmacy the next month, and another in the third month. 24 So I think that that again is an element of 25 micro-management that shouldn't be there. Page 47 1 DR. DAVIS: It is a problem, though. But the 2 other thing is the managed care. You know, there's certain 3 lists, they've got to go to a pharmacist on the list. That 4 makes it a further problem. 5 On a different subject, I'm concerned that 6 patients are treated very badly by many, many pharmacists in 7 this town and many pharmacies. You stand in line with twenty 8 people in line, you've got a pharmacist saying, what's your 9 diagnosis anyway? Does your doctor know what's she's doing? 10 I'm triple boarded. And they're standing in 11 front of people, and they're embarrassed. 12 MR. LEGARZA: I hear that all the time. 13 DR. DAVIS: It's very upsetting. 14 DR. MARX: I mean -- 15 DR. DAVIS: It's very embarrassing. 16 DR. MARX: -- how'd you like to stand there and 17 hear, "Dr. Marx, your" -- 18 DR. DAVIS: It's confidential material. 19 MR. LEGARZA: Only one person can talk at a 20 time. 21 I have an observation. 22 Dr. Havins, of course, has proposed in his 23 petition, petitions, to do away with this thing. But it is 24 in the model guidelines, as you know. 25 DR. HAVINS: It's suggested, whenever possible. Page 48 1 MR. LEGARZA: Right. 2 DR. HAVINS: But it's not a shell. 3 MR. LEGARZA: I understand. See, and that's the 4 problem with regulations and the problem with model 5 guidelines, and then we get back into that, I appreciate 6 that. 7 But am I hearing from you, and I'm also hearing 8 from you, Dr. Marx, that your preference would be that the -- 9 that the one pharmacy thing just go away, it's just not 10 real world? 11 DR. MARX: I would say they should be continued, 12 but it should be suggested or the patient should be 13 encouraged to use one pharmacy. 14 MR. LEGARZA: Should the medical records 15 document that fact? How do you follow it up? 16 DR. MARX: It's in my informed consent. 17 MR. LEGARZA: Okay. But I mean -- and how are 18 you able to follow it up? 19 DR. MARX: I pull profiles on people. 20 MR. LEGARZA: Right. Okay. And you call the 21 pharmacy board and get those? 22 DR. MARX: Uh-huh. 23 MR. LEGARZA: You're aware that that's 24 available? 25 DR. DAVIS: Yes. Page 49 1 MR. LEGARZA: So if you -- if you think you have 2 a drug seeker, you can get the profile. Pharmacy board keeps 3 you informed as well if they see something. 4 Have you ever received any information from 5 them? 6 DR. MARX: I'm really not at liberty to -- 7 MR. LEGARZA: Okay. 8 DR. MARX: -- divulge how that happens. 9 But if a patient receives a -- it meets a 10 certain criteria, the task force will send unsolicited a 11 profile. But there -- the actual criteria are very high 12 before that happens as you're probably well-aware. 13 MR. LEGARZA: Our chief investigator serves on 14 it. 15 DR. MARX: Okay. 16 MR. LEGARZA: Okay. Thank you, Doctor. 17 DR. DAVIS: Thank you. 18 DR. CROSS: I'm Dr. Karen Cross with the Nathan 19 Adelson Hospice, I am board certified in hospice and 20 palliative medicine, I serve on the American Academy of 21 Hospice and Palliative Medicine. 22 I come here today with a very small agenda. I 23 wasn't even aware of -- I went to the meeting in Reno about 24 should we adopt this, but then I lost track of what was 25 adopted, and it wasn't until I called Larry with a specific Page 50 1 question, he told me about this meeting, so I'm not 2 well-versed in which codes and things like that. 3 My question from a hospice perspective is the 4 vast majority of our patients are homebound. The length of 5 stay on hospice programs is diminishing, meaning, the time 6 from -- the period of time from when someone is signed on 7 hospice and they die is getting shorter, so these are people 8 the vast majority of times who are bed-bound typically in 9 their final days. 10 As medical director, I have been asked from the 11 pharmacy to write schedule two -- schedule two prescriptions 12 is what made me uncomfortable, but all schedule drugs. 13 When a patient, for example, is signed onto the 14 program at say 5:30 in the evening, the physician office or 15 the hospital case manager will call in referral at 10:00 in 16 the morning, the admissions office will then call and set up 17 an appointment, and the admissions nurse will not get out to 18 the house let's say till four o'clock in the afternoon. 19 They will then sign them onto the program, 20 complete all the paperwork, do the physical assessment, and 21 then will call Dr. Smith, for example, and say, we've signed 22 your patient onto the program, they need a prescription for 23 Roxanol. 24 Well, nine times out of ten, Dr. Smith is not on 25 call, there is another physician who's covering for that Page 51 1 person who says, I don't know this patient, I'm not 2 prescribing morphine, have your medical director do it. 3 So that's what I've been doing. However, as our 4 census is growing, this is happening more and more. And I 5 got a copy of the book where it specifically says before 6 writing a controlled substance, you will do a history and 7 physical. 8 Now, obviously, I can't run out and see every 9 one of these patients, but the option is to then let them be 10 in pain, sometimes certainly for that evening, which I as a 11 hospice professional think is unacceptable, but sometimes 12 Dr. Smith is on vacation for maybe two weeks and the covering 13 physician doesn't feel comfortable, so this could be maybe 14 one night, it could be two or three days that a patient at 15 the very end of their life is in pain. 16 So mine is a very, very small patient 17 population. This is both malignant pain and non-malignant 18 pain. 19 As far as you asked, suggestions, I'm not real 20 sure what -- I certainly like your idea of the emergency 21 provision, because I consider a phone call at 5:00 in the 22 afternoon for someone who's in excruciating pain an 23 emergency. 24 MR. LEGARZA: Well, Doctor, you're also caught 25 between two of our new regs, thou shalt not underprescribe Page 52 1 and thou shalt not overprescribe. 2 DR. CROSS: I have no problem with -- I mean, I 3 personally feel that there should be disciplinary actions for 4 physicians who underprescribe. 5 MR. LEGARZA: You've said that before. 6 DR. CROSS: I was thrilled about the -- 7 MR. LEGARZA: And that's there. But now if 8 you're put in that position where you can't conduct a 9 physical examination before you prescribe for this person who 10 has this final pain -- 11 DR. CROSS: Uh-huh. I don't -- I feel very 12 confident that I prescribe appropriatly even without doing a 13 history and physical on the patient because all of these 14 patients have been seen by our admissions nurses. 15 We have a team of admissions nurses who I work 16 very closely with, I'm involved in their training, in their 17 ongoing education, and I feel very comfortable hearing what, 18 as we say in the home health world, the case -- the nurse is 19 the physician's eyes and ears. It allows ongoing treatment 20 for people who are bed-bound. 21 But even with the old regulations, I'm not doing 22 a complete history and physical on these people that I am 23 signing, but yet on the other hand, like you said, your mercy 24 and compassion for these people, you don't want their final 25 week of life to be in pain. Page 53 1 MR. LEGARZA: And, of course, you don't have in 2 your situation necessarily the dangers and problems that 3 Dr. Marx and Dr. Davis have, of do I really have a pain 4 patient here, or do I have a drug seeker here. 5 DR. CROSS: Right, exactly. 6 MR. LEGARZA: It's pretty clear in your 7 situation what you're dealing with. 8 DR. CROSS: And we also -- we don't have the 9 problem with the multiple pharmacies, because the vast 10 majority of our patients are Medicare patients, and we as a 11 hospice supply the medicine, so they come from our contracted 12 pharmacy. 13 So we're not concerned about them taking 14 prescriptions -- and you can do partial fills. The Nevada 15 State Board of Pharmacy has made exceptions to schedule two 16 drugs for terminally ill patients, which by definition our 17 hospice patients are, we can do partial fills. 18 Because in a way, that protects the pharmacy, 19 they don't want to send out thirty days of pills when the 20 patient's only going to live for a week, because you don't 21 want those medicines in the home, it's a tremendous waste of 22 resources because they're so expensive. 23 So on terminal ill patients, you can do partial 24 fills and you can -- the pharmacy can fill a schedule two 25 drug with a fax. It does not have to be the hard copy, and Page 54 1 you can do this over the phone as long as the fax or hard 2 copy is received in the pharmacy within, I believe, seven 3 days. So the Nevada State Board of Pharmacy has made 4 exceptions for terminally ill patients. 5 And when I first called Larry, he said perhaps 6 the board could make similar exceptions for terminally ill 7 patients, which being in a hospice program, by definition 8 they're terminally ill. 9 MR. LEGARZA: I don't see how anybody could 10 disagree with you. 11 MR. MATHEIS: Just for the record, Larry 12 Matheis, the issue that Dr. Cross has raised is a difficult 13 one. It's not clear if it's -- where it's best addressed or 14 how it's best addressed. 15 And I did suggest that she put this on the 16 record and that we will be following up. Whether this -- I 17 don't think this is appropriate in this particular regulatory 18 context necessarily, whether it should be looked at by the 19 Board of Medical Examiners, by the Board of Pharmacy, 20 possibly the Board of Health which licenses hospice is a 21 question, and we will begin exploring it. 22 I did want to note for the record that there is 23 this current glitch in the system that is a Catch 22 for the 24 physician and for the -- for the nurse and for the patient. 25 In fact, it undermines the hospice setting which Page 55 1 is certainly not something we want to do. But it is probably 2 a tangential issue and not a direct issue that could be 3 addressed in these , I mean, and Dr. Havins 12 and I have talked about it on the telephone, where, you know, 13 there's a lot of people out there that aren't in the pain 14 management business that don't do this on a regular basis 15 that are really going to probably have problems with these 16 and do have problems with these. 17 The pain people, although there are 18 disagreements with them, they don't necessarily have those 19 problems, so the regulator looks across the board. 20 Regulations and laws are always there for the bad guy. 21 DR. CROSS: So, I don't know, I just -- you 22 know, on the record, I do have a concern from the hospice end 23 of things. But I think your addition of except in an 24 emergency would give me -- was that none of the above in an 25 emergency, or -- Page 56 1 DR. HAVINS: I believe the second petition says, 2 except in an emergency before prescribing controlled 3 substances, and then there are eight factors that are 4 required. 5 You would nonetheless have to have, according to 6 the second petition, an appropriate history and physical in 7 the medical records. 8 DR. CROSS: Well -- 9 DR. HAVINS: But not necessarily before 10 prescribing if it were an emergency. 11 DR. CROSS: Well, the other thing that we're 12 doing at Nathan Adelson is doing home visits, but it just 13 can't always be done immediately. 14 So I would support the exception of except in an 15 emergency, I would feel comfortable. And I know speaking 16 with the hospice of San Diego, their policy is if they write 17 a schedule two prescription, the patient will be seen by one 18 of their fifteen medical directors within seventy-two hours. 19 They have fifteen medical directors, so I would feel 20 comfortable. 21 MR. LEGARZA: You know, we have some language 22 that's applicable to the PAs, and I've been playing with this 1 NEVADA STATE BOARD OF MEDICAL EXAMINERS 2 STATE OF NEVADA 3 ---oOo--- 4 5 6 7 8 9 10 11 12 TRANSCRIPT OF PROCEEDINGS 13 WORKSHOP 14 January 20, 2000 15 Las Vegas, Nevada 16 17 18 19 20 21 22 23 Reported by: Karen Bryson Certified Court Reporter #120 Page 1 1 APPEARANCES 2 3 4 RICHARD J. LEGARZA Attorney at Law 5 STATE BOARD OF MEDICAL EXAMINERS 1105 Terminal Way #301 6 Reno, Nevada 7 8 LAWRENCE P. MATHEIS WELDON E. HAVINS, M.D. 9 JAMES G. MARX, M.D. CORINNE DAVIS, M.D. 10 KAREN L. CROSS, M.D. 11 Page 2 1 LAS VEGAS, NEVADA, THURSDAY, JANUARY 20, 2000, 1:30 P.M. 2 ---oOo--- 3 4 MR. LEGARZA: Apologize for running a little 5 late, our airplane didn't leave Reno till -- supposed to be 6 10:25, and evidently the plan we were supposed to be on hit a 7 bird in Portland, so they had to send for another plane from 8 Portland. So we're running a little bit late. 9 At any rate, we are here, I would like for 10 purposes of the record to state that this is the time and 11 place pursuant to notice for the having workshops on to 12 select comments on a petition requesting amendment of 13 regulations of the Nevada State Board of Medical Examiners. 14 The board received a petition requesting 15 amendment of the regulation to pain management that were 16 adopted effective September 27, 1999, LCB R007-99, and we've 17 set up two workshops, one for today, we are in Room 4412E of 18 the Sawyer State Office Building, 555 East Washington Avenue, 19 Las Vegas, Nevada. 20 We were supposed to start at 1:30, it's about 21 1:35, for purposes of taking presentations with respect to 22 anyone who is interested or may be interested in telling the 23 Nevada State Board of Medical Examiners their position and/or 24 positions with respect to the pain management regulations 25 that the board adopted effective September 27, 1999. Page 3 1 For purposes of the official and formal notice 2 that went out, included in the notice were the proposed 3 amendments that were presented to the board by Dr. Havins, 4 Weldon E. Havins, at the last board meeting in Las Vegas, 5 Nevada. 6 And so the language that is in the notice of the 7 workshop is language that I at least attempted to copy 8 work-for-word out of Dr. Havins' petition to the board for 9 consideration of the amendment of the regulations that the 10 board adopted. 11 This is not the time and place for the board to 12 adopt regulations or for that matter to change regulations. 13 This is simply a workshop to allow people to give their input 14 with respect to what changes should be made to these 15 particular regulations. 16 And the record here will be prepared by the 17 court reporter, and the record will be delivered to the 18 Nevada State Board of Medical Examiners and will be in their 19 packet for their next board meeting to make a determination 20 as to what, if any, amendments to the regulation they may 21 deem appropriate at that time. 22 And then if they deem amendments appropriate, I 23 would assume that they would instruct me to prepare those, 24 and then once again have -- conduct workshops and set them up 25 for another board meeting for adoption.