1 1 NEVADA STATE BOARD OF MEDICAL EXAMINERS 2 3 --oOo-- 4 5 6 7 8 9 10 11 12 TRANSCRIPT OF PROCEEDINGS 13 Workshop 14 January 21st, 2000 15 Reno, Nevada 16 17 18 19 20 21 22 23 24 25 REPORTED BY: STEPHANIE KOETTING, CCR #207, RPR Computer-Aided Transcription DISCOVERY REPORTING (775) 329-3500 2 1 APPEARANCES: 2 For the Medical Board: RICHARD LEGARZA, ESQ. 3 General Counsel 1105 Terminal Way 4 Reno, Nevada 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DISCOVERY REPORTING (775) 329-3500 3 1 I N D E X 2 Page 3 ATTACHMENTS: To Nevada State Board of Medical Examiners 4 From Mitchel Miller, MD 5 January 17, 2000 letter to Nevada State Board of Medical Examiners from Jesse Wells 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DISCOVERY REPORTING (775) 329-3500 4 1 At Reno, Nevada, Friday, January 21st, 2000, 11:00 a.m. --oOo-- 2 3 MR. LEGARZA: The time is 11:00 a.m.. The date 4 is January 21. The year is 2000. We are at the office of 5 the Nevada State Board of Medical Examiners at 1105 6 Terminal Way, suite 301, Reno, Nevada. 7 We are here pursuant to a notice of workshops to 8 solicit comments on a petition requesting amendment of 9 regulations of the Nevada State Board of Medical Examiners, 10 specifically. The Nevada State Board of Medical Examiners 11 at the time the notice went out had received a petition 12 requesting an amendment of its regulation of pain 13 management adopted September 22nd, 1999, Legislative 14 Counsel Bureau file number R007-7-9, pertaining to Chapter 15 630 of the Nevada Administrative Code. The petition that 16 was received at that time and the proposed changes to the 17 regulation that are set out in the notice of the workshop 18 is a petition filed with the board by Weldon E. Havins, MD, 19 JD, Nevada State Board Medical Licensee number 2867. 20 Since that time, the Nevada State Board of 21 Medical Examiners has received another petition from Weldon 22 E. Havins, MD, JD, proposing amendments to the Nevada 23 Administrative Code NAC sections -- Chapter 630. And in 24 the second petition of Dr. Havins, there are some minor 25 differences from his original petition, some small language DISCOVERY REPORTING (775) 329-3500 5 1 changes. And the major difference is that in this newer 2 petition, he has made reference to the NAC numbers as given 3 to the sections of the original codification when the 4 Legislative Counsel Bureau actually gave them the numbers 5 rather than just the section designations. 6 The Nevada State Board of Medical Examiners also 7 has received -- excuse me -- a petition from the Nevada 8 State Medical Association from its President Mitchell 9 Miller, MD, and President Elect, Marietta Nelson, MD. It's 10 not dated, but the Board received it either the first part 11 of this week or the latter part of last week. 12 And I notice that there is a -- looks like a 13 facsimile transmission from I think Dr. Miller probably to 14 Dr. Havins -- of Dr. Miller's signature on the signature 15 page of the document and I think the date of that is 16 September the 9th. So we would have received it sometime 17 shortly thereafter, I believe. 18 In this petition, the request is for the Nevada 19 State Board of Medical Examiners to revoke all the 20 regulations it has adopted with respect to this area, not 21 put in anything that the Board did away with in trying to 22 make these changes to the regulations and adopt by 23 reference the model guidelines of the Federation of State 24 Medical Boards of the United States of America. 25 There are certain citations to authority and DISCOVERY REPORTING (775) 329-3500 6 1 comments made with respect to context of the LCB in this 2 petition. 3 The record should further reflect that a workshop 4 was conducted yesterday in the afternoon. We started at 5 about 1:35 p.m. at the Sawyer State Office Building, 555 6 East Washington Avenue, room 4412, Las Vegas, Nevada and 7 that was attended by Mr. Larry Matheis, Executive Director 8 of the Nevada State Medical Association; Dr. Havins; Dr. 9 Parks; Dr. Davis, and what's the doctor's name from the 10 hospice? Starts with a C. I didn't get her card. 11 MR. MATHEIS: Karen Cross. 12 THE COURT: Karen Cross, exactly. And discussion 13 was had and representations were made and what have you and 14 requests were made of the Board and a transcript of record 15 of those -- of yesterday's meeting was made by a court 16 reporter. 17 At that time, also, I think that -- I didn't look 18 at them, because they were given to the court reporter, but 19 there were letters from Dr. Parker and representation from 20 Dr. Havins that one of the letters he had was from Dr. Kim 21 and I think he gave us a total of three and I don't know 22 who the other one was from. 23 The record should reflect that we have received 24 today a letter from a medical student, whose name is Jesse 25 Adam Wells, President of the Class of 2002 and who states DISCOVERY REPORTING (775) 329-3500 7 1 it has come to his attention through the Nevada State 2 Medical Association that significant discrepancies exist 3 between the Nevada Board of Medical Examiners intent to 4 adopt the Federation of State Medical Boards guidelines for 5 use of controlled substance and the language contained in 6 section 630. And this person urges us to take steps to 7 ensure the codified pain treatment mandates are consistent 8 with the model guidelines. And this person is, like I 9 said, the president of class of 2002. So what this is is a 10 second-year medical student at the University of Nevada. 11 I'll give that to the court reporter to include in the 12 record. 13 Those of you that are here today to speak on this 14 matter, we'll be here as long as it takes to finish it, 15 whatever that may take. You may choose in what order you 16 wish to speak. I would request of you that you identify 17 yourself, spell your last name for the court reporter, so 18 she can get that correct and indicate who you represent. 19 If you represent yourself, fine. If you represent an 20 organization or an entity or a group of people, so indicate 21 and we'll proceed. 22 So I'll open the floor to whomever cares to speak 23 first. 24 MR. MATHEIS: I think probably I will. I'm Larry 25 Matheis, M-a-t-h-e-i-s, Executive Director of the Nevada DISCOVERY REPORTING (775) 329-3500 8 1 State Medical Association. 2 I'd indicated at the Las Vegas hearing that I 3 might want to supplement my comments today. On review, 4 because of the extensive nature of the workshop, I really 5 don't have much to add. But I think for context, for 6 today's workshop and for the others who are here, I would 7 like to summarize just the major points of our 8 recommendations to the Board. 9 The problem, again, is that after the Board 10 concluded its process, including the task force, which 11 reviewed the issues associated with adopting regulations to 12 deal with issues of pain management resulting from the 1995 13 change of the statute, which indicated that physicians 14 would not be sanctioned for appropriately treating 15 intractable pain. 16 The Board appointed a task force, which Nevada 17 State Medical Association was a member. That basically 18 accepted the new national model guidelines for the use of 19 controlled substances for the treatment of pain, which had 20 just been completed at that time by the Federation of State 21 Medical Boards of the U.S.. 22 That in converting the guidelines, which are 23 national consensus guidelines, into regulatory language, 24 there are difficulties. However, a version was adopted in 25 March of 1999 by the Board. Those were sent to every DISCOVERY REPORTING (775) 329-3500 9 1 licensed physician in the state through the Board's 2 newsletter and were ready to be implemented at that point. 3 The rest of the process is where a problem was 4 generated. And that is the process of the Legislative 5 Counsel Bureau conducting a final review for form and for 6 legal context made some changes, including some substantive 7 changes in section eight of the regulations as existed at 8 that time. 9 The -- when we became aware of the -- of the 10 language and the final version, which was effective 11 September 27th, 1999, the Nevada State Medical Association, 12 a number of individual physicians, and the Board all agreed 13 that the particular language did not reflect the intention 14 of the Board, the intention of the task force or indeed the 15 intent of the language in the guidelines. 16 So we're in the process of trying to fix that so 17 that these important safe harbors for physicians who have 18 been treating patients who have significant pain can be 19 fully implemented. 20 The Nevada State Medical Association has 21 basically put two options to deal with the issue on the 22 table, because there are, we recognized, differing 23 interpretations of what the Board can or cannot do by 24 regulation. 25 And the petition from the Nevada State Medical DISCOVERY REPORTING (775) 329-3500 10 1 Association reflecting discussions among the Nevada State 2 Medical Association leadership suggests that a way to avoid 3 the significant problems of converting clinical guideline 4 language into legal and regulatory language could be 5 avoided by adopting by reference the model guidelines of 6 the federation. And that would be our preferred 7 recommendation to the Board to consider. 8 If that's not possible, at a minimum, the 9 suggested revisions contained in Dr. Havin's two petitions, 10 which basically aim at changing the language in section 11 eight, so that the required written consent form appear in 12 every medical record for a patient for whom there has been 13 a prescription to deal with pain needs to be redone and the 14 language making that a -- the prevailing standard of care 15 what follows and he proposed language. It may need further 16 fine-tuning, but it essentially gets at removing that 17 section that right now makes the entire regulations 18 unimplementable. Or if they were implemented, would create 19 a crisis in the medical care system in the state right now. 20 So those are two options of dealing with the 21 specific problem on the table. And I, again, urge the 22 Board to consider them and the concerns and will look 23 forward to working with the Board on it. 24 MR. LEGARZA: Okay. The next person, if there's 25 anyone who wants to speak? DISCOVERY REPORTING (775) 329-3500 11 1 DR. MILLER: Sure, I'd like to. My name is 2 Mitchell Miller. I'm an internist from Elko, Nevada and 3 President of the Nevada State Medical Association. 4 THE COURT: Excuse me, Doctor, spell the last 5 name? 6 DR. MILLER: M-i-l-l-e-r. 7 MR. LEGARZA: Thank you, sir. 8 DR. MILLER: And like Larry, I'm speaking on 9 behalf of the Nevada State Medical Association. I'd like 10 to reiterate some of the information that Larry has made. 11 I know there's a lot of information going back and forth 12 and agree NSMA supports the amendments given by Dr. Havins 13 regarding the regulations. 14 I would like to make a few comments, 15 specifically, on our somewhat tardy petition to adopt by 16 reference the Federation of State Medical Board model 17 guidelines for the use of controlled substances for the 18 treatment of pain. This was a complex issue and took some 19 time for the members of the NSMA to thoroughly review and 20 assimilate and I believe this would be the preferred route 21 of amending the current regulations. 22 The model guidelines are concise and easily 23 understandable template. They have been implemented in 24 their entirety by the States of Arizona and Utah and it 25 appears that the intent of the Federation of Medical Boards DISCOVERY REPORTING (775) 329-3500 12 1 of the United States was to create a uniform standard that 2 is understandable across state lines and medical 3 disciplines and of regulatory boards that are considering 4 adopting the model guidelines. And a concern of each 5 regulatory agency that modifies them to the same extent 6 that the BME has that we will soon end up with a confusing 7 set of guidelines and that would do our patients a 8 disservice. 9 In my own specialty practice -- or 10 multi-specialty practice in Elko with two DOs currently and 11 we're attempting to hire a nurse practitioner, we 12 conceivably could have to comply with three different sets 13 of guidelines regarding pain management and controlled 14 substances. 15 MR. LEGARZA: Excuse me, Doctor. That may be the 16 case with respect to DOs, but APNs, can they prescribe 17 controlled substances? 18 DR. MILLER: Nurse practitioners under the 19 guidance of a physician. 20 MR. LEGARZA: I don't understanding that a nurse 21 practitioner can prescribe controlled substances. 22 DR. MILLER: Well, we have PAs in our office as 23 well. 24 MR. LEGARZA: There's a difference. 25 DR. MILLER: I understand that. I have not DISCOVERY REPORTING (775) 329-3500 13 1 supervised a nurse practitioner. I may be wrong. 2 MR. LEGARZA: I think you are. And your point is 3 well-taken with respect to maybe there's differences. The 4 President of the State Board of Osteopathic Physicians 5 served on our task force. 6 It's my understanding and I think I am correct, 7 APNs do not have the right to prescribe controlled 8 substances. Now, they may request it and they may go to 9 the session of the legislature and ask that, but at the 10 present time I do not believe they have that -- they 11 prescribe, but they do not prescribe controlled substances. 12 PAs can if the supervising physician allows it. But I 13 don't think the law allows APNs to do that at this point in 14 time. 15 DR. MILLER: Okay. That may the case. I know 16 there are scheduled drugs that the broader category of 17 scheduled drugs that, of course, the nurse practitioners 18 can prescribe and the nurse practitioners's Board has their 19 own regulations regarding scheduled drugs in general. 20 MR. LEGARZA: But the regulations we are 21 concerned with in this instance are, of course, controlled 22 substances Schedules Two, Three, Four and Five. 23 DR. MILLER: Nonetheless, there would still be a 24 couple of different versions of regulations regarding this 25 issue. DISCOVERY REPORTING (775) 329-3500 14 1 And, again, the association, that petition 2 received from us requests reference by reference the model 3 guidelines, which I believe I think a physician can move 4 from any state to Nevada, anywhere they're from, as long as 5 they're familiar with these guidelines and still be able to 6 comply with Nevada's regulations. If they're familiar with 7 them from another neighboring state as they would be from 8 Utah or Arizona and I understand there are other states, I 9 believe, Nebraska that have adopted these regulations by 10 reference with, I believe, few modifications. 11 I have a copy of my comments. I didn't read the 12 entire thing, but I'd like to pass those along to the 13 Board. 14 MR. LEGARZA: Is that what Mr. Matheis gave us? 15 DR. MILLER: No. 16 MR. MATHEIS: Yes. 17 DR. MILLER: Oh, you gave it? Okay. 18 MR. LEGARZA: Doctor, I have a couple of 19 questions of you. 20 DR. MILLER: Uh-huh. 21 MR. LEGARZA: You are the President of the Nevada 22 State Medical Association? 23 DR. MILLER: Yes. 24 MR. LEGARZA: And then there is the President 25 Elect has joined you in the petition on behalf of the DISCOVERY REPORTING (775) 329-3500 15 1 petition? 2 DR. MILLER: Marietta Nelson and this actually 3 came out of governmental affairs meeting. 4 MR. LEGARZA: You obviously speak with Mr. 5 Matheis. Are you aware of the fact that I indicated to the 6 people at the workshop yesterday that my information from 7 the Legislative Counsel Bureau, at least at this point in 8 time, would indicate that the Legislative Counsel Bureau's 9 legal position now at least is that we probably cannot 10 adopt the Federation model guidelines by reference? Are 11 you aware of that? 12 DR. MILLER: Larry has mentioned that and I 13 didn't know if that was something you would be able to take 14 another look at or if it's -- if it's been -- it's all been 15 said and done. 16 MR. LEGARZA: Quite frankly, I don't know what 17 the preference would be of the medical state, by either 18 amending the current regulations or adopting the Federation 19 guidelines. It would be my best guess that the Nevada 20 State Board of Medical Examiners would have no heartburn 21 going either way. 22 But the Nevada State Board of Medical Examiners 23 is precluded from adopting the federal -- the Federation 24 guidelines. Is it the official position of the Nevada 25 State Medical Association that we should take into DISCOVERY REPORTING (775) 329-3500 16 1 consideration the other modifications that Dr. Havins has 2 requested as well as other discussions that we have had 3 both yesterday, and possibly today, or is it the 4 association's position that the Nevada State Board of 5 Medical Examiners are to get out of the business of 6 regulating prescribing for acute and chronic pain and 7 intractable pain? 8 DR. MILLER: No. We agree with -- we support Dr. 9 Havin's petition. 10 MR. LEGARZA: Your petition doesn't say that. 11 Your petition pretty much says and I guess it's a fair 12 statement, isn't it, Dr. Havins has assisted you in 13 preparing that petition? 14 DR. MILLER: It was a step further. 15 MR. LEGARZA: And your petition says don't do 16 this, do this. But it -- are we -- do we then understand 17 that you are now representing that if we can't do what you 18 would like, which is the best case scenario, that you agree 19 with your executive director and you would like the record 20 to reflect that the Nevada State Board of Medical 21 Examiners, hopefully, can modify and amend the existing 22 regulations along the lines that at least Dr. Havins has 23 proposed and maybe who knows what other lines. 24 DR. MILLER: Absolutely. 25 MR. LEGARZA: Okay. Thank you, sir. And can I DISCOVERY REPORTING (775) 329-3500 17 1 also on behalf of the Nevada State Board of Medical 2 Examiners, as general counsel for the Nevada State Board of 3 Medical Examiners, indicate to you as the President of the 4 Nevada State Medical Association that if the association 5 has any language ideas, that those be given to me, that 6 they be sent to me, that at least I will have them in front 7 of me so that I can look at them and attempt to at least as 8 best I can incorporate them in some possibly requested 9 modifications or changes in the current regulations so that 10 things that -- the practicing physicians can live with, the 11 Board can live and what have you. 12 And I just want to represent that you as the 13 plaintiff because I told it to Mr. Matheis yesterday, and 14 I'm satisfied that he would pass it on to you, but by the 15 same token, the only input I have along the lines of, okay, 16 if we can't adopt the Federation guidelines, let's modify. 17 The only written input I have along those lines, of course, 18 is from Dr. Havins and that is what I am now and have been 19 working from. 20 So if you guys have something specific that you 21 want to consider between now and the time that it's 22 presented to the Board and the Board makes some sort of 23 decision and guidelines and goes out for the hearings, 24 would you please get me that information, because I'm the 25 guy that's going to be working on it. DISCOVERY REPORTING (775) 329-3500 18 1 DR. MILLER: Yes. 2 MR. LEGARZA: Thank you, sir. Anything else, 3 sir? 4 DR. MILLER: No, that's all the comments I have. 5 MR. LEGARZA: Who is next? 6 DR. HILL: I'd be happy to. I'm Dr. Haydon Hill, 7 H-i-l-l, and I'm a physician practicing here in Washoe 8 County and is Board certified in physical medicine and 9 rehabilitation and also in pain medicine. I represent 10 Washoe County Medical Society. 11 We endorse the comments that have been shared 12 with you by Mr. Matheis and Dr. Miller. And as I 13 understand it, the proposed -- ideal world -- proposed 14 language would be the national guidelines that we've 15 commented upon. If Nevada statutes preclude that option, 16 we would endorse the language that has been submitted, I 17 believe he references from Dr. Havins that has had the 18 input from the Nevada State Medical Association and Washoe 19 County endorses that. 20 Our concern, as practicing physicians here, is 21 that, number one, we want to provide appropriate care for 22 our patients and feel that the insistence of the written 23 consent is not practical and would be a tremendous burden 24 and interfere with the physician/patient relationship. 25 MR. LEGARZA: Is that it? DISCOVERY REPORTING (775) 329-3500 19 1 DR. HILL: That's it. 2 MR. LEGARZA: Let me ask you a question: The 3 written consent thing is something I think that the Nevada 4 State Medical Association is very concerned about as well. 5 But is it obviously to treat a patient, you have to have 6 the patient's consent. We all know that. 7 Is the written consent a burden because it's 8 something that is required ab initio or is it simply a 9 burden? In other words, the way I look at it, if you have 10 the written consent, at least in your medical records, that 11 in my opinion is something that at least you can take the 12 position the patient has been fully informed as to what it 13 is doing. 14 Part of the problem, as I understand it, in these 15 discussions, is the lead in language of section eight and 16 I've got some drafts stuff and I'm not going to give it to 17 you because it's really draft, but I'm going to be 18 providing it to Mr. Matheis and to Dr. Havins. But if you 19 look at section eight, if you have that in front of you, or 20 even if you have the new -- the new law under NRS or NAC 21 630.193, it reads at the present time, a physician and 22 physician's assistant shall control any acute or chronic 23 pain of a patient for the duration of the pain by 24 prescribing controlled substances in accordance with 25 prevailing standards of acceptable practicing or as DISCOVERY REPORTING (775) 329-3500 20 1 described in section two. And section two to comply with 2 are the standard of acceptable medicine. The physician or 3 physician assistant shall before prescribing a controlled 4 substance shall and then we go on. I've been playing with 5 this language. 6 If you look at the regulations and if you look at 7 what we have done with respect to discipline of physician's 8 assistants, we have brought in in the regulations, under 9 NAC 630.380, basically changing the law saying: PAs, we're 10 going to discipline you the same way we're going to 11 discipline doctors. We're going to hold you to the same 12 standard we hold the MDs and what the MDs are subject to 13 disciplinary action, you PAs are, too. 14 I've taken the language from that. Let's go back 15 to section eight and lead in. This is what I'm playing 16 with, a physician and a physician's assistant subject to 17 disciplinary action solely for prescribing or administering 18 to a patient under his care a controlled substance, which 19 is listed in Schedule Two, Three or Four by the State Board 20 of Pharmacy pursuant to NRS 453.156, if the controlled 21 substance is lawfully prescribed or administered for the 22 treatment of acute or chronic pain of the patient for the 23 duration of the patient's pain in accordance with the 24 following. Then I get into two, which attempts to address, 25 and it's early on, though, Larry attempts to address some DISCOVERY REPORTING (775) 329-3500 21 1 of the things you and I heard yesterday. 2 Instead of to comply with two would kind of read 3 like this: The physician or physician's assistant shall, 4 except in an emergency, during the first 30 days of 5 treatment, and in a hospice situation before prescribing, 6 dah-dum, dah-dum, dah-dum, dah-dum. And then we have the 7 written consent, which is one of those. 8 I add in the language that Dr. Havins has with 9 respect to establish a plan for treatment of the patient's 10 pain. We heard conversation yesterday and we were 11 presented with people in Las Vegas, at least, have a 12 problem with getting their script at one pharmacy. Mr. 13 Matheis and I heard that yesterday. 14 So under establish a plan for treating the 15 patient's pain includes without limitation we're talking 16 about the written agreement, we're talking about a plan 17 that the medical records have that the patient agree with 18 the physician that the patient only get the script from 19 that physician and attempt where possible to have it filled 20 at only one pharmacy. 21 Dr. Havins has requested that language be put in 22 with respect -- concerning adding discuss with the patient 23 not only the treatment but also alternatives thereto. But 24 now, if we have the window, if that's appropriate, the 25 30-day window, for instance, because if I'm treating, as I DISCOVERY REPORTING (775) 329-3500 22 1 understand it, if I am treating you for acute pain or even 2 chronic pain, certainly with acute pain, it's probably 3 going to be done within a 30-day window. 4 If it's going to last longer than that, then 5 maybe I should have these things in my medical records. 6 That's what I'm thinking of to open that up. We've got 7 this 30-day window of treatment, we've got the emergency 8 window and we have the hospice window. Because it was 9 clear to us yesterday that the hospice situation is getting 10 shorter and shorter and shorter. What'd she say? A week. 11 MR. MATHEIS: Increasingly and a lot -- Larry 12 Matheis. I think Dr. Cross was particularly concerned in 13 the short admission time when the physician hasn't had a 14 chance to do an entire history before the physician really 15 is appropriately prescribing for management of pain. I 16 think the direction you're going is exactly -- is focused 17 on exactly the concern. The concern is not about having 18 informed consent. There must be informed consent before 19 there's treatment. 20 MR. LEGARZA: Absolutely. 21 MR. MATHEIS: The issue and the issue isn't even 22 about having necessarily written consent when we're talking 23 about part of a -- of a large pain management regimen in 24 particular of a patient's case. It's just the way the 25 language was revised by the Legislative Counsel Bureau. It DISCOVERY REPORTING (775) 329-3500 23 1 now sweeps in, as you know, basically, any treatment for 2 any sort of pain requiring the creation of the written 3 informed consent. That's just not doable. 4 MR. LEGARZA: It's my impression it's not the 5 pain guys per se that have a problem. It's the nonpain 6 guys that are prescribing. 7 MR. MATHEIS: I think that's absolutely the case. 8 MR. LEGARZA: How about that, Doctor, the main 9 point of your -- of a lot of your presentation here is you 10 have a problem with the written consent, but if we have 11 this window, does, then, the written consent make sense or 12 not make sense? 13 DR. HILL: From my understanding of what you're 14 sharing, I still have grave concerns and some reservations 15 and continue to believe that the insistence of having 16 documentation of the written consent is a problem. 17 We absolutely agree you have to have informed 18 consent. It is incumbent upon the physician to document in 19 his or her records that the assessment and decision process 20 and treatment plan in combination with the patient and say 21 we recommend such and such including this medication and 22 the patient agrees and that would be reasonable, but then 23 to turn around and have the patient sign and give a written 24 consent, it's not practical. 25 If I could offer an example, where you said have DISCOVERY REPORTING (775) 329-3500 24 1 one physician in charge of the pain medication. Just an 2 example that happens very frequently. Say a 30-year-old 3 female who has chronic headaches and migraines is seeing 4 her family physician or neurologist for treatment and 5 management of those which include a narcotic analgesic as 6 part of it. She has chronic endometriosis and pelvic 7 pains, so the family physician and gynecologist are 8 interfacing. And she has a fracture and the orthopedist 9 treats her and has pain for that. Three different types of 10 pain, three different approaches with very different 11 medical expertise required. 12 And I don't think it would be a fair treatment 13 for the patient to expect that one of those physicians is 14 going to say: Okay. I'm going to prescribe all three of 15 those areas. Is it appropriate? And we would certainly 16 support saying all three of those practitioners should be 17 aware of what each one is doing and to be coordinated in 18 the management of that patient, but each patient's medical 19 problem needs to be assessed in its own right and addressed 20 as the patient and the patient's physician feel 21 appropriate. And so we have grave concern about insisting 22 on one physician, and in this situation, very difficult for 23 one physician to take care of all three of those problems 24 and the written consent. 25 MR. LEGARZA: Of course, you understand where the DISCOVERY REPORTING (775) 329-3500 25 1 doctors get in trouble with writing script is they get the 2 drug secrets. 3 DR. HILL: I understand that. 4 MR. LEGARZA: That's the rationale behind it. 5 That is in the model guideline, that is model guideline 6 language. No doubt about it, we're talking about we 7 support the model guideline, but we don't support this and 8 I'm not saying that anything should and it isn't written in 9 stone, but by the same token, I've been here about four 10 years and I've prosecuted probably 20 prescribing cases. 11 And one of the things that jumps out and gets the 12 doctors in the presentation of this thing and the people I 13 call the peer reviewers and the experts and now we have the 14 substance abuse task force, we can determine real easy how 15 many places these people are getting a script. Now we run 16 into a doctor who really isn't doctoring, there's other 17 problems there. 18 So the point, as I understand it, and the reason 19 the rationale behind it other than the complications, that 20 you suggest, is purely for the protection of the physician. 21 If you've got that in your medical records that the patient 22 has agreed with you that that's what they will do, the 23 patient that violates that, you can't get it hit over the 24 head that the patient is going all over town and getting 25 the stuff or getting it from other physicians. DISCOVERY REPORTING (775) 329-3500 26 1 Now, maybe where possible language needs to be 2 put in with respect to the physician as well as the -- as 3 well as the pharmacy. 4 MR. MATHEIS: Larry Matheis. The problem is 5 we've got one part of the guidelines and the last change, 6 which was made by the LCB folks, really did make a 7 substantive change here about what is in writing. And if I 8 could, I'll just read the couple of sentences that deal 9 with that. 10 MR. LEGARZA: Wait. Wait. Now, we aren't 11 talking about what is or is not in writing. We're talking 12 about the plan for the treatment of the patient that 13 includes the agreement. 14 MR. MATHEIS: Yes, that there's a difference 15 between a plan and a written informed consent statement. 16 But it comes out of, I think, the attempt to deal with in 17 the model guidelines for the use of controlled substances 18 for the treatment of pain section two guidelines, page two, 19 number three, informed consent and agreement for treatment, 20 which says, quote, the physician should discuss the risks 21 and benefits of the use of controlled substances with the 22 patient, persons designated by the patient or with the 23 patient's surrogate or guardian if the patient is 24 incompetent. 25 The patient should receive prescription from one DISCOVERY REPORTING (775) 329-3500 27 1 physician and one pharmacy, if possible, if the patient is 2 determined to be at high risk for medication abuse or has a 3 history of substance abuse. 4 A physician may employ the use of a written 5 agreement between physician and patient outlining patient 6 responsibilities including urine serum medication levels, 7 screening when requested, number and frequency of all 8 prescription refills and reasons for which drug therapy may 9 be discontinued; i.e., violation of the agreement. 10 It doesn't call for a written informed consent. 11 We did hear testimony from several pain management 12 specialists in the Las Vegas workshop that they routinely 13 do that with patients on whom they're manageable 14 retractable pain. But that the problem with the existing 15 regulations is that it mandates it whenever there is any 16 treatment for pain. 17 MR. LEGARZA: I understand that. 18 MR. MATHEIS: And so we're talking about how to 19 best get to the language of there must be consent, but I 20 think we agree with what the guidelines say on this and the 21 regulations should, as closely as possible, reflect that 22 spirit. 23 MR. LEGARZA: I guess what I'm saying is my 24 impression is if we get this right kind of lead in language 25 and we get these windows that why wouldn't we want a DISCOVERY REPORTING (775) 329-3500 28 1 written consent? 2 DR. MILLER: Mitchell Miller. I'll try to -- we 3 keep -- I'm concerned we have to keep having to make 4 exceptions for certain situations. I'll give you the 5 example that I've also given into my written document. I 6 have an 84-year-old woman. She's been my patient. Very 7 active, develops a pancreatic cancer. We've had a great 8 working relationship. She has been receiving weekly 9 gemcitabine chemotherapy and I'm controlling her pain 10 medication to control her pain. She trusts me and I trust 11 her. I could not manage her without giving her informed 12 consent every step of the way. 13 But I think it would be a violation of our trust 14 to go to her and say: In order to get the pain 15 medications, I want to you sign here that I've told you all 16 the potential problems and the alternatives. Now those 17 things are mentioned in my records, very carefully, why I'm 18 using them, what her pain is like. But to ask her to sign 19 that document, I think, would be totally inappropriate. 20 And I think there are many physicians who have similar 21 relationships with patients. And I'm not a pain physician, 22 I'm an internist who takes care of a lot of patients who 23 have pain. 24 MR. LEGARZA: So your position is that no matter 25 what windows we may or may not have with respect to DISCOVERY REPORTING (775) 329-3500 29 1 emergencies or a period of time or anything else, that it's 2 okay to say after discussing the risks, benefits and 3 alternatives, pursuant to the above paragraph, received 4 consent from the patient, legal guardian to assure the 5 patient to use the controlled substance but not written. 6 DR. MILLER: I don't have any problem with the -- 7 the language that was in your April edition and is actually 8 directly out of the Federation guidelines that basically 9 says if the patient is determined to be at high risk for 10 medication abuse or have a history of substance abuse, I 11 don't have a problem with written consent there. I would 12 agree with that. I would want that. 13 MR. LEGARZA: But we're talking about the other 14 one where you've established the plan for the patient and 15 we're talking about treating the patient. You don't 16 believe there should be written consent there, period? 17 DR. MILLER: Not in every situation, no. I think 18 it should be enabling. I think if -- the physician should 19 have the option of doing that if they feel the relationship 20 is, you know, possibly a concern, like in the individual 21 who's a substance abuser and I think you need to be more 22 careful in that situation. 23 MR. LEGARZA: What you're saying, we'll do away 24 completely with paragraph four. There's no use to receive 25 consent from the patient to use a controlled substance. DISCOVERY REPORTING (775) 329-3500 30 1 There's no way I can prove that you haven't, if it's not in 2 your medical records. You're giving the patient that. So 3 maybe this isn't a good idea. I hear what you're saying. 4 Doctor? 5 DR. HILL: Yes, sir. 6 MR. LEGARZA: Do you have something to add? 7 DR. HILL: I was just going to endorse and echo 8 Dr. Miller's comments that there are situations that it 9 would interfere with the physician/patient relationship and 10 that is why we are opposed to that language. 11 MR. LEGARZA: Okay. 12 DR. HILL: And we are concerned about the 13 workload on you it would be 99 percent of the physicians in 14 Nevada would be or are out of compliance with the current 15 language. 16 MR. LEGARZA: Well, you know something, I have to 17 say this: I don't think the Nevada State Board of Medical 18 Examiners goes out of its way to prosecute doctors. And 19 the law in the State of Nevada gives the Nevada State Board 20 of Medical Examiners and the investigative committee the 21 absolute discretion as to whether or not they even want to 22 file a formal complaint against a physician. And we aren't 23 the leaders in the nation in proceeding against physicians 24 and we are complaint driven. We don't even take a look at 25 you unless we get a complaint from someone about you. DISCOVERY REPORTING (775) 329-3500 31 1 And we review the complaint that we get from 2 someone about you to make a determination as to whether or 3 not we even have jurisdiction to investigate you. And if I 4 and my chief investigator make a determination that we have 5 no jurisdiction over the complaint, the complainant is sent 6 a letter and said we're not go to open a case, we're not 7 going to even bother the doctor with this. 8 So I agree kind of with what you're saying but -- 9 I'm not that busy. And I fully understand what you're 10 saying and why you're saying it and I'm satisfied the 11 Nevada State Board of Medical Examiners is just concerned 12 about your concerns as you are. And we're working on it 13 and I'm working on it and you've got some ideas you think 14 you want to incorporate. I want to see them, because I 15 think that the Board's probably going to keep the 16 regulation. If they can't adopt it by reference, I think 17 that's everybody's position, that they should and I'm going 18 to try to draft them as best I can and spend as much time 19 on them as I can to get them to the LCB and get them back. 20 I don't want to make a career of having hearings every week 21 about somebody wants to have these regulations amended and 22 changed again. So the door is open. Although Dr. Havins 23 has said that I have refused to return telephone calls, I 24 don't screen my telephone calls and if -- Larry is able to 25 get a hold of me any time he wants to get a hold of me and DISCOVERY REPORTING (775) 329-3500 32 1 anyone else can. If you have any specific language you or 2 your lawyers or someone like that, that should be 3 considered, I'd appreciate it. 4 DR. HILL: Haydon Hill speaking for myself. Your 5 suggestion of deleting paragraph four seems very 6 reasonable. 7 MR. LEGARZA: All right, sir. Anyone have 8 anything further? Thank you. 9 --oOo-- 10 I, Stephanie Koetting, CCR #207, do hereby 11 certify that the foregoing transcript, consisting of pages 12 1 through 32, is true and correct to the best of my 13 knowledge, skill and ability. 14 DATED: This 8th day of February, 2000. 15 _________________________________ STEPHANIE KOETTING, CCR #207 16 17 18 19 20 21 22 23 24 25 DISCOVERY REPORTING (775) 329-3500 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DISCOVERY REPORTING (775) 329-3500