A Guide to State Opioid Prescribing Policies

Pain Policy and Regulation: Arkansas

Summary

Arkansas has an Intractable Pain Treatment Act (IPTA) (law). In general, the State of Arkansas believes that:

• Pain management plays an important role in good medical practice;
• Physicians should recognize the need to make pain relief accessible to all patients with chronic intractable pain; and
• Physicians should view pain management as a regular part of their medical practice for all patients with chronic intractable pain.

The Arkansas IPTA states that a physician shall not be subject to disciplinary action by the Arkansas State Medical Board solely for prescribing dangerous or controlled drugs for the relief of chronic intractable pain.

The Arkansas IPTA requires the Arkansas State Medical Board to direct a Pain Management Review Committee to use the criteria set forth below to review a physician's prescribing patterns when treating chronic intractable pain.

The Arkansas IPTA also requires the Arkansas State Medical Board to make "reasonable efforts" to notify healthcare providers of the IPTA, and present opinion evidence from a full-time, active practice physician in direct patient care who is knowledgeable in pain management.

The Arkansas IPTA gives the defending physician the right to present testimony from a similarly qualified expert. Likewise, the Arkansas IPTA allows the Arkansas State Medical Board to incrementally impose sanctions following a hearing. For example, the Board may:

(a) Monitor prescribing habits of the physician not to exceed six (6) months; (b) Require the physician to voluntarily surrender his or her United States Drug Enforcement Agency license to the board for a specified period of time not to exceed three (3) months; (c) Suspend the physician's license, stay the suspension, and require monitoring of prescribing habits; (d) Revoke the physician's license, stay revocation, and require monitoring of the physician's prescribing habits for a specified time; and/or (e) Revoke the physician's license for serious violations of statutes and regulations.

If the Arkansas State Medical Board finds a severe violation of statutes and regulations, it may initially impose the more severe sanctions.

Regardless of the substantive sanctions imposed, the Arkansas State Medical Board may require continuing medical education hours in proper prescribing habits during any disciplinary ruling.

On the basis of the evaluation and management of a patient's individual needs, the Arkansas IPTA allows a physician to:

• Treat a patient who develops chronic intractable pain with a dangerous or controlled drug to relieve the patient's pain;
• Continue to treat the patient for as long as the pain persists;
• Treat the pain by managing it with dangerous or controlled drugs in amounts or combinations that may not be appropriate for treating another medical condition;
• Administer large doses of dangerous or controlled drugs for pain management if the benefit of relief outweighs the risk of the large dose; and
• Administer a large dose of a dangerous or controlled drug even if its use may increase the risk for death, if the purpose is not to cause or assist in a patient's death.

The Arkansas IPTA prohibits the physician from:

(1) Prescribe or administer dangerous or controlled drugs intended to manage chronic intractable pain to treat a patient for chemical dependency on drugs or controlled substances; (2) Prescribe or administer dangerous or controlled drugs to a person the physician knows to be using drugs for nontherapeutic purposes; (3) Prescribe or administer dangerous or controlled drugs to a person for other than legitimate medical purposes; or (4)(A) Cause or assist in causing the suicide, euthanasia, or mercy killing of any individual. (B) However, causing or assisting in causing the suicide, euthanasia, or mercy killing of any individual does not include prescribing, dispensing, or administering medical treatment for the purpose of alleviating pain or discomfort, even if that use may increase the risk of death, so long as the treatment is not furnished for the purpose of causing or assisting in causing the death of the individual.

The Arkansas IPTA defines the duties of the Pain Management Review Committee as follows:

The committee shall consist of five (5) full time active physicians in direct patient care members, two (2) of whom may be board certified pain management specialists and three (3) of whom may be physicians with significant pain management in their practices or with a degree in pharmacy, appointed by the board from a list provided by the Arkansas Osteopathic Medical Association, the Arkansas Medical Society, and the Arkansas Pain Society.

The committee shall:

1. In cooperation with the Arkansas Osteopathic Medical Association, the Arkansas Medical Society, and the Arkansas Pain Society, develop guidelines for investigations of complaints regarding conduct in violation of this subchapter;
2. Review complaints on an individual patient needs basis regarding physicians treating chronic intractable pain in violation of this subchapter; and
3. Provide an objective critique to the board for board determination in a timely manner and, if determined, before the board's disciplinary hearing.

The Arkansas IPTA provides immunity from criminal prosecution under certain circumstances: "No physician shall be subject to criminal prosecution for prescribing or administering controlled substances under appropriate criteria in the course of treatment of a person for chronic intractable pain."

Arkansas State Medical Board Rule 2(6) (From December 1998)

Rule 2(6) of the Arkansas State Medical Board contains the following statements:

The treatment of pain with dangerous drugs and controlled substances is a legitimate medical purpose when done in the usual course of medical practice.

If the physician properly documents the "drug treatment" of an individual and meets the requirements of Rule 2.6, then the Arkansas Board "will consider such practices as prescribing in a therapeutic manner, and prescribing and practicing medicine in a manner consistent with public health and welfare."

However, the Arkansas State Medical Board warns that:

…a physician who prescribes *narcotic agents Schedule 2, 3, 4, and 5, excluding Schedule 4 Propoxyphene products and to include the schedule drugs Talwin, Stadol, and Nubain, on a long term basis (more than six (6) months) for a patient with pain not associated with malignant or terminal illness will be considered exhibiting gross negligence or ignorant malpractice unless he or she has complied with the following:

1. The physician will keep accurate records to include the medical history, physical examination, other evaluations and consultations, treatment plan objective, informed consent noted in the patient record, treatment, medications given, agreements with the patient and periodic reviews.
2. The physician will periodically review the course of scheduled drug treatment of the patient and any new information about etiology of the pain. If the patient has not improved, the physician should assess the appropriateness of continued prescribing of scheduled medications or dangerous drugs, or trial of other modalities.
3. The physician will obtain written informed consent from those patients he or she is concerned may abuse controlled substances and discuss the risks and benefits of the use of controlled substances with the patient, his or her guardian, or authorized representatives.

There is a sample informed consent document attached to this rule. Note from author Bolen: This form is not likely to hold up to a civil lawsuit involving anything relating to informed consent because it does not cover the elements of informed consent. Physicians should consult legal counsel in Arkansas, the American Medical Association (AMA) Code of Ethics, and various case opinions on this issue.

d. The physician will be licensed appropriately in Arkansas and have a valid controlled substance registration and comply with the Federal and State regulations for the issuing of controlled substances and prescriptions, more especially the regulations as set forth in 21 Code of Federal Regulations Section 1300, et sequence.