Dealing drugs legally: Keep the feds off your back and your meds off the street

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I was just perusing a list of New York Bar Association-approved continuing education classes when I came across this interesting topic: “Ethically Representing Clients Engaged in the Illegal Drug Industry.” The first thing I thought to myself was that there can't be an ethical way to provide such legal advice. How can a lawyer help a business owner who is blatantly violating federal law? Interesting question.

My second thought was, why didn't this catalog have a program to educate lawyers about giving sound advice to legal drug dealers? (That would be us veterinarians.) Inasmuch as I saw no such CE program, I was motivated to dedicate this month's column to providing some ideas and pointers to my veterinary colleagues who have, owing to their advanced education, earned the right to buy and dispense controlled substances.

Some interesting background

The federal government has been involved to a greater or lesser extent in regulating drugs since the turn of the twentieth century. In those early years the effort was more form than substance and legislation regulating various medications was haphazard and steeped in formality. (When I was settling my dad's estate-he was a veterinarian-I came across his first federal drug license from 1939. It was printed on paper so fancy and with such impressive engraving it looked more like some type of money than a permit. It read, “Opium Products Purchase License.”)

In 1970, President Richard Nixon signed the first Controlled Substances Act (CSA), which assigned federally regulated substances deemed addiction risks to one of five “schedules” primarily on the basis of potential dependency. As from time to time amended, the CSA has been the controlling federal legislation with respect to narcotics since that enactment.

Alongside this federal legislation, each state has its own narcotic control statutes and enforcement systems, which may be more or less strict and more or less comprehensive than the CSA.

The result? A person may simultaneously be in violation of state law and in compliance with federal law, or vice versa. For example, sale and use of recreational marijuana in Colorado can be full in compliance with Colorado law while being an ongoing criminal enterprise under the law of the United States. Or, you as a veterinarian may order and dispense narcotics in full compliance with federal law and at the same time be guilty of violating your state's law if those same drugs are not cataloged or stored appropriately.

Veterinarians and dentists: similar risks

As time passes and the “war on drugs” becomes an ever more difficult challenge, many states are moving ahead of the federal government in creating laws designed to control the use and abuse of prescription drugs. Many states are placing mandates on “prescribers”-those who possess a Drug Enforcement Administration (DEA) narcotics license-who practice within their various jurisdictions. As I see it, these constantly changing and more onerous inventory and dispensing regulations have placed a heavier burden on private dental and veterinary practitioners than on physicians. Here's why:

There is an increasing trend for physicians to become employees of hospitals and hospital chains that have the financial wherewithal to keep track of narcotics (as well as non-addictive medications), which they purchase and then “re-sell” to patients.  The same complex profit-maximizing/cost-controlling algorithms and logistical software hospitals use for enhancing revenue can be tweaked to keep track of every pill, every milliliter and every patch purchased by the hospital and subsequently dispensed or ordered by its doctors.

Small private dental and veterinary groups do not have that broad digitally based support system. And because we really must have access to controlled substances in order to practice, we must satisfy both the state regulators and the feds, but using only personal computers and handwritten documents and schedules. The process can be daunting and the penalties for failing to comply with the “letter of the law” can be serious and expensive. Let's look at an example.

At a given veterinary clinic, the staff may be conscientious about measuring and logging the practice's inventory of scheduled drugs. But if the clinic does not have an automated controlled substance management system (Cubex or similar), there are likely ways to obtain product without immediate detection. Realistically, if a doctor or technician were to pilfer a handful of diazepam tablets or a few fentanyl patches, it could easily be a month or more before the loss was discovered, assuming the thief was even moderately clever.

On the other hand, when first-year residents at human hospitals begin work, they are often required to spend weeks working on electronic medical records training before being allowed to set foot on a floor with patients. Much of this computer work is dedicated to training residents how to order and dispense narcotics, antibiotics and chemotherapeutic agents such that the new resident's orders will match up correctly with the hospital's ordering, inventory and allocation software.

What to watch out for

With this background in mind, veterinarians need to keep their eye on the ball with respect to both appropriate use of medications and the potential for unwitting abuse of the rights conferred by their DEA license. The most risky situation as I see it is a veterinarian leaving his or her job or partnership.

When a veterinarian works at a multiple-DVM practice, he or she may be walking away under a cloud of unexpected and unknown drug-related liability. Remember that no matter where a DVM is practicing, that doctor is legally responsible for all of the narcotics and other scheduled drugs that were ordered under his name.

Drugs in inventory that have been ordered under the DEA number of the departing doctor should be cataloged and either transferred to another appropriate site (with proper documentation) or destroyed (with witnesses and signatures in compliance with both state and federal law). It is the practitioner's to make certain that cataloguing and custody are carried out in compliance with all applicable laws. It is not enough to simply walk away and hope your meds are used on patients and not diverted to the street.

Your copies of Form 222 (blank as well as a copy of those used) need to be located and the practitioner needs to take all unused forms with her. The practice may make copies of forms previously used for purchases but the departing doctor should retain copies as well.

Notify suppliers of your departure as soon as it has been announced to staff members at the clinic. If there is an opportunity for a clinic team member to obtain controlled substances illegally without getting caught, this is about the best chance. Particularly in large practices, it would not be difficult for one veterinarian with a substance abuse problem to order product under the departing DVM's name, only to have the bill paid through the bookkeeper without anyone being the wiser. Unless the drug wholesaler conducts some sort of random check, no one might ever know that the narcotic was ordered. Even if the order was for a schedule 2 product, this could be accomplished if the departing veterinarian failed to take her copies of Form 222 with her.

How to practice good drug housekeeping

If you're a practice owner or have some degree of management responsibility, here are some best practices for managing drugs in veterinary practice:

Rotate drug inventory personnel. It's always a good idea to have a licensed veterinary technician or staff veterinarian involved in the periodic inventorying of controlled substances. And it's always ideal to have a witness present while the inventory is being carried out. What is not a great idea is to have the same person or pair of people always do the job. Rotating the personnel assigned to this task minimizes the likelihood of collusion. And it simultaneously reminds potential thieves that the chance of getting caught is high.

Mind your prescription pad. As a temporary nod to veterinarians, many states have exempted veterinarians from mandatory electronic prescription writing for narcotics. Physicians generally have to send such orders directly to pharmacies but often veterinarians do not.  Therefore, a state-approved prescription pad can be very valuable to a person who wants to obtain narcotics or other dangerous drugs for illicit reasons. Make certain you take your pads with you when you leave a practice for employment elsewhere. And check your pads regularly to be sure there are no missing pages.

Weigh the costs and benefits. Finally, keep in mind that as these waves of new drug legislation pass over our profession, it's a good time to evaluate the costs and benefits of selling and refilling scheduled drugs. Certainly we have to maintain an inventory of a number of products for internal clinical use. But even if it's legal, is it worth the headache to sell phenobarbital or diazepam for clients to use on their pets?

I know that under the recording and reporting laws in New York, it isn't worth it for me. My veterinary practices now stock the absolute minimum of controlled drug product consistent with practicing high-quality medicine and surgery. As legislation proliferates, you may find yourself coming to that same decision-if you haven't already done so.

Christopher J. Allen, DVM, JD, is president of the Associates in Veterinary Law PC, which provides legal and consulting services exclusively to veterinarians. He can be reached via e-mail at info@veterinarylaw.com.