You also have a legal and ethical responsibility to uphold these laws and to help protect society from drug abuse … The dispensing pharmacist must maintain constant vigilance against forged or altered prescriptions. The law holds the pharmacist responsible for knowingly dispensing a prescription that was not issued in the usual course of professional treatment. The DEA places the responsibility on the physician and pharmacist to ensure that prescriptions are appropriate, but the process for reporting prescription fraud to the DEA or law enforcement is not clear.
The Office of Diversion Control's website instructs the pharmacist to refuse to dispense the prescription and call their local law enforcement officials to report a crime. DEA policy also states that a pharmacy recognizing a pattern of fraud should contact the State Board of Pharmacy or the DEA in order to investigate this larger diversion scheme.
This policy does not, however, provide direction to physicians or other health care providers to report medication fraud. Similarly, as discussed later, federal privacy laws do not appear to permit the prescribing physician or health care provider to report a forged or altered prescription to law enforcement. A health care provider may, for instance, disclose health information to law enforcement for the purpose of reporting a crime on the premises. Prescription forgery, however, does not fit neatly into this provision.
Table lists the other conditions exceptions under HIPAA's Privacy Rule when protected medical information may be shared with law enforcement without the patient's authorization.
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Exceptions to Health Insurance Portability and Accountability Act's privacy rule's prohibition on the use or disclosure of protected health information without the individual's written authorization: when covered entities may share pertinent medical information with law enforcement without the individual's written authorization generally, subject to certain requirements, and the information disclosed must be the minimum necessary for the permitted purpose. In response to a law enforcement request for the purpose of identifying or locating a suspect, fugitive, material witness, or missing persons.
In response to a law enforcement request for information about an individual who is or is suspected to be a victim of a crime. The victim could be an individual who is employed by the covered entity reporting child abuse or neglect—disclosure permitted to a government authority authorized by law to receive such reports. Reporting child or adult abuse or neglect or domestic violence—disclosure permitted to a government authority authorized by law to receive such reports. When responding to an offsite medical emergency in order to alert law enforcement to criminal activity. Reporting to authorized federal officials to conduct lawful intelligence authorized by the National Security Act and implementing authority.
Reporting to a law enforcement official having lawful custody of an inmate or other individual for purposes such as providing care to such individual. If the covered entity believes that the disclosure is needed for a law enforcement official to identify or apprehend an individual who admits participating in a violent crime or who it appears has escaped a correctional institution or lawful custody. If the covered entity believes the information is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public, and that the law enforcement official is reasonably able to prevent or lessen the threat.
The circumstances when disclosure of PHI to law enforcement would be permitted by HIPAA appear to be unrelated to the average case of prescription forgery unless a specific state law as noted in item 8 of Table mandates reporting. Such forgeries are usually presented in a pharmacy distant from the prescribing location. It appears that HIPAA only permits the prescriber to report someone who has obtained or is attempting to obtain a drug with a false prescription if it occurs on the prescriber's premises in the absence of mandatory reporting under state law.
It also may be reasoned that reporting prescription forgery should be expressly permitted under the law because forgery is a form of drug diversion and the cessation of diversion is a public health issue. There is little doubt that prescription opioid misuse is a threat to public health in terms of unintended deaths, diversion, addiction, and abuse of the health system.
Nonetheless, HIPAA requires that health care providers disclose no PHI to third parties unless a specific exception applies and there does not appear to be clear protection for a prescriber who reports prescription forgery. No clear exception appears to apply to prescription forgery, and therefore, reporting the forgery, which would identify the patient as receiving care from that prescriber, results in a potential violation of the Privacy Rule.
Therefore, disclosure of such information to law enforcement would seem to be prohibited regardless of the legality of the prescription itself. Once a forgery is discovered, it may be reasonable to alert other health professionals who are directly involved in the care of the individual, even if a health care provider is not permitted to disclose a prescription forgery to law enforcement. Such reporting appears to be allowed under HIPAA, which permits the sharing of health information between providers who care for that patient if the disclosure is for treatment purposes.
State medical boards may have guidelines for dealing with falsified prescriptions and may offer the opinion that physicians should report illegal prescriptions to the appropriate authorities. For instance, the Medical Board of California MBC is in favor of reporting to law enforcement when prescription forgeries are suspected. However, a close reading of the MBC statement suggests that its particular concerns and underlying rationale do not necessarily apply to the case scenario we are considering. The specific behaviors addressed by the MBC statement include the illegal use of the physician's DEA number, or theft or loss of controlled substances or Federal Order Forms.
Nonetheless, the MBC recommends that a physician report a forged or altered prescription because such conduct is a crime under California Health and Safety Code Section The case described here illustrates a potential dilemma for clinicians as well as an unintended and undesirable consequence of regulatory policy. In an era of growing concerns over prescription drug abuse, clinicians must maintain the confidentiality of their patients as well as meet the societal responsibility of reporting a potential crime related to controlled substances. In our case, both responsibilities were self-evident, but the appropriate actions practitioners should take are not clear.
The medical literature offered insufficient guidance.
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Our review of federal and state laws and regulations suggests that unless state law specifically requires reporting to law enforcement or the HIPAA Privacy Rule specifically permits the disclosure without the patient's authorization, confidentiality of PHI may be at risk in informing law enforcement of forgery of a controlled substance. Pharmacists appear to have different and more rigorous legal and ethical requirements than physicians and other types of prescribers.
Pharmacists are asked by the DEA to not only be vigilant but to work with law enforcement.
In certain situations, the pharmacist is asked to call the local police and even the state pharmacy board and local DEA office. Thus, a prescriber who becomes aware of a forged prescription may consider discussing the case with the pharmacist who was presented with the fraudulent prescription. If the evidence is compelling, the pharmacist upon whose premises the forgery occurred might be obligated under state law and would be permitted under federal law to report to law enforcement.
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Although not legally tested in the United States, the prescriber could document the interaction as well as the pharmacist's efforts in reporting to the appropriate authorities. As such, perhaps the clinicians involved may come as close as possible in meeting the letter of the law while also upholding the prescriber's ethical obligations to their patient and society. The duty to maintain patient privacy and confidentiality dates from at least the Hippocratic era. To a significant extent, the law both common and statutory has recognized and affirmed the necessity for clinicians to respect the confidentiality of information obtained within the context of a patient—physician relationship.
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However, the law has also recognized legitimate exceptions to this general principle. Patient confidentiality provisions in ethics codes for health care providers, similar to those established by the American Pharmacists Association, outline a therapeutic relationship based on confidentiality, trust, and compassion between providers and patients. Because physicians and pharmacists have a moral and legal obligation to maintain patient privacy and confidentiality, it appears that a prescriber can feel completely safe and justified in departing from this general standard of conduct only when the law specifically provides that prescribers must or are authorized to breach that confidentiality.
Our analysis of the case presented here suggests a lack of clarity in the law and public policy for providers faced with prescription forgery that is neither intended nor desirable. In light of the current dire public health crisis of prescription drug abuse, other state legislatures, like Tennessee, may find it necessary to pass state laws that clarify the prescribers' role in the event of a forged prescription for a controlled substance.
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Prescription drug abuse remains a major health problem as well as a high priority for federal and state law enforcement. We know of no federal law that mandates physician reporting of medication fraud, but the prescriber may feel an ethical or moral obligation to do so in the interest of public health or justice. Our analysis suggests that prescribers who report a suspected prescription forgery to law enforcement might risk violating federal medical privacy laws unless individual state law requires them to do so such as in Tennessee and perhaps a few other states.
When a criminal act occurs on the prescriber's premises, federal privacy laws appear to permit reporting of the necessary facts to the appropriate authorities, but this exception is seldom applicable to a prescriber who becomes aware of prescription forgery or alteration. In most cases, the prescriber may work collaboratively with the dispensing pharmacist who is often able to report the crime without violating HIPAA.
Moreover, state legislatures should consider enacting laws that provide clarity about responsibilities for reporting prescription forgery. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account. Sign In. Advanced Search. Article Navigation. Close mobile search navigation Article Navigation. Volume Article Contents. Oxford Academic. Google Scholar. Scott Fishman, MD. Tel: ; Fax: ; E-mail: smfishman ucdavis.
Anna Orlowski, JD. PDF Views. Cite Citation. Permissions Icon Permissions. Abstract Objective. Table 1.