The CDC’s Public Health Law Program (PHLP) published an inventory of state legal strategies to help assess doctor shopping laws. Doctor shopping is when a patient visits multiple healthcare practitioners to obtain controlled substances without the prescribers’ knowledge of the other prescriptions.
The United States is in the midst of an unprecedented epidemic of prescription drug overdose deaths. More than 41,000 people died of drug overdoses in 2011, and most of these deaths (22,810) were caused by overdoses involving prescription drugs. Three-quarters of prescription drug overdose deaths in 2011 (16,917) involved a prescription opioid pain reliever (OPR), which is a drug derived from the opium poppy or synthetic versions of it such as oxycodone, hydrocodone, or methadone. The prescription drug overdose epidemic has not affected all states equally, thus overdose death rates vary widely among states.
States have the primary responsibility to regulate and enforce prescription drug practice. Although state laws are commonly used to prevent injuries and their benefits have been demonstrated for a variety of injury types, there is little information on the effectiveness of state statutes and regulations designed to prevent prescription drug abuse. This report is a first step in assessing doctor shopping laws by creating an inventory of state legal strategies in this domain.
A law was included in this resource if it prohibits doctor shopping, either generally through an anti-fraud statute or specifically through a mandatory disclosure law. All fifty states and the District of Columbia have a general fraud statute adopting verbatim—or with slight alteration—a provision in the Uniform Narcotic Drug Act of 1932 or the Uniform Controlled Substances Act of 1970.
The Uniform Narcotic Drug Act states that “[n]o person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug . . . by fraud, deceit, misrepresentation, or subterfuge [ ] or . . . by the concealment of a material fact . . . .” The Uniform Controlled Substances Act was introduced much later and included similar language. However, it did not include the phrase “concealment of material fact.”
Twenty states have also enacted specific doctor shopping laws that appear as stand-alone laws or provisions within general doctor shopping laws. Specific doctor shopping laws prohibit a patient from knowingly withholding information from the practitioner the patient is currently seeing about controlled substances or prescriptions they have received from other healthcare practitioners.
States with general doctor shopping laws prohibit patients from obtaining drugs by any or all of the following means: fraud, deceit, misrepresentation, subterfuge, or concealment of material fact. While all states and the District of Columbia have general doctor shopping laws, the language used in the laws varies across jurisdictions.
About one-third of states and the District of Columbia have enacted general doctor shopping laws that contain only the Uniform Controlled Substances Act language. Delaware law, for example, provides that “[i]t is unlawful for any person knowingly or intentionally . . . [t]o acquire or obtain or attempt to acquire or obtain, possession of a controlled substance or prescription drug by misrepresentation, fraud, forgery, deception or subterfuge . . . .”
General doctor shopping laws in other states contain language only from the Uniform Narcotic Drug Act. For example, California law provides that “[n]o person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances; (1) by fraud, deceit, misrepresentation, or subterfuge; or (2) by the concealment of a material fact.”
Another group of states with general doctor shopping laws have used language from both the Uniform Narcotic Drug Act and the Uniform Controlled Substances Act. Rhode Island, for instance, has two general doctor shopping laws. One provides that “[n]o person shall obtain or attempt to obtain a controlled substance or procure or attempt to procure the administration of a controlled substance . . . [b]y fraud, deceit, misrepresentation, or subterfuge; [or b]y the concealment of material fact . . . .” The other provides that “[i]t is unlawful for any person knowingly or intentionally . . . [t]o acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge . . . .” The only apparent difference between the two laws is the phrase “concealment of material fact.”
A few states have general doctor shopping laws that do not follow either uniform act. For example, Kansas law provides that “[u]nlawfully obtaining a prescription-only drug is . . . providing false information, with the intent to deceive, to a practitioner or mid-level practitioner for the purpose of obtaining a prescription-only drug.” Alternatively, Maine law provides that “[a] person is guilty of acquiring drugs by deception if, as a result of deception, the person obtains or exercises control over a prescription for a scheduled drug or what the person knows or believes to be a scheduled drug, which is in fact a scheduled drug.” Somewhat differently, Kentucky law prohibits obtaining or attempting to “obtain a prescription for a controlled substance by knowingly misrepresenting . . . or withholding information from, a practitioner.”
In contrast to general doctor shopping laws, specific doctor shopping laws make it illegal for patients to withhold from practitioners that they have received either any controlled substance or prescription order from another practitioner, or the same controlled substance, or one of similar therapeutic use. For instance, South Dakota law specifies in part that “[a]ny person who knowingly obtains a controlled substance from a medical practitioner and who knowingly withholds information from that medical practitioner that he has obtained a controlled substance,” violates the law. The specific doctor shopping laws may specify disclosure timeframes, types of drugs, and detailed disclosure requirements. Several states with specific doctor shopping laws define the timeframe within which a patient is required to disclose his previous controlled substance activity.
Some states use thirty days as the measure of proximity. For example, Montana makes doctor shopping illegal by prohibiting a patient from “knowingly or purposefully failing to disclose to a practitioner . . . that the [patient] has received the same or a similar dangerous drug or prescription for a dangerous drug from another source within the prior [thirty] days.” Wyoming also prohibits “receiv[ing] the same or similar controlled substance . . . within the prior thirty (30) days.”
Other states require disclosure of controlled substances or prescriptions received within a concurrent timeframe. For example, Connecticut provides that “[n]o person who, in the course of treatment, is supplied with controlled substances or a prescription therefor by one practitioner shall, knowingly, without disclosing such fact, accept during such treatment controlled substances or a prescription therefor from another practitioner . . . .” Georgia law makes it illegal “[t]o withhold information from a practitioner that such person has obtained a controlled substance of a similar therapeutic use in a concurrent time period from another practitioner.”
Eight states with specific doctor shopping laws require a patient to disclose previous drugs or prescriptions only when the current practitioner is proposing treatment by a controlled substance with the same or similar therapeutic use as those already received or prescribed. Tennessee law, for example, describes illegal doctor shopping as “deceiv[ing] or fail[ing] to disclose to a [prescriber] that the person has received either the same controlled substance or a prescription for the same controlled substance or a controlled substance of similar therapeutic use or a prescription for a controlled substance of similar therapeutic use from another practitioner.” The remaining states prohibit doctor shopping for all controlled substances, “regulated drugs,” or “narcotic drugs.”
In addition to time and drug type provisions, two states have additional disclosure requirements. For example, Louisiana requires a patient’s disclosure to include “the name of the controlled dangerous substance, the date of the prescription, the amount of the controlled substance prescribed, and the number of refills if any.” Alternatively, Maine prohibits failing to disclose “the particulars of every narcotic drug,” by another prescriber within 30 days.
Connecticut and Hawaii have specific doctor shopping laws that also take a different approach to prohibiting nondisclosure of information to obtain controlled substances. Connecticut prohibits nondisclosure of such information only with “the intent to obtain a quantity of controlled substances for abuse.” Hawaii’s law specifies that a patient’s nondisclosure is a violation of the specific doctor shopping law only if the “total quantity of drugs prescribed would exceed what a single practitioner would prescribed for same time. And legitimate medical purpose.”
The District of Columbia and twenty-three states that regulate doctor shopping, through either general or specific doctor shopping laws, have enacted laws specifying that information communicated from a patient to a practitioner in an attempt to obtain drugs by fraud is not protected as a privileged communication. The District of Columbia law provides that “[i]nformation communicated to a physician in an effort unlawfully to procure controlled substances . . . shall not be deemed a privileged communication.”
Some jurisdictions have enacted privilege laws drafted separately from doctor shopping laws, but the majority of these laws include the privilege language within the doctor shopping law itself. An example of the stand-alone privilege language can be found in Alaska’s law, which states that “[i]nformation communicated to a physician or other licensed practitioner in an effort to unlawfully procure a controlled substance or to unlawfully procure the administration of a controlled substance is not a privileged communication.” Oklahoma’s general doctor shopping law contains privilege language that provides “[i]nformation communicated to a physician in an effort unlawfully to procure a controlled dangerous substance . . . shall not be deemed a privileged communication.” As illustrated above, there are no significant differences among the states in the privilege language used whether drafted as a stand-alone law or contained within a doctor shopping law.
See the CDC Report
See also Medical Law Perspectives, January 2014 Report: Prescription Painkillers: Risks for Patients, Pharmacists, and Physicians
See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication