July 16, 2019

Dentistry And The Law: Q & A With Health Care Attorney Daniel Schulte

ANSWER:  There are no laws or regulations that require you to terminate this employee.  However, the best practice would be to do so.   You should only employ people you can trust in your practice. After what this employee has done that trust has been broken.  I do not know how you could ever trust this employee again.

You must also consider how it will appear to others if you do not terminate this employee. There are several ways these illegal prescriptions may be discovered.  The most likely is that the State of Michigan will discover these prescriptions when reviewing your Michigan Automated Prescription System (“MAPS”) data.  Following the passage of Michigan’s 2018 prescribing laws and due to the prevalence of controlled substance diversion and addiction, the state’s scrutiny of controlled substance prescription writing is at an all-time high currently. The state also has new tools to monitor prescription writing and to discover outliers with the new and improved MAPS system.  You could be investigated and may have an Administrative Complaint filed seeking to sanction your license to practice dentistry.  If this occurs, you will have to explain why it is you allowed this employee to remain working in your practice (with continued access to your prescription writing capability).  Your failure to terminate this employee my appear that you condone this illegal activity or even that you are enabling it.  For you to be in the best position to defend yourself and protect your license you will want to be able to tell the investigators that you terminated the employee as soon as you discovered the illegal prescription writing and made all the required reporting.

My advice is also to notify your local police department and make a report of the theft of your prescriptions, DEA and Controlled Substance License numbers and that local pharmacies have received illegal prescriptions.  You should also consider calling the local pharmacies alerting them to the illegal prescriptions and asking them to confirm controlled substance prescriptions with a designated person in your office prior to filling them.

Is this employee licensed or registered under Michigan’s Public Health Code (e.g. a hygienist or registered dental assistant)?  If so, MCL 333.16222 requires you to report the employee’s conduct to the Department of Licensing and Regulatory Affairs.  The employee’s conduct is grounds for investigation, disciplinary action and a sanction being imposed on the employee’s license or registration. The only exception to this requirement to report is when the discovery of the licensee’s or registrant’s conduct occurs in the course of the dentist-patient relationship.  Therefore, if this employee is also your patient and you discovered that she was using controlled substances obtained illegally using your prescription pad and information, you would not have a duty to report.

Finally, you may consider referring this employee to the MDA’s Health and Well Being Program, the State of Michigan’s Health Professional Recovery Program or another program providing services to those addicted to controlled substances.

The article can be viewed in the Journal of the Michigan Dental Association, on page 22.

Attorneys

Daniel J. Schulte

Practice Areas

Health Care Law