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Medical Board

TOPICS OF INTEREST


The intent of this section is to provide information on issues of interest to Board licensees and the public. Information in this section will periodically change, as do issues affecting the practice of medicine in Oregon.
 
Statements of Philosophy are adopted by the Board to express its philosophy and intentions regarding the practice of medicine in the state of Oregon. The Board is not required to hold public hearings before adopting Statements of Philosophy.
 
APPROPRIATE PRESCRIBING AND SUBSTANCE ABUSE


BARIATRICS PRACTICE


CHAPERONES AND COMMUNICATION


DEATH WITH DIGNITY


EXPEDITED PARTNER THERAPY FOR SEXUALLY TRANSMITTED DISEASE


INTRACTABLE PAIN & PAIN MANAGEMENT


LIABILITY CAP FOR DONATED SERVICES
 
MEDICAL USE OF LASERS

 
MESOTHERAPY AND INJECTION LIPOLYSIS
 
MULTIPLE PRESCRIPTIONS
 
NEUROMUSCULAR BLOCKADE AND WITHDRAWING LIFE SUPPORT


PATIENT MEDICAL RECORDS

 
THE PHYSICIAN HANDBOOK

THE PHYSICIAN-PATIENT RELATIONSHIP


SEXUAL MISCONDUCT


APPROPRIATE PRESCRIBING AND SUBSTANCE ABUSE
 
Appropriate Prescribing Workshop
 
Begun in 1989 under the co-sponsorship of the Oregon Medical Board and The Foundation For Medical Excellence, this two-day seminar is designed to give physicians an update on prescribing controlled drugs and managing patients with difficult and/or chronic malignant and non-malignant pain. The curriculum includes pharmacology, the pathophysiology of pain, the psychology of pain, case studies in managing chronic pain, and a review of the current regulatory and legal climate surrounding prescribing controlled substances.
 
Topics covered include:

  • Chronic pain management.
  • Ethical considerations involved in prescribing controlled substances.
  • Current legal requirements for controlled substance management and record keeping.

The workshop also provides the practitioner with an increased self-awareness of personal strengths and weaknesses that may lead to inappropriate prescribing.
 
The program is sponsored by The Foundation For Medical Excellence (TFME) Category 1 CME credits, with the number of credit hours determined by TFME for each workshop. Because the curriculum is very interactive, only twelve registrations are accepted for each session. Participants have commented that they consider the program very worthwhile and enjoyable, and one even suggested videotaping it for distribution to hospitals for staff viewing.
 
The fee includes registration and books, plus lunches and morning and afternoon snacks for both days. Lodging, other meals, and transportation are not included.
 
Links of Interest:

  • Agenda for the Workshop.
  • E-Mail the Board's Compliance Officer for more information, including dates for the next Workshop. You may also call The Oregon Medical Board at: (971) 673-2700.
  • Registration Form in pdf format. (You must have Adobe Reader)
    The forms are in Portable Document Format (PDF). To view them, you must have Adobe Acrobat or a compatible reader on your computer. This Acrobat Reader is distributed free by Adobe for most types of computers.
 
May 1995
 
Physicians with Substance Abuse Problems
 
In the interest of the health, safety and welfare of the people of Oregon, the Oregon Medical Board is charged with protecting the public from the practice of medicine by unqualified, incompetent or impaired physicians. With this principle foremost in mind, the Board has adopted a policy of rehabilitating impaired physicians whenever possible.
 
A Diversion Program Supervisory Council has been established pursuant to ORS 677.615 for the purpose of developing and implementing a diversion program for chemically dependent licensees regulated under this chapter. The Council consists of five members who are appointed and serve at the pleasure of the Board. The term of office is two years, and Council members are eligible for reappointment.
 
The Diversion Program Medical Director is appointed by the Supervisory Council, and administers the program under the control and supervision of the Council. The Medical Director serves at the pleasure of the Supervisory Council and is an employee of the Board, and as such, reports to the Executive Director of the Board.
 
The Diversion Program, referred to as the Health Professionals Program (HPP) was established as a confidential referral resource for rehabilitation. To maintain the confidentiality of its participants, the HPP office is located in Tigard, separate from the Board's office in Portland. Its services consist of case finding, interventions, referral for an acute treatment phase, and continuing care recovery monitoring.
 
Licensees experiencing substance abuse problems who have participated in HPP have experienced a rehabilitation rate of approximately 90 percent. Experience indicates that anything short of this standard of comprehensive treatment and monitoring leads to a markedly increased failure rate.
 
Within health care delivery systems, there is acute awareness of the need to identify substance abusers. Nearly all hospitals and other delivery systems (HMO's, IPA's, PPO's, etc.) require licensees to answer personal substance use and treatment questions. State law requires that all impaired licensees be reported to the Board.
 
Licensees with substance abuse problems are encouraged by the Board to seek comprehensive treatment before becoming impaired.
 
The Board has adopted the following policy in the handling of licensees with substance abuse problems:
 
Self-referral: Licensees will be considered "true volunteers" when they have sought affiliation with HPP on their own or through an intervention of others without prior Board knowledge. The responsibility of individuals and organizations required by law to report impaired physicians may be discharged if the impaired physician enters HPP. Voluntary HPP participants require no further action relative to licensure, and they will not be reported to the Board so long as they successfully participate.
 
The Board will not be notified of the identity of voluntary participants in Diversion but will be kept informed of program information and statistics on an ongoing basis. HPP participants will not be reported to the National Practitioners Data Bank as disciplinary cases. There will be, however, a formal agreement between HPP and the licensee. This agreement is legally binding. The terms of this agreement will include standardized language acceptable to the Board as recommended by the Diversion Program Supervisory Council (see attachment for the currently accepted Agreement).
 
Board referral: At the discretion of the Chief Investigator or the Board's Medical Director in consultation with the Executive Director, licensees reported to the OMB for investigation and believed to have a substance related disorder may be offered an opportunity to participate in HPP. Disciplinary action may be utilized for licensees determined as inappropriate for HPP or requiring discipline in addition to HPP monitoring.
 
The Board accepts the Diversion Program Supervisory Council protocol for continuing care treatment and monitoring as its standard of the minimum required elements for monitoring:

  1. At least one weekly counseling meeting (individual or group) for the first two years of participation.
  2. A minimum of quarterly meetings with an assigned HPP monitoring consultant.
  3. A minimum of 25-30 random urine drug screens per year for the first two years.
  4. Individual counseling if recommended by the primary treatment provider or the therapy team.
  5. Treatment plan changes will be made in consultation with all therapy providers and the Diversion Program Supervisory Council when necessary.
  6. The Diversion Program keeps the Board apprised of its policies, procedures and protocols.
  7. HPP participants will be reported to the Board in accordance with the Diversion Council protocol for Relapse Management or upon failure to successfully complete the HPP Program.

Not all licensees with a chemical dependency problem will avail themselves of HPP; those who choose not to participate or do not comply with the terms of the agreement with HPP are subject to denial of license or discipline pursuant to ORS 677.190.
 
Chemical dependency does not have to be a condition that destroys a professional's career, personal life and professional standing. When in remission, chemical dependency does not adversely affect a physician's ability to practice medicine. With proper treatment and follow-up, chemically dependent licensees can continue their practice, often virtually uninterrupted.
 
In situations where a disciplinary action is necessary, it is often appropriate to reinstate a licensee as soon as their condition warrants it. The OMB has found that with proper in-patient treatment and good monitoring, a rehabilitation rate of approximately 90 percent is possible.
 
As the above policy indicates, self-referral is vastly superior to disciplinary action. By whatever method necessary, the Board strives to assure that licensees with chemical dependency problems receive appropriate treatment. In its effort to both protect the public and rehabilitate physicians, the Board encourages all licensees and their organizations to promote early intervention.
 
Scope of Practice
 
The Oregon Legislature has given the Oregon Medical Board the power to exercise general supervision over the practice of medicine and podiatry within the state. Increasingly health professionals, some licensed by this Board and some by other agencies, are seeking to extend the scope of their practice and authority. While the ultimate decision on scope of practice issues generally rests with the legislature, the Board assists lawmakers by providing complete and accurate information upon which to base decisions.
 
The following factors are considered when the Board reviews scope of practice questions:

  • Public safety must be the primary focus;

  • The patient should receive the same level of care and informed consent regardless of who provides the care;

  • Fully qualified providers must perform procedures, whether those providers are physicians or other health care professionals. With extensive years of medical training, physicians have broad authority and considerable latitude in the scope of their medical practice. Health care providers with less formal education need a clearly defined scope of practice in keeping with Oregon statutes.

When considering scope of practice changes for professions or individuals under its own jurisdiction, the Board considers the following:

  1. Education: Has the provider received education from an approved institution with national standards and what is the core education in terms of residency, post-graduate education and continuing education courses?
  2. Experience: What experience has the practitioner had recently relative to the proposed expansion in scope of practice?
  3. Level of supervision: When health care professionals work under supervision, the Board expects the supervisor to be identified in advance and to be skilled in the procedure he/she is supervising. The supervisor must also assume responsibility for delegation of duties.
  4. Back-up assistance available: Before undertaking a scope of practice change a functional back-up system must be identified in advance, with the availability of review similar to hospital peer review.
  5. Demonstration of skill level: In assessing ability, the Board looks for proficiency demonstrated under supervision, documented by an unbiased third party. There needs to be verified outcomes following an appropriate number of procedures over a given period of time.

Prior to the addition of a diagnostic or therapeutic technique to a health practitioner's scope of practice under any jurisdiction, the Board believes that the following questions should be answered in addition to the above outlined standards:

  • What is the current standard of practice and is the skill being added appropriate to the professional background?

  • What background is sufficient to prepare the professional to perform a given procedure safely?

  • Does the individual have adequate experience to understand appropriate indications and handling of complications?

The citizens of Oregon expect and deserve the same high quality care for the same medical service rendered irrespective of the background, training, skill and knowledge of the health care provider. It is on this basis that the Oregon Medical Board carefully reviews questions of expanded scope of practice for health care providers.
 
July 1999
 
 
BARIATRICS PRACTICE

 
OMB ADMINISTRATIVE RULES ON BARIATRICS PRACTICE
 
Schedule II Controlled Substances - Bariatrics Practice
 
847-015-0005 (1) A physician shall not utilize a Schedule II controlled substance for purposes of weight reduction or control.
 
(2) A violation of any provision of this rule, as determined by the Board, shall constitute Unprofessional Conduct as the term is used in ORS 677.188(4)(a),(b), or (c), whether or not actual injury to a patient is established.
 
Schedule IV Controlled Substances - Bariatrics Practice
 
847-015-0010 (1) A physician shall not utilize a Schedule IV controlled substance for purposes of weight reduction, other than in accordance with federal Food and Drug Administration (FDA) product guidelines in effect at the time of utilization and with all the provisions of this rule.
 
(2) A physician may utilize a Schedule IV controlled substance for purposes of weight reduction in the treatment of Exogenous Obesity in a regimen of weight reduction based on caloric restriction, behavior modification and prescribed exercise, provided that all of the following conditions are met:
 
(a) Before initiating treatment utilizing a Schedule IV controlled substance, the physician determines through review of the physician's own records of prior treatment, or through review of the records of prior treatment which another treating physician or weight-loss program has provided to the physician, that one of the following conditions exist:
 
(A) Patient's body mass index exceeds 30 Kg/M sq; or
 
(B) Patient's body mass index exceeds 27 Kg/M sq and the excess weight represents a threat to the patient's health (as with hypertension, diabetes, or hypercholesterolemia.)
 
(b) Before initiating treatment utilizing a Schedule IV controlled substance, the physician obtains a thorough history, performs a thorough physical examination of the patient, and rules out the existence of any recognized contraindications to the use of the controlled substance to be utilized.
 
(3) Continuation of Schedule IV designated as FDA short term use controlled substances beyond three (3) months requires documentation of an average two (2) pound per month weight loss during active weight reduction treatment, or documentation of maintenance of goal weight. Use of Schedule IV controlled substances with FDA approval for bariatric therapy and designated for long term use where FDA guidelines are followed may also be used beyond three months.
 
(4) A violation of any provision of this rule, as determined by the Board, shall constitute Unprofessional Conduct as the term is used in ORS 677.188(4)(a), (b), or (c), whether or not actual injury to a patient is established.
 

 
CHAPERONES AND COMMUNICATION: KEYS TO AVOIDING TROUBLE

By Michael Sherman, Chief Investigator
and
Philip Parshley, MD, Medical Director

Recently the Oregon Medical Board has received and investigated an increasing number of complaints alleging improper examination or improper touching during an examination. These complaints typically allege sexual or voyeuristic behavior on the part of the practitioner. An analysis of these complaints shows that most of them are preventable. Complaints of improper examination tend to have the following elements in common:

  • The practitioner is male, and the patient is female and typically an adult.
  • The patient is not familiar with the practitioner.
  • The examination is an intimate one such as a breast, rectal, or gynecological exam requiring the patient to disrobe.
  • No chaperone is present.
  • The patient is either surprised by the practitioner’s conduct in the examination, or is unaware of what the examination involves.

The last point is the key to many of these situations. Medical practitioners should keep in mind that what they see as a routine examination may be far from routine for the patient.
 
Apprehension a major factor
 
Patients facing intimate examinations can be apprehensive and embarrassed. This can be aggravated by an unfamiliar practitioner, unfamiliar surroundings, and uncertainty about the nature of and reason for the examination.
 
In turn, aggravated apprehension increases the risk that the person will experience an anomalous reaction to the examination. Investigation has shown that most of these complaints involved a patient's misinterpreting a practitioner’s actions during an examination, and overreacting because of heightened apprehension.
 
Chaperones strongly recommended
 
The American Medical Association Ethics Policy on the Use of Chaperones During Physical Exams1 (a careful reading of which shows that it is as much about communication and consideration as it is about chaperones) speaks to preventing this problem.
 
The policy states:

From the standpoint of ethics and prudence, the protocol of having chaperones available on a consistent basis for patient examinations is recommended. Physicians aim to respect the patient’s dignity and to make a positive effort to secure a comfortable and considerate atmosphere for the patient--such actions include the provision of appropriate gowns, private facilities for undressing, sensitive use of draping, and clear explanations on various components of the physical examination. A policy that patients are free to make a request for a chaperone should be established in each health care setting. This policy should be communicated to patients, either by means of a well displayed notice or preferably through a conversation initiated by the intake nurse or the physician. The request by a patient to have a chaperone should be honored.

The policy goes on to recommend that the chaperone be "an authorized health professional" whenever possible, and that the chaperone be trained for the role and understand the importance of confidentiality. A time for confidential physician-patient discussion without the presence of the chaperone should be arranged, especially for sensitive issues.1
 
The Oregon Medical Association's Guidelines for Physicians—Sexual Issues 2 states that chaperones "…are encouraged, but by no means required," but that a request for a chaperone should never be refused. The OMA further states that patients should be asked if they want a chaperone before being asked to disrobe, and recommends that physicians strongly consider using chaperones with the very young, the elderly, those belonging to certain cultural ethnic groups, and those new to the physician.
 
Under the "Safeguards for the Physician" section of its guidelines, the OMA recommends the use of “draping that would be considered appropriate by even the most modest patient.”
 
OMA also suggests training staff members to recognize and neutralize potentially compromising situations. The astute nurse or assistant can spot patients who should be provided a chaperone, either for their own comfort or the physician’s protection. If the physician feels that the patient is even the least bit uncomfortable, or if the physician feels uncomfortable, a chaperone should be arranged.
 
While the AMA and OMA policies mentioned above are directed primarily at doctors, not all sexual misconduct complaints coming to the OMB involve physicians. The Board cannot overemphasize the need for all licensees—physicians, podiatrists, acupuncturists, and physician assistants alike—to follow these guidelines.
 
Respecting the patient’s dignity and making an effort to provide a considerate atmosphere enhances the quality of any examination. Especially where the examination involves an intimate area of the body, adherence to this policy will go a long way toward reducing the patient’s apprehension and embarrassment.
 
Communication vital
 
Carefully explaining the nature of the procedure and how it relates to the complaint helps further reduce both the patient’s concerns and the likelihood of a negative reaction to the exam, especially if the patient may not expect it to be part of the evaluation. For instance, the patient being examined by a rheumatologist for bone and joint complaints would not expect a breast examination, and could experience a negative reaction unless the doctor explains that the breasts may contain a cancer leading to osseous metastases. 
 
To summarize, good communication and careful respect for patient dignity will greatly reduce the likelihood that the patient will have an unexpected or anomalous reaction to something the practitioner does during the examination. The net result will be examinations that meet the expectations of both the patient and the practitioner, and that are ultimately more successful.  
 
1 AMA Policy E-8.21 on Use of Chaperones During Physical Exams, adopted June 1998, www.ama-assn.org/ama/pub/category/2503.html under Code of Ethics.  
 
2 Guidelines for Physicians—Sexual Issues, www.ormedassoc.org/pub/guidelines-sexual%20issues.pdf
 
 
DEATH WITH DIGNITY
 
OMB ADMINISTRATIVE RULES ON PHYSICIAN ASSISTED SUICIDE

Physician Assisted Suicide
 
847-010-0081 A licensee's compliance with ORS 127.800 et seq, shall not be considered a violation of ORS 677.190 (1), unprofessional or dishonorable conduct, as defined in ORS 677.188 (4)(a), (b), or (c).
 
Attending physicians prescribing medications to physician assisted suicide patients
 
 
847-015-0035 Attending physicians prescribing medications pursuant to ORS 127.800 - 127.897 shall:
 
(1) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort, provided the attending physician is registered as a dispensing physician with the Oregon Medical Board, has a Drug Enforcement Administration (D.E.A.) certificate, and complies with the provisions of ORS 677.089, OAR 847-015-0015 and OAR 847-015-0025; or
 
(2) With the patient's written consent:
 
(a) Contact a pharmacist, and inform the pharmacist of the purpose of the prescription, and
 
(b) Deliver the written prescription personally or by mail to the pharmacist who will dispense the medications to either the patient, the attending physician, or an expressly identified patient's agent.
 
 
EXPEDITED PARTNER THERAPY
 
OMB STATEMENT OF PHILOSOPHY ON EXPEDITED PARTNER THERAPY
 
The Oregon Medical Board (OMB or “Board”) recognizes that the adequate treatment of sexually-transmitted chlamydia and gonorrhea infections has always been a difficult public health issue. When Chlamydia and gonorrhea are identified in a patient, the adequate treatment and prevention of recurrence in the patient often depends upon treatment of the patient’s partner or partners, who may not be available or agreeable for direct examination.
 
The OMB recognizes that it is a common practice for healthcare practitioners to provide antibiotics for the partner(s) without prior examination. This is known as Expedited Partner Therapy (EPT) and, as such, is encouraged by the Oregon Department of Human Services (DHS) Office of Family Health, and the U.S. Centers for Disease Control and Prevention (CDC) in situations where a face-to-face examination of the partner by a physician is unlikely or impractical.
 
While this is not ideal in terms of the diagnosis and control of chlamydia and gonorrhea, the OMB recognizes that this is often the only reasonable way to access and treat the partner(s) and impact the personal and public health risks of continued, or additional, chlamydial and gonorrheal infections.
 
When using EPT, the OMB urges practitioners to use all reasonable efforts to assure that appropriate information and advice are made available to the absent, treated third party or parties.
 
The OMB emphasizes that the use of EPT for conditions other than sexually transmitted disease caused specifically by chlamydia or gonococcus would be considered unprofessional conduct that might lead to disciplinary action. This is based on the Board’s previous determination that physicians should not write prescriptions unless they have conducted an adequate encounter with the patient, and documented this encounter in the medical record.
 
----Adopted April 13, 2007
 
 
INTRACTABLE PAIN AND PAIN MANAGEMENT
 
OMB STATEMENT OF PHILOSOPHY ON PAIN MANAGEMENT

The OMB urges the use of effective pain control for all patients, irrespective of the etiology of their pain. This includes, but is not limited to, pain derived from malignancies, acute pain resulting from injuries, acute illnesses or invasive procedures and chronic pain of diverse etiology. Management of pain is considered to be within the scope of practice of most physicians. It is the expectation of the Board that physicians will be knowledgeable or become knowledgeable in treatment of pain for problems that are within their scope of practice.
 
Physicians choose not to provide pain care to patients for the following reasons: 1) concern about causing addiction; 2) lack of knowledge about pain management techniques and pain medication pharmacology; 3) fear of scrutiny and discipline by regulatory agencies; 4) challenges in determining the appropriate treatment; 5) inadequate compensation. The Board does not consider any of the reasons above to be legitimate excuses for a physician to exclude treatment of pain from their clinical practice. The Board expects that physicians will treat pain within the scope of their practice or refer when appropriate.
 
The treatment of acute pain caused by injuries, acute illnesses or interventional procedures requires aggressive management and frequent feedback from the patient regarding the adequacy of the pain control prescribed. The potential for addiction is very low when short courses of opioids are used to treat acute, self -limited pain. Skillful pain management techniques, including oral, parenteral and, when available, regional pain management techniques can achieve maximum patient comfort and may reduce the total amount of opioids required. The OMB encourages physicians to become well informed in acute pain management and to hone their skills in the latest techniques for control of these acute, self-limited episodes of pain.
 
Management of the patient with a chronic pain syndrome requires different techniques but a similar degree of skill. In 1995, the Oregon Legislative Assembly passed ORS 677.470-485, commonly referred to as the Intractable Pain Act. This act allows a physician to prescribe or administer controlled substances to a patient diagnosed with a condition causing intractable pain without fear of sanction from the Oregon Medical Board, so long as that physician complies with the provisions of this statute. Both this statute and its facilitating Oregon Administrative Rule (847-030-0015), as revised in 2004, assure that patients with chronic pain syndromes: (1) receive careful assessment, documentation, and management of the pain; (2) are informed of the risk of taking the controlled substances used in the course of their treatment; and 3) acknowledge receipt of this information by signing the approved material risk form*. Although the 2003 Legislature amended the Act to remove a stipulation that all chronic pain patients receive an “evaluation by one or more physicians specializing in the treatment of the body area, system or organ perceived as the source of the pain”, the OMB notes that the accepted standard of care includes such consultations (evaluations) when the diagnosis or appropriate treatment is uncertain or when the current treatment is not producing expected results.
 
Physicians should make every effort to relieve the pain and suffering of their terminally ill and dying patients. The OMB believes this effort is the physician’s primary obligation to these patients. Pain control in terminally ill/dying patients may require doses of opioids well above the usual amounts administered intermittently or continually. The natural dying process may involve declining blood pressures, decreasing respirations and altered levels of consciousness. When these patients continue to experience pain, opioids should not be withheld on the basis of physiologic parameters or from fear of hastening death.
 
Appropriate management of all of these types of pain is the treating physician’s responsibility. Although there is often a significant amount of latitude regarding the amount of medication required for control of the pain, the Board considers under treatment as well as over treatment to be below the standard of care.
 
-- Revised 7/9/04
 
* A Board approved example of a Material Risk Notice (MRN) form appears on the Board’s web site. www.oregon.gov/OMB/forms
 
FALL 2005 OMB NEWSLETTER ARTICLE
 
"Prescribing Poses a Plethora of Problems, Pitfalls and Perils"
 
By Philip Parshley, M.D.
Medical Director,
Oregon Medical Board
 
            Prescribing medication is an essential task within a physician’s practice. But the fast pace of scientific progress, societal problems of drug addiction and abuse, and a multi-level myriad of rules and regulations make it a problematic task as well.
 
Multiple prescriptions and the Law
 
            Recently, there has been some confusion regarding prescriptions of Schedule II controlled substances, particularly with regard to federal regulations. The federal Controlled Substances Act (CSA) specifically prohibits refilling prescriptions for Schedule II drugs, but until recently it has been accepted that multiple Schedule II prescriptions may be written and dated on the same day with the additional written comment, “Do Not Fill Until xx/xx/xx (date)”. By advancing the date by one month in sequence on these several prescriptions a healthcare provider, licensed to prescribe Schedule II medications, may provide a one month supply for several months in a row.
 
            This technique was used for reliable individuals who were on stable doses and who were perhaps restricted by insurance rules that allowed only one month supply of medications at a time. The U.S. Drug Enforcement Administration (DEA) in an August 2004 “Frequently Asked Questions” document stated that this was acceptable.
 
            However, in November 2004 the DEA published in the Federal Register a retraction of the previous acknowledgment of that process, and opened the way for public comment. This made the care of chronic pain patients more difficult and more expensive for both the public and healthcare providers. Because of many protests, public commentary was sought, but, after the DEA received many opinions against its November 2004 ruling, it reconfirmed its November action. This was based on the overall rule that refills of Schedule II drugs are forbidden, and that permitting this alternative is “tantamount to writing a prescription authorizing refills of a Schedule II controlled substance.”
 
            Federal authorities explained that such an action would conflict with a fundamental purpose of the federal statute – preventing diversion of controlled substances for unlawful purposes. Authorities have long felt that physicians who unlawfully dispense controlled substances often do so by writing multiple prescriptions for future use. This issue may not be over yet. Stay tuned for now but don’t use this technique.
 
It is well to note that in situations where federal laws or regulations conflict with state laws or regulations, the more stringent rule or rules are to be followed – particularly in regard to using, prescribing and administering controlled substances.
 
Oregon requires CME for pain prescribing
 
            An Oregon state law which takes effect January 2, 2006 requires that certain licensees of the OMB must complete continuing medical education (CME) in pain management. The OMB is writing Oregon Administrative Rules (OAR) to require that all licensees complete mandatory CME in the subject of pain management and/or the treatment of terminally ill and dying patients.
 
            The CME includes a one-hour pain management course specific to Oregon, provided by the Pain Management Commission in the Department of Human Services[1], and six hours of CME in pain management and/or treatment of terminally ill and dying patients. Any combination of these subjects may be used.
            Licensees holding the following types of licenses are not required to participate: lapsed licenses; telemedicine licenses; teleradiology licenses.
 
            The 2001 Legislature adopted the new law, and health care professionals subject to these CME requirements have 24 months from the effective date (January 2, 2006) to complete the required coursework. The required CME must be completed after January 1, 2000 and before January 2, 2009. All licensees required to obtain this CME must have available documentation of completion, or face disciplinary action by the OMB.
 
            Other organizations offer pain management courses for Oregon providers seeking to comply with the six-hour CME requirement. The University of California, San Diego (UCSD) offers six-hour and 12-hour programs in pain management, designed to comply with California’s pain management education law. The UCSD courses are available on DVD for $150 (six hours) or $200 (12 hours)[2].
 
            The American Medical Association (AMA) offers two free, three-hour courses as PDF downloadable files to all health care providers. The courses are in management of persistent non-malignant pain, cancer pain and end-of-life care.[3] The AMA has a 12-hour course available on line as well, the last six hours of which is included in the above downloadable programs.
 
            Physician assistants are reminded that they must complete all required CME – including pain management – in order to qualify for Schedule II prescribing privileges.
 
Chronic pain prescribing: Ongoing Issues
 
            Oregon law also requires attending physicians to provide, and patients to sign, Material Risk Notices (MRN) if controlled substances are prescribed and/or administered for chronic intractable pain. As stated in OAR 847-015-0030, the notices should include but not be limited to the following: diagnosis, controlled substance and/or group of controlled substances to be used, anticipated therapeutic results, and alternatives to controlled substance therapy.
 
            In addition, the MRN should inform patients of potential side effects of medication on various systems of the body, possible allergic reactions, impairment and addiction, interactions with other drugs and withdrawal precautions. The MRN also should contain patient-initiated, achievable goals of treatment other than simply control of pain. Progress in achieving these goals provides valuable measurement of the efficacy of the treatment program. Without positive results, the planned treatment should be re-evaluated.
 
            An “approved” example of a Material Risk Notice is available on the Board’s Website, www.oregon.gov/OMB, under “Forms.”
 
            When tracking prescribing of controlled substances, using more than one tracking method is recommended. Flow sheets, organized copies of prescription pads and some electronic records used in concert will help ensure thorough and accurate records of prescriptions for controlled substances used to treat pain.
 
            All healthcare professionals should recognize “red flags” of controlled substance abuse – seeking and/or diverting drugs for unlawful and non-therapeutic purposes. In addition poor or nonexistent prescription tracking, prescribing or administering drugs to family members or self, inadequate security when drugs are kept at practice locations, are grounds for suspending, revoking or refusing to issue licenses, under ORS 677.190 (7), (24) and (25).
 
#          #          #
 
[1] www.oregon.gov/DHS/pain
[2] www.ab487.com/program/misc/splash.htm
[3] www.ama-assn.org/ama/pub/category/13494.html
 
 
WINTER/SPRING 2002 OMB NEWSLETTER ARTICLE
 
Pain Management "Don't prescribe less - chart better"
 
Susan W. Tolle, M.D. and Susan E. Hickman, Ph.D.
 
During the coming months, Oregon is expected to be in the media spotlight on the issue of prescribing controlled substances, particularly for dying patients.
 
In the fall of 2001, U.S. Attorney General John Ashcroft issued an opinion that the federal Controlled Substances Act prohibits physicians from prescribing medication under the state of Oregon's Death With Dignity Act.
 
Oregon's state Attorney General Hardy Myers filed suit in federal court, challenging this opinion. Hearings are expected to be held in the spring of 2002.
 
Increased media attention on prescribing privileges may potentially heighten physician concerns about the prescribing of controlled substances. In other states, such as Utah, the number of morphine prescriptions decreased following civil investigations and the conviction of a physician for the alleged morphine overdoses of several patients. Many believe that the specter of investigation can deter some physicians from appropriate prescribing. Nurse practitioners, who recently gained Schedule II prescribing privileges, also may be susceptible to such pressures.
 
Oregon data highlights this potential. Oregon Health & Science University's (OHSU) Center for Ethics in Health Care has tracked a range of markers in end-of life care in Oregon for more than a decade from a variety of sources. These include:

  • Declining in-hospital death rates;
  • The rising rates of advanced-care planning;
  • The use of Physician Orders for Life Sustaining Treatment (POLST);
  • The increasing rates of hospice referral; and
  • The overall rates of morphine use.

These markers of quality end-of-life care have shown steady improvement, with one exception. Family reports of moderate or severe pain in dying hospitalized patients increased in late 1997. Family reports of pain did not change for loved ones dying in long-term care facilities or at home.
 
In 1998, we sent a survey* to physicians and nurses throughout Oregon, asking them to help us better understand the factors that contributed to this finding. Although results suggest that respondents viewed more than one factor as responsible for the increase in family reports of pain, two-thirds thought physician prescribing of inadequate pain medication was a partial explanation. Physicians who thought reduced physician prescribing was a partial factor rated fears of the Oregon Medical Board (OMB) and the U.S. Drug Enforcement Agency (DEA) as the most likely explanations for decreased physician prescribing.
 
It is important to note that the OMB's position is that physicians should make every effort to relieve the pain and suffering of their dying patients and that narcotics should not be withheld because of a fear of hastening death. In fact, the OMB has disciplined a physician for inadequate use of pain-relieving medications in dying patients.
 
In light of upcoming events, these data raise grave concerns and call on all of us to take a more active role in public discussions about pain medication. We must work together to ensure that patients, particularly those who are dying, will continue to receive appropriate medication to control their pain and suffering regardless of what is occurring in the political arena.
 
The message we share with all of our colleagues statewide is simple: Don't prescribe less for dying patients and those with terminal diseases - chart better. We urge you to resist the fear of possible negative consequences to prescribing controlled substances when addressing suffering in the dying. Instead, spend a few extra minutes to clearly document the need for medication in the patient's medical record. For example, in a patient with metastatic prostate cancer, you could document your orders to increase pain medication with the following: "Patient has metastatic cancer to the bone and bone pain has substantially increased. Morphine doubled to control pain." You could use this approach for other symptoms (e.g. dyspnea) that require controlled substances for optimal symptom alleviation. The brief progress note should clearly indicate your intention to control symptoms with the order to administer or adjust the dosage of a controlled substance.
 
The best defense is a good offense. Careful documentation adds clarity to any questions regarding your motives in prescribing controlled substances. Thorough documentation, rather than a change in prescribing practices, is an appropriate response for all health care professionals in Oregon. This is particularly important in a climate in which the media may soon bring its spotlight back to the issue of controlled substances and seriously ill patients.

* Hickman SE, Tolle SW, Tilden VP. Physicians' and nurses' perspectives on increased
family reports of pain in dying hospitalized patients. J Palliat Med 2000; 3(4):413-18.
FALL 1998 OMB NEWSLETTER ARTICLE
 
Pain Management in the Dying: Successes and Concerns
 
By Susan Tolle, MD and Kathleen Haley, JD
 
Physicians in Oregon have reason to be proud of the tremendous gains we have made in end of life care. We lead the country in advance care planning and in ensuring respect for the rights of the terminally ill to limit life-sustaining treatment.1 We have distributed over 170,000 of the neon pink Physician Orders for Life Sustaining Treatment (POLST) forms which are now used by most Oregon hospice programs and long term care facilities.
 
Most people want to die at home, and we are respecting people's choices more often. Oregon has the lowest rate of in-hospital deaths of the 50 states. Only 31% of Oregonians now die in an acute care hospital.
 
We are referring terminally ill patients to hospice more frequently (although often late in the course of illness). Almost a third of all Oregonians now die with the support of home hospice, and the number continues to rise.
 
While we are doing well in respecting wishes about the level of aggressiveness of care in life's final months, preliminary findings from a study done by the OHSU research team of Susan Tolle, MD, Virginia Tilden, DNSc and Anne Rosenfeld, RN, PhD, reveal a worrisome trend. The study yields data from interviews with 475 family members listed as the informant from a stratified sample of recent Oregon death certificates. Family members were called two to three months after their loved one died and asked about barriers that the patient and family faced in their loved one's final months. The statewide study focused on identifying the differences in barriers to care of the dying by setting (home, nursing home, and acute care hospital).
 
Family members were asked about such issues as respect for refusal of treatment, pain and suffering, and communication and logistics. They were asked to specifically describe the degree of pain their loved one experienced during the final week of life. The team interviewed families each month throughout 1997. The reported rate of pain during most of 1997 was similar, whether the loved one died at home, in a nursing home, or in an acute care hospital.
 
Families reported relatively constant levels of moderate to severe pain during their loved one's final week of life, with one exception. During the final months of 1997, families reported higher rates of moderate to severe pain for those dying in acute care hospitals throughout Oregon. There was no increase in reported rates of pain for the final week of life for those dying at home or in a long-term care facility.
 
These families cannot tell the researchers cause and effect, only that the trend as perceived by families occurred. When a loved one died in an acute care hospital in late 1997, families more often reported moderate to severe pain during the final week of life. The data revealed that this is a statewide trend, not isolated to one county or health system.
 
While theories abound, the research team cannot learn the cause from the family interview data. Possible explanations range from higher family expectations of our ability to manage pain following the intensive media campaign on physician assisted suicide, to reduced physician prescribing or reduced nurse administration of controlled substances.
 
Are physicians in hospitals reducing prescriptions for pain and symptom relief? If so, we need to explore the reason why. Some people have suggested that physicians prescribe less morphine and other controlled substances in times of greater scrutiny or under threat of disciplinary action.2 During late 1997, as physician assisted suicide was first legalized, cameras were eagerly looking for the first case and the DEA was talking of possible sanctions.
 
Regardless of the cause, the authors and the Board invite all physicians and hospitals to reexamine their practices. We need to consider the reports of moderate to severe pain by family members and determine if a different response is called for. We need to examine the increased reports of pain for those dying in acute care hospitals during the last quarter of 1997 and call on physicians to review both their palliative care practices and the timeliness of their hospice referrals.
 
The Oregon Medical Board views both under-prescribing and over-prescribing of narcotics and other controlled substances with equal seriousness, and is concerned about the trend found by the OHSU research team. The OMB reemphasizes its position on pain and symptom management in the care of the dying. It strongly endorses quality palliative care practices for the care of the dying, and understands that in some cases the amount of controlled substances required to control the patient's suffering may shorten life.
 
The Board encourages consultation with hospice and palliative care experts when needed, and expects appropriate documentation in the use of controlled substances. The Board investigates physicians for grossly under-treating pain of the dying with the same interest and thoroughness as those who over prescribe controlled substances. At times, individually tailored educational programs are needed and will be required.
 
The Board encourages you to educate your colleagues who may be grossly under treating the suffering of their dying patients, and to work with your hospitals and health systems to ensure that patients' suffering in the final weeks of life is properly treated. If those efforts are unsuccessful, then the Medical Practice Act requires physicians to report those colleagues who are practicing in an unprofessional or negligent manner.
 
1 Tolle, S. W. Care of the Dying; Clinical and Financial Lessons From the Oregon Experience. Annals of Internal Medicine 1998; 128:567-8.
 
2 Field, M. J., Cassel, C. K. Approaching Death: Improving Care at the End of Life. Washington, DC. National Academy Press, 1997.

OMB ADMINISTRATIVE RULES ADDRESSING INTRACTABLE PAIN
 
Written Notice Disclosing the Material Risks Associated with Prescribed or Administered Controlled Substances for the Treatment of "Intractable Pain."
 
847-015-0030
Written Notice Disclosing the Material Risks Associated with Prescribed or Administered Controlled Substances for the Treatment of “Intractable Pain.”
 
(1) Controlled substances may be prescribed for long term treatment of “intractable pain”, ORS 677.475 (1). The attending physician records must contain the attending physician’s examination, diagnosis and any other supporting diagnostic evaluations and other therapeutic trials, including records from previous providers. If there is a consulting physician, written documentation of his/her corroborating findings, diagnosis and recommendations shall be included in the record.
 
(2) Before initiating treatment of “intractable pain” with controlled substances, the attending physician shall discuss with the patient the material risks associated with the prescribed or administered controlled substances. Following the discussion the patient may request further explanation prior to signing the material risks notice. Following completion of the discussion, the attending physician shall provide to the person and the person shall sign a written notice of the material risks associated with the prescribed or administered controlled substances to be prescribed, ORS 677.485.
 
(3) The material risk notice should include but not be limited to:
(a) The diagnosis;
(b) The controlled substance and/or group of controlled substances to be used;
(c) Anticipated therapeutic results;
(d) Alternatives to controlled substance therapy; and
(e) Potential side effects (if applicable):
(A) General;
(B) Central Nervous System;
(C) Gastrointestinal;
(D) Respiratory;
(E) Dermatologic, and
(F) Other.
(f) Allergy Potential;
(g) Interaction/Potentiation of other medications;
(h) Potential for dose escalation/tolerance;
(i) Withdrawal precautions;
(j) Potential for dependence and addiction;
(k) Potential for impairment of judgment and/or motor skills;
(l) Satisfaction with or desire for more explanation; and
(m) Patient signature (dated).
 
(4) The material risk consent form will be maintained as a permanent component of the patient record as shall documentation of long term follow-up to demonstrate the continued need for this form of therapy, ORS 677.480(1)(3). A dispensing record of the amount and dose of the prescribed or administered controlled substances shall be maintained as part of the patient record.
 
OMB ADMINISTRATIVE RULES ADDRESSING PAIN MANAGEMENT EDUCATION
 
847-010-0100
Mandatory Pain Management Education
(1) All licensees of the Oregon Medical Board, except the licensees listed in section (2) of this rule, will complete mandatory continuing medical education (CME) in the subjects of pain management and/or the treatment of terminally ill and dying patients as follows:
(a) A one-hour pain management course specific to Oregon provided by the Pain Management Commission of the Department of Human Services; and
(b) A minimum of 6 (six) continuing medical education credit hours in the subjects of pain management and/or the treatment of terminally ill and dying patients.  Any combination of CME coursework focusing on pain management and/or treatment of terminally ill and dying patients may be used to fulfill this requirement.
(2) Licensees holding the following types of licenses shall not be required to meet this requirement:
(a) Lapsed license;
(b) Telemedicine license; or
(c) Teleradiology license.
(3) The required CME must be completed after January 1, 2000 and before January 2, 2009.
(4) Licensees must be prepared to provide documentation of CME if requested by the Board.
(5) All applicants granted a license after January 2, 2009, excepting those with a type of license listed in Section (2), must obtain the required CME coursework within twelve months of the date the Board granted licensure.
 
ANSWERS TO FREQUENTLY ASKED QUESTIONS ON CME REQUIREMENTS FOR PAIN MANAGEMENT
 
1.  What continuing medical education (CME) is acceptable to satisfy the requirements of ORS 409.560 pertaining to pain management education?
           
Answer: Any 6 hours of CME on pain management or end-of-life care obtained after 2000.
 
2.  How do I get credit for the one (1) hour pain management course specific to Oregon provided by the Pain Management Commission?
 
Answer: You can obtain that (1) one hour by going to www.oregon.gov/DHS/pain and watching the video at that site. At the completion of the video, follow the directions online.
 
3. When does the CME have to be completed?
 
Answer: By January 2, 2009.
 
4. What do I do with the documentation of having completed this pain management CME?
 
Answer: Keep it in safe place so you can demonstrate your completion of the requirement if you are challenged. Please DO NOT send it to the OMB!
 
5. Which licensees of the OMB are required to complete these requirements?
 
Answer: All licensees under the OMB are required to obtain the 6 hours of CME on pain management or end-of-life care, plus the 1 hour of pain management CME specific to Oregon.
 
6. Where can I read the Board’s administrative rules on pain management education?
 
Answer:  The full text of the rules are available at OMB Administrative Rules Addressing Pain Management.
 
MEDICAL USE OF LASERS
 
OMB STATEMENT OF PHILOSOPHY ON MEDICAL USE OF LASERS (2002)
 
The U.S. Food and Drug Administration (FDA) regulates the sale of lasers under the Centers for Devices and Radiological Health. It is a device that only a licensed practitioner can purchase.
 
Destruction, incision, ablation or the revision of human tissue by use of a laser is surgery.
 
Complications from the medical use of lasers can include visual impairment, blindness, inflammation, burns, scarring, hypopigmentation and hyperpigmentation.
 
The Oregon Medical Board adopts the position that the medical use of lasers is the practice of medicine as defined by ORS 677.085:
 
“(3) Offer or undertake to perform any surgical operation upon any person.
 
“(4) Offer or undertake to diagnose, cure or treat in any manner or by any means, methods, devices or instrumentalities, any disease, illness, pain, wound, fracture, infirmity, deformity, defect or abnormal physical or mental condition of any person.”
 
Physicians using lasers should be trained appropriately in the physics, safety and surgical techniques of using lasers and intense pulsed light devices, as well as pre- and post-operative care. Any physician who delegates a procedure using lasers or intense pulsed light devices to a non-physician should also be qualified to do the procedure themselves by virtue of having received appropriate training in physics, safety and surgical techniques using lasers and intense pulsed light devices, as well as pre- and post-operative care.
 
Any allied health professional employed by a physician to perform a laser or intense pulsed light procedure should have received documented training and education in the safe and effective use of each system, and may carry out specifically designed laser procedures only under direct physician supervision, and following written guidelines and/or policies established by the specific site at which the laser procedure is performed.
 
The ultimate responsibility for performing any procedure lies with the physician. The supervising physician should be on-site, immediately available, and able to respond promptly to any questions or problems that may occur while the procedure is being performed.
 
The guiding principle for all physicians is to practice ethical medicine with the highest possible standards to ensure the best interest and welfare of the patients.
 
- Adopted by the Board January 18, 2002
 
 
 
 
MESOTHERAPY AND INJECTION LIPOLYSIS
Statement of Philosophy
 
Background
 
Treatments most properly called “injection lipolysis” have been commonly associated with the term “mesotherapy” to reduce or eliminate unwanted local accumulations of fat. Various terms for treatments that purport to “dissolve” fat seem to be used interchangeably, although “mesotherapy” has gained prominence in the public vernacular.
 
Injection lipolysis is typically done with trade-named products such as Lipodissolve™ and Lipostabil™ or with proprietary formulations provided by compounding pharmacies. The one common ingredient in all injection lipolysis formulations is phosphatidylcholine (PPC).
 
In the United States, sodium deoxycholate (DC), a constituent of bile, is a second major ingredient used to keep the PPC soluble and in an injectable form without precipitating out of solution.
 
Phosphatidylcholine (PPC) and sodium deoxycholate (DC) are both phospholipids, emulsifiers, and surfactants. PPC is the most abundant phospholipid component of cell membranes, a precursor to acetylcholine, and a constituent of lipoproteins. DC is a constituent of bile. Both substances are naturally present in the human body.
 
In contrast to injections into the mesoderm, injection lipolysis treatments are delivered into the subcutaneous fat. In both cases, the depth of injection is critical to prevent damage to fascia. It has been hypothesized that treatment with PPC and DC reduces subcutaneous fat by adipocyte necrosis due to direct toxic or surfactant effects.
 
Phosphatidylcholine (PPC) and sodium deoxycholate (DC) are both approved by the U.S. Food and Drug Administration (FDA) for use as surfactants and drug carriers, among other applications, but neither is approved for subcutaneous injection. Lipodissolve™ and Lipostabil™ are not approved by the FDA.
 
Proprietary formulations of PPC / DC and other drugs have been manufactured by compounding pharmacies, yet such formulations lack standardization in terms of good manufacturing practices and sterility.
 
The FDA is well aware that injections to reduce fat deposits are performed, but the agency thus far has not exercised its enforcement power to restrict the use of compounded PPC / DC.
 
Safety and Efficacy of Injection Lipolysis
 
To date, reports on the safety and efficacy of injection lipolysis have been anecdotal. Any clinical study involving subcutaneous injection of these drugs requires FDA approval of an investigational new drug (IND) application plus IRB approval.
 
Reports of adverse events, including mycobacterium skin infections have been reported following the injection of compounded preparations for injection lipolysis.
 
Recommendations Regarding Injection Lipolysis
 
Patients must be informed that this procedure uses compounded drugs that are not approved by the FDA for injection.
 
The use of a PPC/DC combination is permitted in the context of a clinical trial operating under a FDA-approved IND (investigational new drug) study protocol.
 
Physicians may order individualized prescriptions from a compounding pharmacy designed for a specific patient for the purpose of injection lipolysis. “Bulk” purchases of the compounded drugs will not be possible. There is the risk of FDA investigation and sanctions involving compounded drugs that are not approved by the FDA.
 
Lipodissolve™ and Lipostabil™ are not approved by the FDA. It is illegal to import or use them.
 
 
-Adopted by the Board October 12, 2007
 
 
 
MULTIPLE PRESCRIPTIONS
 
Multiple C-II Prescriptions Written on the Same Date
 
On November 19, 2007, the Drug Enforcement Administration (DEA) will publish in the Federal Register a Final Rule titled "Issuance of Multiple Prescriptions for Schedule II Controlled Substances." This rule is effective December 19, 2007.
 
This Final Rule amends DEA’s regulations to allow practitioners to provide individual patients with multiple prescriptions for a specific schedule II controlled substance, written on the same date, to be filled sequentially. The combined effect of such sequential multiple prescriptions is that it allows a patient to receive over time up to a 90-day supply of that controlled substance. The Controlled Substances Act does not permit the refilling of Schedule II controlled substances, requiring that a new prescription be issued for each quantity of the substance  
Following publication, the rule will appear on DEA's Office of Diversion Control website, www.DEAdiversion.usdoj.gov under "Federal Register Notices > Rules 2007."
 
NEUROMUSCULAR BLOCKADE AND WITHDRAWING LIFE SUPPORT
 
Neuromuscular Blockade and Withdrawing Life Support
 
In a recent case investigation the Board learned that neuromuscular blockade was used to prevent agonal movements and agonal respiratory effort which might upset family members witnessing the withdrawal of life support. Although the patient had been declared dead before injection of the medication, the Board requested that licensees under its jurisdiction be informed that there is no acceptable reason to administer neuromuscular blockade during removal of life support measures. This is true whether the medication is given before or after the patient is declared dead.
 
PATIENT MEDICAL RECORDS
 
OMB ADMINISTRATIVE RULES ON MEDICAL RECORDS
 
Patient's Access to Physician Medical Records
 
847-012-0000 (1) Physicians shall make pertinent information in the medical record available to the patient. Physicians shall comply with the patient's written request within a reasonable time, not to exceed 30 days.
 
(2) At the discretion of the physician, disclosure of any portion of the medical record to the patient may be made in the form of an accurate representative summary of the factual information contained within the written account(s). Upon request, copies of pertinent x-rays will be provided in lieu of interpretive summaries.
 
(3) For the purposes of these rules, "medical record" does not include the personal office notes of the physician or personal communications between a referring and consulting physician relating to the patient. However, at the discretion of the physician, such notes and communications, or summaries thereof, may be included in the disclosure.
 
(4) If the physician disclosing the medical record to a patient believes, in good faith, that the release of any portion of the medical record would be injurious to the health or well-being of the patient, such disclosure of any portion of the medical record may be denied. The rationale for such a decision should be documented.
 
(5) The physician may establish reasonable charges to the patient for the costs incurred in providing the patient with copies of any portion of his/her medical record. Such charges may include cost of reviewing, summarizing and/or reproducing the original medical record and x-rays. However, a patient shall not be denied summaries or copies of his/her medical record because of inability to pay.
 
(6) Violation of this rule may be cause for disciplinary action under ORS 677.190.
 
COMMON QUESTIONS & ANSWERS ABOUT MEDICAL RECORDS
 
1. I am about to retire - what do I do with my patient records? What kind of notice must I give my patients? What kind of notice do I give the Board? May I keep an active license?
 
It is suggested that Board licensees who are retiring from the active practice take the following actions:
  1. Notify patients by letter of the effective date of your retirement from active practice.
  2. Notify patients who do not require the immediate services of a health care provider where their records will be stored and who should be contacted in the event the records are needed. This information should also be reported to the Oregon Medical Board.
  3. Advise patients that they may either seek the services of another health care provider or that you will assist them in locating another health care provider through referrals from your office.
  4. Advise patients that their records will be forwarded to another provider of their choice upon receipt of a properly signed release form.
  5. Advise patients that their office will remain open for a reasonable length of time to facilitate the transfer of records and for the collection of outstanding accounts.
  6. Inform the Oregon Medical Board of the correct mailing address after retirement.

Whether or not a Board license can choose to maintain an active license depends on several factors. There are several options available. For questions about license status, call the Board's Registration section and your options will be explained thoroughly.
 
2. How long must I keep my patient records?
 
The Oregon Medical Association recommends that physicians keep patient records, including those of deceased patients (adults and minors) for a minimum of ten years after the patient's last contact with the physician. If space permits, it is preferable to retain records of all living patients indefinitely. This recommendation applies to other licensees of the Board as well.
 
3. Does my doctor or other Board licensee have to let me see my records if I ask?
 
Yes, with very few exceptions you have the right to access to your records. Keep in mind, however, that the actual records belong to the doctor. Oregon Medical Board Administrative Rule 847-12-000 states that upon written request, a copy or summary of the medical record must be made available to the patient. Physicians should comply with these requests within a reasonable time, not to exceed 30 days.
 
A reasonable charge for costs incurred in providing patients with a copy or summary of the record can be made; however, the patient cannot be denied the material because of inability to pay or because of an outstanding bill for previous services.
 
4. My doctor or other Board licensee retired/moved--how do I find my records?
 
Contrary to what many people believe, there is no central storage place for medical records. The Board asks each retiring or departing licensee for an address where his or her medical records will be stored (often it is with a former partner or clinic). Once they provide the Board with that information, that address is put on the Board's computer, and may be obtained by calling (971) 673-2700 preferably between the hours of 1:00 and 4:00 p.m.
 
SUMMER/FALL 2002 OMB NEWSLETTER ARTICLE
 
Your Records, Your Friends
 
By Philip F. Parshley, M.D. OMB Medical Director

With the startling revelation by the Institute of Medicine in To Err Is Human that 44,000 to 98,000 deaths from medical errors occur in this country every year, emphasis has been placed on developing systems to prevent these errors rather than assigning blame to individuals. Every Oregon Medical Board (OMB) licensee can contribute to this process by reassessing the systems that lead to the development of medical records in his or her office. In addition, the medical record can be a healthcare provider's most valuable friend, when that provider is challenged by a malpractice suit, a hospital medical staff organization, the OMB or other regulatory organizations.
 
The standard of care requires a very complete documentation of every aspect of the medical care physicians provide their office patients. There are certain specific components that the OMB expects to find in the medical record.
 
First, it must be in the record and legible - or it didn't happen! Two pieces of pertinent information that frequently fail to make the medical records are progress notes you forgot to write or dictate, and telephone communications with the patients, consultants, former treating physicians, and the patient's family. Those who share call with you and your staff need readable information from your chart in order to assist you in providing quality care for your patients.
 
The SOAP (Subjective, Objective, Assessment, Plan) format is considered the standard of care with a separate set of entries for each major issue. The Subjective part is expected to contain a detailed history of the presenting issues, including identifying previous providers who have dealt with the present problems and what those providers did for the patient, a record of past illnesses, procedures, current medications, allergies, and a review of systems. The review of systems may be facilitated by a printed questionnaire which the patient completes. If you review the patient's responses on that form with the patient, perhaps with expansion of issues in your handwriting followed by your initials, date and time, you will demonstrate that you have reviewed the information.
 
The Objective part is a detailed complete physical examination that may vary based on the specialty of the examiner. This would also include laboratory and imaging results.
 
Your Assessment should include your reasoning for your diagnosis, as well as alternative diagnoses, if pertinent.
 
The Plan should have an explanation for your choice of action, especially if there are alternatives, and indicate the alternatives that were discussed with the patient. It is always a good idea to note that the patient was asked if he/she had any questions, and their answer. Note the expected date of revisit.
 
Physicians are currently being overwhelmed by more and more paperwork, but written protocols are very worthwhile to make certain that the professional providers and the office staff understand what is expected of them in all aspects of the practice. For example nothing is to be filed and buried somewhere in the chart without the pertinent physician's readable signature or initials. This includes everything from chart notes, to diagnostic studies, to copies of portions of the hospital records forwarded to the office, to consultant reports and virtually anything else that goes into the medical record in the office.
 
Your office should have protocols to see that preventive measures such as immunizations, screening procedures and counseling about tobacco, alcohol and drugs will be addressed in a timely manner. Protocols to track failed and canceled appointments, as well as failure to report for diagnostic studies or consultations, should be developed. If you are referred a patient for consultation and he or she fails to keep the appointment, notify the referring health care provider. You might consider a protocol to track follow-up procedures on previous problems.
 
Some other protocols that are strongly urged are policies on staff placing date, time and signature on any entries they make in the chart, handling telephone calls to the practitioners, phoning prescriptions, emergencies both in the office and those phoned to the office, threatening behavior toward staff or practitioner, and triage guidelines for staff giving response time according to category. These written protocols are important even in small medical offices with only one employee. Since there is inevitable turnover of staff, these written protocols will make orientation of new employees and additional practitioners much easier and more reliable.
 
The presence of a problem list and particularly a medication list, or even better, a medication flow sheet, has become the standard of care for any primary care provider or any provider who has patients receiving multiple medications or even a single medication on a regular basis. The medication flow sheet is considered critical if chronic pain is an issue as is a Material Risk Notice; the latter being required by law (Oregon Revised Statutes [ORS] 677.485 and Oregon Administrative Rules [OAR] 847-010-0030).
 
Electronic records will and are making records better, but there are drawbacks. Using voice-recognition computer software for medical records is risky unless you are willing to carefully edit and correct the final result. There should be some mechanism to prevent changes in the electronic record once the author has signed off on the content. If you dictate or use an electronic record, be sure you edit what comes back for errors and date the final result.
 
Hospital medical records usually document a much faster pace of events than those in the office environment. Under these circumstances, it is absolutely critical that the progress notes, orders and any acknowledgment of laboratory and imaging studies be dated and timed. The more critical is the patient, the more important the time record. Documentation of the note by time as well as date may save your bacon many times over.
 
Resist the urge to write in blank forms for lab results in a "progress notes," with plans to return and fill them in later in the day. This is a formula for disaster. A great deal can transpire between the writing of the progress note and the time when the laboratory reports are received by that physician. This could easily make the accompanying plan of action in that progress note inappropriate, negligent, and/or below the standard of care.
 
Do not in any way change the medical record. This is the kiss of death! If you are caught, you might as well ask how many pounds of flesh the plaintiff, the OMB, or the medical staff committee would like you to sacrifice. If you find errors later, make a dated and timed note of the changes without erasing the original. Better still, make a late entry in the current part of the record indicating the error and what you feel the correct entry should have been.
 
Promptly correcting errors transcription of your dictation acceptable. Even then, to be safe should initial and date the corrected copy. In this day and age, more patients have access to their records and may become incensed by they read. It is not uncommon receive a "demand" that the record be changed to reflect what the patient believes to be correct. you find that an error has been made you do not have to change your record. If an error has been made, you may change it as outlined above. If no error has been made you may acknowledge the concern of the patient in the record, but original entry may remain unchanged.
 
Specific procedures in the medical record keeping have changed with the passage of time, but not the need for such records, nor the importance of their accuracy and legibility. The difference between top-notch records and less than- desirable records can mean difference between a career saved and a career lost - not to mention limb, or a life!
 
 
PHYSICIAN HANDBOOK
 
·       Introduction
·       Table of Contents
·       Section I: Board Functions and Services
·       Section II: Frequently Asked Questions
·       Section III: Investigative & Disciplinary Procedures
·       Section IV: Statutes and Administrative Rules
·       Section V: Statements of Philosophy
·       Section VI: Resources
 
 
 
PHYSICIAN-PATIENT RELATIONSHIP
 
OMB STATEMENT OF PHILOSOPHY ON THE PHYSICIAN-PATIENT RELATIONSHIP (1998)  
An Oregon physician has medical, legal and ethical obligations to his or her patients. In light of these obligations, it is the policy of the Oregon Medical Board that:

  1. Regardless of whether an act or failure to act is determined entirely by a physician, or is the result of a contractual or other relationship with a health care entity, the relationship between a physician and a patient must be based on trust, and must be considered inviolable. Included among the elements of such a relationship of trust are:

  • Open and honest communication between the physician and patient, including disclosure of all information necessary for the patient to be an informed participant in his or her care.
  • Commitment of the physician to be an advocate for the patient and for what is best for the patient, without regard to the physician's personal interests or the interests of any other healthcare entity.
  • Provision by the physician of that care which is necessary and appropriate for the condition of the patient, and neither more nor less.
  • Avoidance of any conflict of interest or inappropriate relationships outside of the therapeutic relationship.
  • Respect for, and careful guardianship of, any intimate details of the patient's life which may be shared with the physician.
  • A career-spanning dedication by the physician to continually maintain professional knowledge and skills.
  • Respect for the autonomy of the patient.
  • Respect for the privacy and dignity of the patient.
  • Compassion for the patient and his or her family.

  1. The relationship between a physician and a patient is fundamental, and is not to be constrained or adversely affected by any considerations other than what is best for that patient. The existences of other considerations, including financial or contractual concerns are and must be secondary to the fundamental relationship.
  1. Any act or failure to act by a physician that violates the trust upon which the relationship is based jeopardizes the relationship and may place the physician at risk of being found in violation of the Medical Practice Act.
  2. The policies expressed herein apply to all physicians in Oregon, as well as those who make decisions which affect Oregon consumers, including health plan medical directors and other physicians employed by or contracting with such plans.
 
OMB STATEMENT OF PHILOSOPHY ON ENDING THE PATIENT-PHYSICIAN RELATIONSHIP
 
The physician-patient relationship is established when the physician evaluates the patient, and a plan is established for the treatment/management of the patient’s complaint(s).  This relationship may be ended informally or formally, when the patient’s problem is resolved.  It may also be ended by mutual agreement when the agreed upon treatment plan has not succeeded and the patient is moving on to another provider.  It also may be ended by the patient simply disappearing or by requesting a transfer of his/her records to another physician with or without a more formal notification of the original physician. In this situation the patient may have been seeking a second opinion on their own and may well reappear after receiving the results of the visit with the other physician.
 
The physician may end this relationship for reasons of changes in the physician’s scope of practice, change of practice location, retirement, illness, and loss of a contract that includes a time and distance clause preventing continued practice in the area.  In the latter situation the physician may be denied a list of names and addresses of his patients to use for communicating that he/she is discontinuing practice in the area.  The current American Medical Association (AMA) ethics document on discharging a patient recommends under such circumstances (in consultation with his/her attorney) the physician should provide a model patient termination letter to be given to the party withholding his/her patients’ addresses, and request that the addresses and letter be merged for distribution to these patients.1
 
When physician is ending the relationship for a reason other than those already described, the physician should give the patient adequate notice to allow time for the patient to establish a new relationship with another healthcare provider.  This should be at least 30 days except under special circumstances.  One special circumstance includes a potential lack of availability of appropriate other providers, which may well cause a significant problem in rural settings.  In such a case a longer period of time may be necessary.  For patients who are significantly disruptive, threatening or considered dangerous for the physician or his/her staff, a much shorter window of time down to and including one day may be appropriate.
 
Notification should be accomplished in writing sent by Certified Mail with “Returned Receipt Requested” or by regular mail with “Address Service Requested” in the bottom left hand corner of the front of the envelope.  It is desirable to provide in the letter to the patient and/or to the patient’s responsible party some explanation of the reason for ending the doctor-patient relationship, but the decision to provide or not provide that explanation is up to the licensee.
 
The physician should, if possible indicate resources that might assist the patient in establishing a new physician, but the discharging physician does not have to refer the patient to a specific physician or group of physicians.  The physician should make certain that the patient understands that his/her medical records will be sent to the patient’s new health care provider, when the patient’s signed permission to do so has been received from that healthcare provider.  
July 2008


1 http://www.ama-assn.org/ama/pub/category/4609.html

 
 
SEXUAL MISCONDUCT
 
OMB STATEMENT OF PHILOSOPHY ON SEXUAL MISCONDUCT (1994)

The Oregon Medical Board recognizes that the practice of medicine entails a unique relationship between physician and patient. The patient's trust and confidence in a physician's professional status grants power and influence to the physician.
 
Licensees are expected to maintain a professional manner and to avoid behaviors that may be misunderstood by or considered offensive by the patient. Sexual contact of suggestion of any sort within a professional relationship, or any such contact outside the physician-patient relationship that exploits the patient's trust and confidence, is unethical.

FALL 98 OMB NEWSLETTER ARTICLE ON SEXUAL MISCONDUCT
 
Sexual Misconduct Revisited
 
By James S. Hicks, MD, Medical Director Oregon Medical Board
 
The lead article of the Spring-Summer issue of the OMB Report by my predecessor, Dr. John Enbom, addressed in detail the incidence of sexual boundary allegations both in Oregon and nationwide. Despite frequent attention focused on this matter, the issue of sexual involvement of licensees with their patients continues to surface. Discussed here is a compendium of recent complaints and inquiries received by the Board. Some merely require advice to the patient or the physician, while others, obviously require significant investigation.
 
Allegations of inappropriate examination or roughness during examinations are not uncommon. Specific examples, including the necessity to examine nipples for discharge or the performance of a digital rectal examination during a pelvic examination, have been recently questioned by patients. In both instances, a careful description of the proposed examination and an explanation of the type of information to be gained from the examination might have provided sufficient patient insight to preclude inquiry to the Board.
 
The question of the universal use of chaperones always arises in discussions of sexual boundary issues. Although there is no regulatory guidance for their use, the OMA Medical-Legal Handbook offers several useful guidelines in this regard: (1) a chaperone should always be offered prior to asking the patient to disrobe (and the patient should always be allowed to disrobe and get dressed again in private); (2) a chaperone should always be offered if it is unusual for the physician's practice to examine private areas or if such an exam seems unusual to the patient; (3) particular attention should be paid to the use of a chaperone in the case of very young or very old patients, patients whose cultural beliefs might require chaperoning, and those new to the physician; and (4) a chaperone should always be used if either the patient or the physician is particularly uncomfortable with the situation, or if there has been any concern in the past for even the suggestion of seductive behavior by the patient.
 
The patient often feels especially vulnerable during examinations of sensitive areas of the body, and can easily misinterpret comments intended to be funny or reduce anxiety. Careful explanations of reasons for examination, accompanied by assurances of normal findings when present, are perhaps the safest course. Asking the right question at the wrong time can also lead to trouble. Infertility and pelvic pain/dyspareunia workups are particularly troublesome, for questions regarding sexual positions and habits have been misinterpreted by patients when asked during the actual examination. When possible, such detailed questions should be reserved for the office interview after the examination, when they can be related to physical findings and the patient can answer them more comfortably.
 
Intimate involvement with a patient not one's spouse constitutes a serious and, unfortunately, recurring source of complaints. This violation can occur when a physician allows him- or herself to be drawn into an intimate relationship with a patient, or diagnoses and/or treats a person with whom s/he is having an intimate relationship. It remains the responsibility of the physician to resist "being seduced" by a patient, and seduction does not constitute a defense against such actions. Recently, a physician was placed on probation for ten years for prescribing for an office employee with whom he was having an ongoing intimate relationship. Physicians must realize that their position of trust and access to confidential information gives them a unique influence over patients. The Board has made its policy very clear on this point. Should there be any betrayal of this trust, the Board will aggressively pursue an assessment of the psychological damage done to the physician's partner(s), often requiring detailed and embarrassing interviews with both. It should be immediately made clear to patients that invitations to intimacy are outside the boundaries of your professional relationship with them, and can pose significant risks to your medical license. In obvious cases, it is to your advantage to record specific conversations in the chart and note any witnesses to the behavior.
 
The Board is often asked when, if ever, a physician may enter into an intimate relationship with a former patient. There is no clear-cut answer, but it is incumbent on the physician to demonstrate not only that the prospective partner is no longer a patient (relatively easy to do), but that the information gained during the doctor-patient relationship has no influence whatsoever on the decision to enter into the relationship (much harder to accomplish). The answer also varies with the degree of medical and psychological involvement you have had with the patient. The time between the end of a doctor-patient relationship and the beginning of a romantic relationship for someone whose sprained ankle you have wrapped would be different from someone whose depression you have managed over a period of time. The easiest rule to follow is "Once a patient, never a partner."
 
Sexual abuse of children unfortunately still occurs in the physician population. It is, of course, not only a violation of the Medical Practice Act but of criminal statues in addition. As you would expect, such matters are given intense scrutiny; such behavior constitutes one of the most egregious violations that the Board encounters.
 
Lessons to be gleaned from these cases can be summarized as follows: (1) tell patients exactly what you are doing and why you are doing it during examination of private areas; (2) maintain an atmosphere of decorum during these examinations; (3) never mix even the incidental practice of medicine with intimacy (or the incidental practice of intimacy with medicine); (4) clearly rebuff any patient's advances or suggestions for intimacy, recording such behavior if necessary; and (5) carefully consider any intention to involve yourself with a patient or former patient in light of the risks. The necessity to avoid even the slightest suggestion of intimate interest in minor patients should need no further discussion.
 
An excellent review of this subject is contained in the Oregon Medical Association's Medical Legal Handbook, available at a nominal cost from the OMA. In it is contained an excellent discussion of most of the situations described above, with a detailed discussion of their appropriate management.
 
SUMMER/FALL 2002 OMB NEWSLETTER ARTICLE
 
Hot Tubs and You
 
By Kathleen Haley, J.D.
 
When I came to the Board office eight years ago, I was surprised at the nature and number of sexual misconduct complaints that the Board received.
 
Surprised but undaunted - I felt certain the Board could remedy that state of affairs, and reduce the number of complaints down to practically nothing by making clear its expectations of licensees, and the consequences of inappropriate behavior with patients, (via notices in OMB Reports, etc).
 
However, I learned quickly that thanks to basic human nature, that was a very unrealistic expectation on my part. So I wanted to take a moment to outline some of the issues and circumstances leading to physician sexual misconduct, as I've observed them.
 
Patient Scheduling - There are two possible warning signs from this area of patient management: "When" and "Where."
 
Scheduling a particular patient for appointments late in the day is often a warning sign. When a physician notices that this is the case, or staff brings this circumstance to a physician's attention, it is probably a good time to re-examine that particular doctor-patient relationship for the potential of any undue intimacy.
 
Meeting with a patient outside the office is another potentially risky practice. Physicians may feel that it is quite an innocent practice, to stop and have a cup of coffee with a patient. And in some circumstances - in small communities and/or rural areas - this is often the case. In many cultures and circumstances, such informality is normal and is usually not harmful to the patient, or to the doctor-patient relationship.
 
However, in some circumstances, meeting a patient outside of a clinical setting can often be misread by the patient as the first step toward greater intimacy - regardless of which party makes the first such overture. The physician should take responsibility by assessing his or her relationship with a patient, any personal feelings regarding the patient, and any perception of the patients' possible feelings toward him or her, before arranging or entering any such meetings.
 
Providing Personal Counseling - Since Hippocrates' day, this has been an important part of the primary-care physician's scope of practice. Such counseling is often essential in treating the whole human being.
 
Generally, these sessions start out with the best of intentions on the physician's part. But it is possible for personal counseling sessions to lead to more intimacies between the physician and the patient - first emotional, then physical.
 
The Board does not suggest that physicians do not take the time or effort to hear and understand their patients' concerns. Even in our more clinical and cynical society, the physician is still regarded by many as not only a practitioner of medical science but also as a kind and wise counselor. But as with out-of-office meetings, it is only prudent that physicians take special care in monitoring any possible personal physician-patient (or vice versa) feelings that may emerge during such counseling.
 
Controlled Substances - The practice of medicine and the physician-patient relationship contain many gray areas. But there remains at least one black-and-white truism: Writing a prescription for a patient equals establishing a physician/patient relationship.
 
Physicians who prescribe narcotics to patients are encouraged to be doubly vigilant and scrupulous in their relationships with those patients, particularly where there is danger of emotional and/or physical vulnerability on the part of either party. The problem may be compounded by a romantic and/or sexual relationship between physician and patient.
 
It is surprising, but these have become "textbook cases" for the Board. Each agenda contains cases in which physicians gradually became more personally intimate with patients. Some patients had psychological or drug/alcohol problems, yet physicians continued to write inappropriate prescriptions or provide alcohol, while engaging in sexual misconduct.
 
Within clinical settings, physicians should avoid offering patients anything stronger than coffee or cola drinks for other than medicinal reasons. In this case, "clinical settings" includes those out-of-office meetings with patients to discuss health-related issues.
 
When physicians and patients are together in purely social settings - again, this often occurs in certain communities - the physicians should assume responsibility for their judgment and actions regarding the use and sharing of alcohol with patients.
 
Hot Water: For Birthing, Not Bathing! - When a patient tells you that her sister is going to be out of town for the weekend and that she has a great hot tub, the screaming answer in your brain needs to be "No, thank you!" The Board has seen more than one case involving physician sexual misconduct in which the hot tub has been the first, inviting way-station on the road to ruin, vis-à-vis a doctor's professional life.
 
In the case of sexual misconduct, as you may have noted in previous editions of this newsletter, the Board frequently places the physician on probation with many terms of compliance. In some cases, a suspension is imposed. Such Board orders are recorded in the National Practitioner Database, with serious consequences for the physicians involved. Often, they may have a very difficult time getting or remaining on insurance panels.
 
The question frequently arises: "What is an appropriate amount of time to lapse, before a physician engages in a romantic and/or sexual relationship with a former patient?" This question represents another gray area for physicians and patients, in which good judgment must be exercised.
 
The American Psychiatric Association (APA) recommends "Once a patient, never a lover" as its guideline for psychiatrists. The American Medical Association (AMA) does not issue such a blanket recommendation, but in its official Code of Medical Ethics appears to discourage such relationships. The AMA in opinion 8.14 of the Code opines that "(a)t a minimum," a physician should terminate the professional relationship before entering into the personal one.
 
Authors of the Code also noted that such relationships might be "unduly influenced" by the previous, professional relationship, and that such relationships are unethical if the physician "uses or exploits trust, knowledge, emotions or influence" obtained from that relationship.
 
So what is a proper interval for a transition from patient to partner? Two years has been suggested as an appropriate hiatus, but in some cases, this may be an extreme length of time.
 
At the other end of the scale, a physician thought he had formally terminated a particular patient relationship late in the afternoon on the same day he had written his soon-to-be-lover a long-term prescription for narcotics. The physician and his "former" patient engaged in sexual relations that evening. Obviously, the state medical board deemed that to be unacceptable behavior, and the physician was denied a license.
 
Again, it is best for physicians and other health care providers to determine on a case-by-case basis whether romantic/sexual relationships between physicians and former patients are appropriate, as well as the hiatus between the physician-patient partnership and something much more intimate.
 
Staying aware of sexual boundaries is easier said than done, in many instances. Physicians having difficulties maintaining these boundaries are encouraged, before it is too late, to seek help. There are a number of resources open to physicians, through The Foundation for Medical Excellence, the AMA or the Oregon Medical Association.
 
Other professional associations have practitioner resources as well: the Oregon Psychiatric Association, Oregon Society of Physician Assistants, Osteopathic Physicians and Surgeons of Oregon, Oregon Podiatry Association and the Oregon Acupuncture Association. For more information, contact the OMB.
 
We've already discussed hot water in passing. Literally staying out of it if one's bathing partner is a patient, is but one way to stay out of hot water in the figurative sense, when conducting physician-patient relationships. Maintaining professional boundaries is vital to patient health and public safety, as well as preserving the integrity of the health care professions.
 
A FOLLOW-UP EVALUATION OF SEXUAL MISCONDUCT COMPLAINTS: THE OREGON MEDICAL BOARD, 1998 THROUGH 2002
 
This article is in Portable Document Format (PDF). To view it, you must have Adobe Acrobat or a compatible reader on your computer. This Acrobat Reader is distributed free by Adobe for most types of computers.
 
A Follow-Up Evaluation of Sexual Misconduct Complaints: The Oregon Medical Board, 1998 Through 2002

John A. Enbom, MD, Philip Parshley, MD, Jeffrey Kollath, MS
 
 
 
 
Page updated: August 14, 2008

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