A couple of Florida pain doctors filed a lawsuit last month challenging the bill's constitutionality. One of the most contested clauses allows the Department of Health to obtain a clinic's patient records without a subpoena if the department and an unspecified "probable cause panel" think the clinic is in violation of the law.
That clause may be challenged in court the first
time authorities actually try to seize patient records. Bernard Cassidy,
the lawyer filing the suit, says, "My clients have never turned down a
legitimate request for records."
If the federal judge does find that or any other section of the law unconstitutional, it's adios to the whole thing: The law lacks a "severability clause," which means that if one part of it can't be enforced, neither can the rest.
Here are some of the other restrictions:
- All privately owned clinics advertising pain-management services must register with the Department of Health (with some exceptions).
- All clinics must be fully owned by a physician or be a licensed "health care clinic." During a meeting of the Pain Management Clinic Task Force on September 24, pain management doctor and Broward County Medical Association board member Sanford Silverman was adamant that clinics should be owned only by doctors. This seems to have been a vital lobbying issue for the state's medical associations.
- A doctor must examine a patient on the same day that he dispenses or prescribes pain medication and cannot dispense more than a 72-hour dose for patients paying by cash, check, or credit card (not insurance). When prescribing for longer periods, the doctor must note the reason in the patient's records.
- The Department of Health will inspect clinics and review patient records annually.
- Clinics can get fined up to $5,000 per violation.
"We believe that what really are pill mills are a problem and should be addressed," he says. "But there's still the Fourth Amendment."
Many local governments, including Fort Lauderdale and Broward County, enacted 180-day temporary bans on new pain clinics until this law went into effect. If a judge decides to stop the law's enforcement, municipalities could be left scrambling for a way to stop the out-of-control -- but largely legal -- prescription drug trade.