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The Kentucky General Assembly is currently considering sweeping legislation to combat prescription drug abuse through increased regulation of pain clinics and greater scrutiny of prescribing practices by various agencies of state government.  House Bill 4 and the Free Conference Committee Report proposing to modify House Bill 4, if enacted and signed by Governor Beshear, will place significant limits on ownership of pain clinics and also impose a host of requirements governing the operation of pain clinics in the Commonwealth of Kentucky.

The proposed legislation defines “pain management facility” as “a facility where the majority of patients of the practitioners at the facility are provided treatment for pain that includes the use of controlled substances and [t]he facility’s primary practice component is the treatment of pain or [t]he facility advertises in any medium for any type of pain management services.”  House Bill 4 provides that only a physician having a full and active license to practice medicine in the Commonwealth of Kentucky shall have an ownership or investment interest in a pain management facility.  The Free Conference Committee Report would delay the enforcement of this ownership limitation until August 1, 2013 for a pain management facility existing and operating on the effective date of the legislation unless there is an administrative sanction or criminal conviction relating to controlled substances imposed on the facility or any person employed by the facility for an act or omission done within the scope of the facility’s license or the person’s employment.

As a practical matter, if the legislation is enacted and signed by the Governor, any currently operating pain management facility with any owners who are not physicians with full and active Kentucky licenses will have to be restructured to divest the non-physician’s ownership interest in the facility.

Additionally, the proposed legislation would impose certain staffing requirements on pain management facilities.  House Bill 4 and the Free Conference Committee Report would require at least one (1) physician owner of the facility or an owner designee such as a medical director who is employed by and under the direction of the physician owner to be physically present practicing medicine in the facility for at least fifty percent (50%) of the time that patients are present at the facility.  More importantly, that physician owner or designee would have to meet specific specialty or subspecialty certification requirements or have completed an accredited residency or fellowship in pain management.  Importantly, this portion of the proposed legislation, unlike the postponement of enforcement of the physician ownership requirement of the legislation until August 1, 2013, would become effective on the effective date of the legislation and would require pain management facilities to have appropriately certified physicians on staff by that date.

The proposed legislation contains numerous other requirements which will govern the operations of Kentucky pain management facilities.  If enacted, the proposed legislation will require pain management facilities to make changes to conform their policies, procedures and operations to the requirements of the law.

On Thursday, April 12th, the General Assembly adjourned without passing the proposed pain clinic legislation.  However Governor Beshear has publicly stated that he intends to call a Special Session of the General Assembly to try to achieve passage of the legislation.

Christopher Shaughnessy is a member of McBrayer law.  Mr. Shaughnessy concentrates his practice area in healthcare law and is located in the firm’s Lexington office.  He can be reached at cshaughnessy@mcbrayerfirm.com or at (859) 231-8780, ext. 1251. 

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This article does not constitute legal advice.

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