Judge Robert Burnside granted the West Virginia Department of Health and Human Resource’s petition for an injunction to prevent Coal Country Clinic from operating as a pain clinic without a license Monday, but this ruling won’t close the clinic’s doors.

Clinic operator Dr. Michael Kostenko maintained in court that his clinic does not meet the criteria to be deemed a pain clinic, and he should be able to practice at his clinic as an osteopathic general practitioner.

Jake Wegman, assistant attorney general, explained that under the Chronic Pain Clinic Licensing Act, which went into effect with legislative rule in 2014, a pain clinic is defined as a practice with more than 50 percent of patients prescribed drugs for chronic pain management, with the exception of patients being treated for terminal illnesses.

Under state law, pain clinics must be licensed through the state and physicians must meet educational requirements for managing chronic pain.

Wegman said the clinic was uncooperative and did not provide access to medical records in their entirety. He also noted that Board of Pharmacy data showed Dr. Kostenko continues to prescribe “an exorbitant amount of controlled substances.”

James Cooper, program manager for the Office of Health Facility Licensure and Certification, testified Coal Country Clinic was notified on April 9, 2015, that DHHR deemed it an unlicensed plain clinic and it were asked to close. On June 26, Dr. Kostenko was granted an extension for time to relocate patients, but Cooper said DHHR has never been notified that the clinic closed.

Attorney Kristen Kostenko, representing Dr. Kostenko, said DHHR was notified that Coal Country Clinic was no longer operating as a pain clinic by letter in both August and September. She said chronic pain patients represented between 49.6 and 49.9 percent of the clinic’s patients after Aug. 1.

During the course of the five-hour hearing, Burnside began questioning Dr. Kostenko on how his clinic became compliant. Dr. Kostenko admitted that “very few” patients were transferred to other physicians or clinics.

The doctor explained that in order to be treated, all patients must bring with them a “life partner,” be it a family member or close friend. This “life partner” also becomes a patient.

Answering an ever-growing number of questions as the judge sought clarification, Kostenko said all of his patients have primary care and specialist care physicians. He said “life partner” patients must take educational classes on managing health risks and wellness.

Burnside asked if life partner patients are billed, Dr. Kostenko said they are not.

Dr. Kostenko also testified that 90 percent of his patients are treated for a terminal illness, and are therefore exempt from chronic pain patient counts that establish whether a clinic is, in fact, a pain clinic.

“How would a layman be able to tell the different between a person, like all of us, who is going to die someday of something and a person with a terminal illness?” asked Burnside.

Kostenko said he treats patients who are dealing with chronic progressive disease issues, and he determines if they are terminal based on medical evaluation, pathological adaptation and biochemistry.

His attorney explained that illnesses like obesity and drug addiction are chronic degenerative diseases that lead to death if untreated.

“He treats the process of the disease, not the pain itself. He tells them (patients) to go on the naturals to support a healthy cell. He does not treat people with a coal mine back injury. He treats the process of that,” she said. “He gets people off pain medications and onto natural supplements so cells can heal themselves.”

“Then he would have very little need to prescribe pain medication,” said Burnside.

Wegman said DHHR disagrees with Dr. Kostenko’s broad reading of state code on what constitutes a terminal illness and what is therefore exempt from counting toward chronic pain patient numbers.

Burnside asked Wegman, if only 90 percent of Dr. Kostenko’s patients are exempt due to terminal illness, should less than half of the remaining 10 percent be chronic pain patients under the law.

After much debate, Wegman said all patients are included in the count. Burnside questioned this assertion and asked, if that is the case, what point is the exception.

After reviewing the legislative rule, Wegman agreed that patients with terminal illnesses are exempt from counting toward the chronic pain numbers DHHR uses to determine if a clinic needs to be licensed as a pain clinic.

Burnside asked attorney Kostenko, if the injunction was granted, what effect it would have on the clinic and its patients.

She said it would hurt Dr. Kostenko’s reputation and assumes he violated pain clinic law.

Ultimately Burnside said he does not see that granting the injunction to prevent Coal Country Clinic from operating as a pain clinic would cause the doctor or practice harm since they would continue to operate as a regular clinic.

The clinic must work with DHHR to provide complete patient records and show they are operating under the law.

Dr. Kostenko and Coal County Clinic have filed appeals against a civil monetary penalty imposed on the clinic and an administrative rule appeal against the interpretation of criteria the state used to deem the clinic a pain clinic.

Those hearing are set for mid-December.

— Email: splummer@

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