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Finding the Proper Balance: Walking the Tightrope Between Treating Chronic Pain and Countering Prescription Drug Diversion
Judy McKee, End of Life Health Care Project Coordinator and Counsel
Picture these scenarios: (1) A fifty-four years old doctor with an active practice is indicted for conspiracy, unlawful distribution of a controlled substance resulting in death, health care fraud, illegal money transactions, and money laundering. He is jailed, his DEA license to prescribe pain medications is pulled, and his office records taken by investigators. His former patients complain that they cannot find other doctors to prescribe sufficient medications to help them cope with chronic pain so that they can work, parent, and recreate because physicians are afraid that they, too, will be prosecuted. 1 (2) Eight people from eastern Kentucky pile into a van and journey to Philadelphia where they have an appointment with a local doctor. Paying $450 to $500 in cash for the visit, they then stop at a local pharmacy (thereby evading Kentucky’s prescription monitoring program), and fill their prescriptions for methadone, oxycontin, Percocet and Xanax tablets. They return home where the pills are sold on the street for $10 to $120 each.2
These scenarios illustrate the collision of two major public health issues. On the one hand, there is the well-documented under-treatment of chronic pain, fueled, advocates argue, by the prosecutions of physicians; on the other, there is the well-documented increase in diversion of prescription medications that has led to ruined lives and death. Responding to these conflicting issues, Attorneys General adopted a resolution in March 2003 that called for a balanced approach to promoting pain relief and preventing abuse of pain medication. That resolution was subsequently re-adopted at the Winter Meeting in March 2007. These resolutions reflect that Attorneys General, acting as their states’ chief law enforcement officers and consumer advocates, are committed to a policy that finds balance between pursuing two important societal goals: preventing the abuse of prescription drugs and ensuring appropriate medical care for those in pain.
NAAG’s involvement in working towards a balanced pain policy was launched with Oklahoma Attorney General Drew Edmondson’s presidential initiative that addressed end-of-life issues, as well as the availability of appropriate pain medication, both for citizens at the end of their lives and for those who deal with chronic pain. With this initiative, NAAG joined other organizations representing pain medicine, law enforcement, ethics and healthcare policy groups, and consumer advocacy groups that had come together in 2001 to work with one another and with the federal Drug Enforcement Agency (DEA) to collaborate on developing balanced policies. This collaborative effort was severely disrupted by the federal prosecution of a Virginia pain doctor in 2004; the progress that had been made significantly deteriorated and the dialogue among the disparate organizations nearly disappeared. Distrust and suspicion replaced dialogue and collaboration.
Also fueling the rupture among the various groups were numerous press reports and comments by stakeholders that federal prosecutors were “out to get” pain doctors and that DEA was dictating how doctors practiced medicine. These news articles focused on the devastating results of prosecutions on genuine pain patients whose medical records had been confiscated by investigators and who could not find other physicians to treat their pain. According to many advocates, the investigations and prosecutions of physicians for prescription drug diversion was creating a “climate of fear” so that physicians were refusing to prescribe adequate pain medication.
To reopen the dialogue and renew the collaborative effort, in 2006, NAAG joined with the Center for Practical Bioethics and the Federation of State Medical Boards to form a working partnership. Titled, the Balanced Pain Partnership Initiative (BPPI), the partnership’s stated objectives were to:
- Create a national task force, including key law enforcement, pain medicine, and patient advocacy groups to promote balanced pain policies;
- Develop and implement a systematic effort to gather and analyze fact-based findings regarding cases in which physicians have been charged with and sanctioned for diversion of prescription drugs;
- Communicate these findings to key organizations for the purpose of those organizations developing/revising policies or policy guidelines, creating educational curricula, and/or developing best practice models; and
- Provide technical assistance to organizations working on these issues at the state and national levels.
- A national work group was convened and met for the first time in Oklahoma City in June 2006. There was strong agreement among participants that data were needed to accurately define the scope of physician prosecutions, investigations and medical board activity surrounding physicians who prescribed pain medications. A set of preliminary research questions was established and a smaller research group was formed to develop the methodology and provide technical assistance. That research group met in Kansas City in August, refined the research questions, discussed research methodologies and recommended three initial research activities:
- Gather factual information on charges and cases brought against physicians by state and federal enforcement officials and by state medical boards; build a confidential database to hold this information; and analyze these data to answer the research questions posed by the national work group;
- Survey physicians who self-identify as pain specialists and are members of the American Pain Society and the American Academy of Pain Medicine to determine their experiences and perceptions regarding administrative and legal risks associated with prescribing controlled substances; and
- Comprehensively review relevant case law to identify the criteria that judges and courts have been using to distinguish professional misconduct from criminal behavior in such cases.
At a January 2007 meeting of the work group, preliminary data on physicians who have been charged administratively or criminally for wrongfully prescribing controlled substances over the last decade was presented. Since the beginning of the project, information has been gathered on more than 750 physicians. The data presented responded to the following questions:
- What types of physicians have been prosecuted or administratively admonished for offenses regarding controlled substances?
- What specific pain medications have been involved in these cases?
- What type of criminal/administrative charges have been brought?
- Are some states more aggressive than others in prosecuting physicians?
- Have the criminally charged physicians pled or gone to trial? What were the outcomes?
- To what extent have guilty verdicts been reversed on appeal?
NAAG was responsible for the research regarding criminal prosecutions of physicians and their associated medical board and DEA records. Many state Attorneys General offices assisted that effort by reporting cases that they had handled. The results of the extensive research will be published in an article in Pain Medicine in September.
The preliminary results were presented by the BPPI partners to a DEA meeting in June 2007 and at a law enforcement roundtable meeting last fall. It is anticipated that another law enforcement roundtable gathering will convene this year to educate officials and investigators on the results of the study and collaborate on working together with their colleagues in the medical profession to achieve balance regarding pain management and drug diversion enforcement.
The complete results of the research effort by the BPPI partnership have been embargoed until the Pain Medicine article is published. An upcoming article in the NAAGazette will highlight those results so that Attorneys General offices will be better equipped to respond to press calls concerning the BPPI partnership and its research efforts.
1 Roxana Hegeman, “Jailed Kansas Doctor in Pain Pill Storm,” USA Today, Feb. 20, 2008, available at http://www.usatoday.com/news/nation/2008-02-20-434581759_x.htm.
2 Bill Estep, “Drug Ring Stretched to Philadelphia,” Lexington Herald Leader, July 13, 2008, available at http://www.kentucky.com/news/state/story/459841.html.
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