State Pain Laws: A Case for Intractable Pain Centers Part III

State intractable pain laws provide provisions for aggressive pain treatment while protecting doctors from unwarranted prosecution—provided that strict guidelines are followed.
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It has been our contention, as we move forward in our campaign to establish intractable pain centers in every community, that laws exist — albeit with strict guidelines — that permit aggressive treatment of intractable pain patients with opioids and other controlled substances. In our September/October 2004 issue we began this series of articles with “The California Model.” California’s Intractable Pain Law and Patient’s Bill of Rights provide safeguards for the patient and protection for the physician.

For this article, the fourth in the series, we researched the laws in other states that address intractable pain. Most of the information was obtained from the University of Wisconsin web site at URL http://www.medsch.wisc.edu/painpolicy. We encourage you to visit this site for more detailed information than is presented here.

A few introductory observations follow. Some sort of pain law exists in almost every state. We limited our research to those states whose laws contain the words “intractable pain.” While we consider guidelines for prescribing controlled substances important, it is our contention that intractable pain requires special attention and that its needs are different than those controlling chronic or acute pain treatment.

Going back to our research on California law, we found one aspect that, as far as our research revealed, is not contained in any other state law; namely, the physician cannot dismiss a patient being treated for intractable pain in California without providing alternative resources for the continuation of treatment. This is a very important point. California legislators, by their action, have shown recognition of the fact that intractable pain patients who are not adequately and aggressively treated are in great danger. Untreated severe pain, as stated in several articles in issues of this journal, can result in serious consequences such as suicide, dementia, cardiac problems, and hormonal deficiencies.

The following sections present only an overview of the nature of the laws that currently exist. We noticed that many of the state laws discussed contain guidelines that are very similar. These states used The Model Policy for The Use of Controlled Substance for the Treatment of Pain as issued by the Federation of State Medical Boards of The United States. The Federation was formed to assist state boards in developing codes and initiatives governing pain treatment. A key point is that the laws protect from prosecution the physician aggressively treating intractable pain patients — the caveat being that he or she must adhere to strict guidelines. The following states and California, covered previously, have laws for intractable pain treatment.

Arkansas

On April 16, 2003 the Arkansas code was amended to ad a section entitled “Chronic Intractable Pain Treatment Act” Here is a statement from that law:

“No disciplinary action by The State Medical Board solely for prescribing dangerous or controlled drugs for the relief of chronic intractable pain.”

Thus, physicians are immune from criminal action when legitimately treating intractable pain patients. The law then created a Pain Management Review Board. Complaints concerning the treatment of intractable pain patients are brought before this board. The review board ascertains whether or not the physician has violated the state guidelines and may take disciplinary action ranging from instruction and monitoring to license suspension.

Colorado

In 1996 Colorado adopted “Guidelines for Prescribing Controlled Substances for Intractable Pain” and made the following statement:

“Physicians who prescribe opiates for intractable pain should not fear disciplinary action from any enforcement or regulatory agency in Colorado if they use sound clinical judgment and care for their patients according to the principles of sound professional practice.”

In the introduction to the guidelines it is quite clear that the legislators recognized the necessity for aggressive treatment and also were aware of the inhibitions of physicians who fear criminal action. They emphasized the responsibility of the medical profession to care for these patients.

The guidelines are very comprehensive and complete. They cover evaluation, treatment plan, informed consent, periodic review, consultation, records, compliance with controlled substance laws and regulations, and addiction vs. physical dependence.

They conclude with this statement:

“The Board hopes to replace practitioners’ perception of inappropriate regulatory scrutiny with recognition of the Board’s commitment to enhance the quality of life of patients by improving pain management while, at the same time, preventing the diversion and abuse of controlled substances.”

Florida

A section of the Florida code is entitled Intractable Pain; Authorized Treatment.

The statements in this code are not as comprehensive as most other states but the intent is the same. Here is the key statement:

“Intractable pain must be diagnosed by a physician licensed under this chapter and qualified by experience to render such diagnosis. Notwithstanding any other provision of law, a physician may prescribe or administer any controlled substance under Schedules II-V, as provided for in s. 893.03, to a person for the treatment of intractable pain, provided the physician does so in accordance with that level of care, skill, and treatment recognized by a reasonably prudent physician under similar conditions and circumstances.”

Iowa

A portion of The Standards of Practice and Professional Ethics Code is entitled Standards of Practice — prescribing or administering controlled substances for the treatment of patients with chronic, nonmalignant or intractable pain. The stated purpose of the rule is to recognize the need to prescribe controlled substances to pain patients and contains basically the same guidelines as contained in other states (i.e Colorado) The only difference is that they do not make a clear distinction between intractable pain and chronic pain. We believe that permission for aggressive treatment with certain protections are necessary for intractable pain treatment to a greater degree than for other less severe pain cases.

Louisiana

A chapter of the Louisiana medical code is entitled Prescription, Dispensation and Administration of Medications. A subchapter of it is Medications Used in the Treatment of Noncancer-Related Chronic or Intractable Pain.

This state is very clear in its definitions and guidelines. For instance they define intractable pain as follows:

“Intractable Pain — a chronic pain state in which the cause of the pain cannot be eliminated or successfully treated without the use of controlled substance therapy and, which in the generally accepted course of medical practice, no cure of the cause of pain is possible or no cure has been achieved after reasonable efforts have been attempted and documented in the patient’s medical record.”

Here once again, state legislators address the needs of their constituents suffering from intractable pain. The guidelines are clear, comprehensive, and leave no doubt as to the necessity of prescribing aggressively and the protections offered by strict compliance with the guidelines.

First published on: March 1, 2005