DEA Enforcement versus Pain Practice
There continue to be media reports on the so-called “war on doctors” especially with regard to pain prescribing. The coverage typically highlights investigations, prosecutions, and doctors leaving pain medicine and abandoning pain patients. Anxiety levels among pain doctors further increased late last year with the withdrawal of the federal Drug Enforcement Administration’s (DEA) policy statement or FAQs from their website. The about-face, especially regarding policies that had been thoughtfully crafted by discussions between DEA officials and pain experts, engendered a lot of confusion and fear among doctors about whether they could be prosecuted under the old rules, specifically in the areas of prescribing quantity and serial prescribing. But national experts, looking at this state of affairs from various professions, say two things: Yes, there is a lot of confusion, but there is a lot physicians can do to allay both their anxiety and their actual potential for getting in trouble.
Attorney Jennifer Bolen, formerly a DEA prosecutor for 14 years and now in private practice, has built a substantial practice on educating doctors how not to be afraid. She says that when they learn about the laws and regulations and are given efficient ways to handle procedures, “They tend to say, ‘Oh, yeah, I get it.’” And then go on to take care of their patients.
David Joranson, MSSW, director of the Pain and Policy Studies Group at the University of Wisconsin, says if it weren’t for the current dust storm caused by DEA statements, we would be able to see that states, in particular, “have done some spectacular efforts to improve the degree of balance in the policies that affect physicians who prescribe opioids.”
Sources of Confusion
Due to the apparently contradictory information coming from the DEA, it is hard for doctors in pain medicine to know how to practice to avoid becoming a target of investigation. It does not help that there are apparently no hard numbers on what is happening. According to several experts, including a DEA spokesperson, there is no comprehensive data source on whether investigations or other actions targeting physicians have increased. In fact, many news and other reports have focused on individual cases, sometimes the same individual cases, without providing evidence of trends. The DEA itself, although taking much of the flack for the controversy, says repeatedly that it has not changed its policies, that it investigates a miniscule percentage of physicians registered to prescribe Schedule II drugs and that those numbers have not increased over recent years. According to the agency, in 2004 it investigated 737 physicians and arrested 42, out of almost a million doctors registered.
It is interesting to note that the AMA’s CME program on prescribing issues states that state medical boards are the agencies most likely to investigate improper prescribing. Yet, Dale Austin, the vice president of the Federation of State Medical Boards, which keeps a database of all state medical board actions, says, “Those numbers have not changed. There are not more actions being taken today than there were five years ago.” Austin also indicates state board cases today are similar in type to those five years ago. And, he contends, “The individuals who have actions against them are folks who set up prescription mills, quite frankly.”
Joranson, whose center examines all states’ policies in this area and gives them grades accordingly, is very impressed with states’ progress, at least in policy. For example, he says, about 34 states have recognized that physicians are concerned about scrutiny and states have addressed that issue by offering basic parameters for what constitutes legitimate prescribing. “Medical boards and legislatures have been listening to what the issues are and they are making changes accordingly. It is a very hopeful note. But it is hard to hear that note with so much chaos in Washington,” he says.
But a range of observers say they know of no overview of what is happening, in total, with state boards, local and state law enforcement, health insurance plans and civil lawsuits. Questions about whether there is simply a lot of attention on particular actions—as some contend—or an actual increase in pressure are difficult to answer. On one hand, Austin does feel state boards have a sense of all kinds of actions related to physicians in their states and he says they are not reporting any change.
On the other hand, John Burke, vice president of the National Association of Drug Diversion Investigators, thinks there is no question there are now more investigations. He is quick to add he feels some of the increase is legitimate: it reflects actions against the few bad actors, the kind of actions that should have occurred more frequently in prior years. “Prescription drug abuse has long been an issue, but most law enforcement has not recognized that and still doesn’t today,” says Burke, who is a drug diversion investigator in Ohio and teaches other law enforcement officers about the issue. But perhaps, he says, national attention on the problem has induced local law enforcement officers to think more about Dr. So-and-So who has a line of patients outside his office.
Indeed, attorney Bolen thinks that although doctors are freaked out about the “DEA stuff,” state law enforcement and insurance companies are far larger sources of pressure. And health plans, she notes, create further anxiety by sending directives to doctors, trying to get them to change their prescribing patterns. Or the insurance plans send drug utilization review letters. Insurance investigations, she notes, can actually prompt the beginning of criminal cases through a Medicaid fraud control unit or a state attorney general’s office. Bolen also thinks a large part of the actions are civil lawsuits, including allegations that a doctor got a patient addicted or was responsible for a death. Those actions, she notes, create problems for physicians whether the cases go forward or are tossed out of court. Bolen also feels there may be increased actions from some state licensing boards.
The DEA’s FAQs Controversy
But if DEA is not the source of most of the anxiety of doctors, it did provide a surprising new locus of confusion with its actions last year on “the FAQs,” as they were called. Over several years, the agency had worked with organizations of pain professionals and others to come up with guidelines that physicians could work with. Last August, it posted on its web site a set of “Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement,” which was the product of a work group of DEA officials and pain experts.
But a few weeks later, the agency flabbergasted many in both health care and law enforcement by pulling the FAQs from its web site, saying they contained misstatements and, since they had not been officially published in the Federal Register, they were not to be construed as official DEA policy.
Then in November 2004, the agency published an “interim policy statement” in the Federal Register, saying, among other things: