Attorneys general step into pain prescribing debate

A new voice has joined the chorus claiming that recent actions by the U.S. Drug Enforcement Administration appear to impede the prescribing of controlled substances to treat pain.

The National Assn. of Attorneys General, in a Jan. 19 letter, called on DEA Administrator Karen P. Tandy to meet with representatives of the organization to "find ways to prevent abuse and diversion without infringing on the legitimate practice of medicine or exerting a chilling effect on the willingness of physicians to treat patients who are in pain."

The letter was signed by the attorneys general from 29 states and the District of Columbia. The effort was led by Oklahoma Attorney General and NAAG Past President W.A. Drew Edmondson, who said he was approaching the issue from a consumer-protection standpoint.

"If our consumers are not receiving what they need and want as health care consumers, then that's a problem for the attorney general," Edmondson said. "The new position of the DEA has at least the potential -- if not the actual effect -- of being a barrier to doctors prescribing the proper drugs for treating pain. I fully support efforts to combat diversion, but we have to find ways to combat diversion that does not impact on good patient care."

Edmondson said it appears that investigating physicians might be the new focus of DEA anti-diversion efforts, and he disagrees with that approach. "We should concentrate on drugs that are illegally on the streets and work backward from that to find out how they got illegally on the streets," he said. "It should not be the other way around looking at doctors."

In August 2004, after working for more than two years with experts in the field of pain medicine, the DEA released a frequently-asked-questions document on prescribing controlled substances for pain treatment that sought to balance physician concerns about effective treatment and law enforcement issues regarding diversion of prescription drugs. The DEA removed the document from its Web site in October 2004, and posted a notice in the Nov. 16 Federal Register stating that the document contained incorrect information. Some physicians said the new policy statement appeared to criminalize more prescribing activity.

On Jan. 18, another notice was posted notifying the public that the agency was in the process of preparing another document and was seeking comments from physicians and other interested parties about what they wanted the document to include.

The NAAG letter expressed surprise that the DEA "apparently shifted its policy" from balancing medical and law enforcement concerns.

"We are concerned that state and federal policies are diverging with respect to the relative emphasis on ensuring the availability of prescription pain medications to those who need them," the letter stated.

DEA spokesman Rusty Payne denied there had been a shift in policy.

"DEA has not changed any policy related to this issue," Payne said in an e-mail. "The reason for taking down the FAQs was simply because there was some information that was incorrect. ... DEA has not changed its enforcement emphasis with respect to investigating physicians involved in the illegal prescribing of pharmaceutical narcotics."

He added that no meeting had been scheduled with the NAAG.

Attorney and pain medicine advocate Mary Baluss, the director of the Pain Law Initiative in Washington, D.C., said she cheered when she first saw the NAAG letter, but then her enthusiasm was dampened somewhat when she saw that attorneys general for 21 states had not signed the letter.

Edmondson, however, was satisfied with the signatures the letter received. "Getting all 50 to sign is pretty near impossible -- getting three attorneys in a room to agree on something is problematic," he said.

Edmondson's interest in pain treatment stems from his work promoting better end-of-life care.

He said that interest was sparked when he attended a bioethics program where he learned that most Americans would prefer to die at home with friends and family, free of pain and without unwanted medical intervention. Instead, he said, most Americans die in pain at a hospital or nursing home.

"I was thinking, 'What's wrong with this picture and what can I do about it?' " Edmonson said.

He formed an end-of-life care task force in Oklahoma and, while serving as the 2002-03 NAAG president, selected end-of-life care as the subject of his presidential initiative.

"There has been an increased focus, I believe, by medical licensing boards on the undertreatment of pain and, with the shift by the DEA, doctors are in a tough, tough position," Edmondson said. "Anything we can do to lessen that squeeze, I believe, is helpful, and that's the purpose of the letter to the DEA."

American Medical Association policy states that "physicians who appropriately prescribe and/or administer controlled substances to relieve intractable pain should not be subject to the burdens of excessive regulatory scrutiny, inappropriate disciplinary action or criminal prosecution."