Baby Steps

Yesterday, the DEA announced that it would allow doctors to write multiple, post-dated painkiller prescriptions for chronic pain patients. This is good news. The prior restrictions were odious, and heartlessly required people suffering from chronic pain to make multiple trips to doctors and pharmacists to get their medication.

This problem is worse than it sounds. Because the DEA's witchhunt has scared physicians away from palliative therapy, many of these patients have to drive several hours to find a doctor who is willing to treat them. Doctors willing to administer the most promising chronic pain treatment — high-dose opioid therapy — are even harder to find.

But yesterday's decision doesn't go nearly far enough. And the DEA seems to be trying to use this one concession to show its "reasonableness," thus heading off criticism over the larger, more important issue — it's overly aggressive pursuit of doctors.

Here's what won't change: The agency will continue to substitute its own judgment for the medical opinions of doctors. It will continue to define some high-dose treatments as off-limits, and it will continue to use malpractice standards, meant for civil litigation, in criminal court. The DEA also still refuses to give doctors a set of guidelines they can follow to guarantee they won't be prosecuted, thus giving the agency a great deal of leeway and leaving doctors who engage in the experimental high-dosage treatments in legal ambiguity. The agency will also continue to deny doctors a "good faith" defense to prosecution.

DEA administrator Karen Tandy, who has a history duplicity on this issue, made some misleading and downright false comments in a USA Today story yesterday on her agency's change in policy:

The new policy statement does not include a specific list of do's and don'ts, but the DEA Administrator Karen Tandy says doctors should be able to glean from the listing of prosecutions on the agency's website what it takes to violate the law. 

This is ridiculous. Instead of actual guidelines to see if they're complying with the law, doctors are instead being instructed to read up on a "rogue's gallery" of DEA trophies to determine if their own prescription habits are potentially criminal. That would be like the IRS refusing to give any real guidelines on how much money we owe the government, but instead refering us to a list of the "20 biggest tax cheats of all time" for guidance.

More Tandy:

Out of more than 1 million doctors who are registered with the DEA to prescribe such narcotics, the agency prosecuted 67 last year for prescription abuse. Tandy says the DEA has targeted doctors who have strayed far outside accepted medical practice, including some who have prescribed medically unnecessary drugs for cash or sex, some who have demanded kickbacks, and invented patients or fed their own addictions. 

Tandy is hyperbolizing. Included among those she says "have strayed far outside the accepted medical practice" are William Hurwitz and Bernard Rotschaeffer. The case against each of these men is far from conclusive. Pain activists like Siobhan Reynolds and Dr. Frank Fisher regularly send out new examples of doctors prosecuted by the DEA. In a few cases, it looks like the doctors were clearly unethical. In most, the evidence is far from conclusive and appears to be more attributable to the DEA's ignorance of how high-dose therapy works, or that its own policies are chasing doctors away from this treatment, causing the few doctors left in the field to have no choice but to see more patients and write more prescriptions.

Tandy's "67 of one million" statistic is also misleading. The one million number is the total number of physicians, in any line of practice, who are licensed to prescribe narcotics. The number who specialize in pain treatment is far, far lower. And the number willing to engage in high-dose therapy — the only therapy that seems to work on chronic pain — is much lower still. That 67 comes from an already small and dwindling pool of doctors willing to administer this promising line of treatment. Given that the DEA makes a big deal out of each arrest, including holding press conferences and putting out statements to the media, it isn't difficult to see how each arrest would make it yet more difficult for pain patients to get adequate treatment.

More Tandy:

The DEA investigates doctors "who knowingly and egregiously put drugs into the hands of traffickers and abusers," Tandy says. "This isn't just questionable behavior. There is no gray area here." 

There most certainly is. See the case of Dr. William Hurwitz, one of the DEA's most sought-after and hard-won trophies. An appeals court recently set Dr. Hurwtiz's conviction aside, finding that the government was wrong to deny Dr. Hurwitz to mount a "good faith" defense against charges that he prescribed painkillers to drug addicts.

More Tandy:

Tandy says she doesn't want to tell doctors how to treat patients. "The DEA does not belong in the practice of medicine. We want doctors to be able to prescribe drugs when people are in pain. We're trying to give them a comfort level." 

But if the DEA has its own definition of what is and isn't "accepted medical practice," and — worse — won't tell doctors what that definition is when it comes to prescribing painkillers, thus leading doctors to err on the side of undertreatment, we have most certainly entered the realm of drug cops dictating medical practice.

The DEA has taken a lot of heat from pain activists, academics, media critics, and civil libertarians on this issue. Yesterday's minor shift in policy should by no means be the end of the debate.

For more on this issue, see here and here.