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Despite progress, much pain still poorly managed
Attorneys general should play a role in advising state agencies and educating others about how laws and policies related to end-of-life care should be enforced, especially if they seem to be at odds with patient rights. The most salient example of this conflict has been the ongoing battle between end-of-life care advocates and law enforcement agencies. Efforts to stem drug diversion, particularly for the drug OxyContin, have physicians fearing prosecution if they regularly prescribe opioids or if a terminally ill patient dies.
Drew Edmondson, attorney general for Oklahoma and outgoing president of the National Association of Attorneys General (NAAG), says his colleagues must use their positions to educate physicians, prosecutors, medical boards, and others about the intention behind federal and state anti-drug laws. "The NAAG should convene the parties and explain that the law is not intended to punish physicians who use these drugs appropriately," he adds.
In the same year that Edmondson made improving end-of-life care a focus of his one-year term as NAAG president, there have been encouraging signs that honest physicians have little to fear, while those who fail to provide comfort through pain management drugs are at risk for criminal punishment or professional sanctions.
According to the American Medical Association (AMA) News in June, three studies concerning medical boards, prosecution, and pain treatment guidelines showed progress in differentiating criminal physicians from compliant ones. The studies were published in the Spring 2003 issue of the Journal of Law, Medicine & Ethics.
The first study was a survey of 38 medical boards, which found that boards were abandoning drug quantity as a marker of questionable practice and assessing instead whether a doctor properly evaluated a patient and followed the board’s pain treatment guidelines. A second study of county prosecutors in Oregon, Maryland, Washington, and Connecticut found the likelihood of investigation or prosecution for prescribing medications for pain management extremely low. A third study said more boards had adopted pain management guidelines but recommended that they take further steps to train investigators about pain standards and circulate guidelines to physicians.
When the AMA last published its annual state-by-state review of pain policies, it found encouraging data. State regulators, according to the AMA, are taking unprecedented steps to help physicians provide relief to cancer patients and others suffering from chronic pain. However, Aaron M. Gilson, PhD, AMA’s pain policy expert, says despite the availability of many pharmacologic and nonpharmacologic approaches to the treatment of pain, pain remains inadequately managed, due in part to concerns about addiction and legal sanctions.
The AMA’s annual report in 2001 found a steady adoption of state pain policies that ease constraints surrounding the use of opioid analgesics for the treatment of pain. These policies were developed by medical regulators and can result in more pain patients receiving appropriate treatments, says Gilson, chief policy researcher and assistant director of the Pain & Policy Studies Group at the University of Wisconsin in Madison.
State medical boards: Pain is undertreated
In 1998, the Federation of State Medical Boards developed model guidelines that encourage the use of controlled substances for pain therapy and give physicians guidance in the use of controlled substances. The guidelines also recognize that pain is undertreated, partially due to physician concern regarding investigation by state regulatory agencies and medical boards. "This is unprecedented policy development," Gilson explains. "Not only did it come from a national regulatory organization, but it also represents input from a multidisciplinary panel of experts from medicine and from medical regulation." The policy was disseminated to medical boards in each state.
The report found that state policies addressing the appropriate use of controlled substances for pain management increased from six in 1989 to more than 80 in 2001; some states have more than one policy. In addition, the report suggested that 22 states have developed policies addressing the use of controlled substances for pain that are based on the model guidelines. Twelve states adopted the policy in its entirety. "Most states now have some type of policy relating to pain management," Gilson stresses.
Still, the AMA says some state policies, especially those not based on the model guidelines, contain language that has the potential to impede the use of opioid analgesics and restrict patient access to adequate pain management. "Consider-ing the increased collaboration between medical regulators, drug regulators, and the health care community, I am hopeful that these policies translate into more appropriate pain management for patients and lessened concerns about unwarranted discipline of physicians," Gilson adds.
In 2003, there were a number of other developments in pain management at the state level. In Florida, proposed prescription tracking legislation failed to pass in the final moments of the state’s legislative session. Many complained that tracking systems would have a chilling effect on physician prescribing patterns. Rather than risk investigation and discipline as a result of one interpretation of prescribing habits tracked on a system, physicians may not prescribe opioids at all, critics say.
The bill would have created a program to track prescriptions for Schedule II, III, and IV medications, which include many pain and psychiatric drugs. Supporters say a tracking program would prevent prescription drug overdose deaths.
Purdue Pharma, the Connecticut-based manufacturer of OxyContin, pledged $2 million toward financing a tracking program last year as part of an agreement with the Florida attorney general’s office to end an investigation into the company’s marketing practices. This is the second year that Florida legislators have considered and declined to pass legislation on the program.
In Virginia, the state received $180,000 from the U.S. Department of Justice to fund a prescription-tracking program approved by the state legislature last year. The two-year pilot program will focus on counties in southwest Virginia, where prescription drug abuse has become a major problem in recent years. The program will allow police to access a database containing information about prescriptions for Schedule II drugs, such as OxyContin, methadone, and Percocet.
Virginia Attorney General Jerry Kilgore favors the tracking system, saying the database will be useful in curbing abuse of OxyContin.
The database is expected to be operational by late summer or early fall, according to Robert Nebiker of the state’s Department of Health Professions, which will oversee the program’s operation. It will be accessible only by law enforcement officers who have an active investigation into a patient or doctor.
The law creating the pilot program makes unauthorized release of database information a misdemeanor.
U.S. Rep. Frank R. Wolf (R-VA) has asked the U.S. Department of Health and Human Services to restrict OxyContin prescriptions to patients with severe pain. Wolf also has requested that Health and Human Services Secretary Tommy G. Thompson take steps to warn the public about the dangers of OxyContin abuse. His letter to the agency cites a link between OxyContin and overdose deaths and robberies in his home state and argues that "[t]he drug should not be marketed to treat moderate pain." Wolf chairs the House Appropriations subcommittee, which oversees the Commerce, Justice, and State departments and related agencies.