Since the late 1990s, the U.S. Drug Enforcement Administration has allied
with state and local law enforcement agencies to stamp out abuse of the
painkiller OxyContin. Citing rises in emergency room episodes and
overdoses associated with the drug (both of which have been roundly
disparaged by critics), the DEA insists its "Operation
OxyContin" is a necessary reaction to the diversion of the
prescription narcotic for street use.
Unfortunately, despite frequent robberies and burglaries of pharmacies,
doctors' offices, and warehouses where prescription medications are stored
and sold, the DEA has focused a troubling amount of time and resources on
the prescriptions issued by practicing physicians. It's easy to see why.
Doctors keep records. They pay taxes. They take notes. They're an easier
target than common drug dealers. Doctors also often aren't aware of asset
forfeiture laws. A physician's considerable assets can be divided up among
the various law enforcement agencies investigating him before he's ever
brought to trial.
Over the last several years, hundreds of physicians have been put on trial
for charges ranging from health insurance fraud to drug distribution, even
to manslaughter and murder for over-prescribing prescription narcotics.
Many times, investigators seize a doctor's house, office, and bank
account, leaving him no resources with which to defend himself. A few
doctors have been convicted. Many have been acquitted. Others were left
with no choice but to settle.
All of this has been happening just as the field of chronic pain
management has made some remarkable progress. The development of
opium-based narcotics like OxyContin (also known as "opioids")
has been a Godsend to the estimated 30 million Americans who suffer from
chronic pain. Opioids are safe, effective, and, contrary to conventional
wisdom, very rarely lead to accidental addiction when taken properly. Most
of the medical literature puts the rate of such addiction at less than one
The DEA's campaign puts law enforcement officials in the troubling
position of determining what is acceptable medical practice in a field
that's dynamic, still emerging, and relatively experimental. The very fact
that any course of treatment "beyond the normal practice of
medicine" can be cause for cops to launch a career-ending
investigation is enough in itself to stifle innovation in palliative
The high-profile arrests and prosecutions of physicians (up to 200 per
year, by one estimate) have caused many doctors to under-prescribe or
refuse to see new patients. It corrupts the candor necessary for an
effective doctor-patient relationship. Many physicians have left
palliative therapy for less controversial practice. The Village Voice
reports that medical schools are now advising students to avoid pain
management practice altogether.
To calm its critics, the DEA commissioned several pain specialists to work
with federal officials to put together a set of guidelines for physicians
who treat pain with opioids. These guidelines were posted on the agency's
website, and most doctors were led to believe that following the
recommendations would keep them safe from prosecution. For a short time,
experts, doctors, and drug warriors had reached a compromise.
But it didn't last long. Late last year the guidelines mysteriously
disappeared from the DEA's website. Their removal coincided with the trial
of Virginia pain specialist, Dr. William Hurwitz, whose attorneys had
attempted -- and failed -- to admit the guidelines as evidence on the
belief that Hurwitz's practice conformed to their parameters. Hurwitz was
eventually convicted, and faces a life sentence later this month.
A few weeks after Hurwitz's judge refused to admit the guidelines as
evidence, the DEA renounced the contents of the brochure, and in a brief
explanatory note made clear that the agency wasn't bound by any standards
or practices when it came to determining what physicians it would
investigate. The agency essentially declared it had carte blanche to
launch an inquiry.
The renunciation sent shockwaves through the medical community. One doctor
told the Washington Post that "over 90 percent" of patients and
doctors could be subject to prosecution under the DEA's new rules. Rebecca
J. Patchin, who serves on the board of the American Medical Association,
told the Post, "Doctors hear what's happening to other physicians,
and that makes them very reluctant to prescribe opioids that patients
might well need."
David Jorenson, the academic pain specialist who headed up the committee
that authored the original guidelines, sent the agency a sharply-worded
rebuke. Three professional associations representing pain specialists
followed with a letter of their own. And last January, the National
Association of state Attorneys General also sent a letter to the DEA,
expressing concern that the agency was overstepping its bounds, and
interfering with the legitimate treatment of pain. The letter was signed
by 30 AGs from both parties.
The DEA remains obstinate, insisting its revocation of the guidelines did
not represent a shift in policy, and that its pursuit of doctors should
have no effect on legitimate pain treatment, despite that the experts it
originally consulted say otherwise.
The attorneys general letter to the DEA in particular presents a challenge
for the Bush administration. The White House claims to value the
principles of local rule, states' rights, and federalism. But those
principles seem to flitter away when it comes to drug policy. The Justice
Department, for example, has repeatedly gone to court to prevent states
from allowing physician-assisted suicide and medicinal marijuana, in some
cases going so far as raiding convalescent centers and asserting the
supremacy of federal law in prosecuting those who grow marijuana in states
where it's permitted.
Thirty state AGs have said that federal drug policy is interfering with
legitimate medical practice. The White House now has two choices. It could
order the DEA to end its pursuit of physicians, and leave medical policy
to state governments and medical boards, where it belongs.
Or it could stand by the DEA's troubling anti-opioid campaign, and watch
as more well-intentioned physicians go to jail, and millions of Americans
continue to endure unnecessary grief.
by Radley Balko, a policy analyst with the Cato Institute.