For the first time in more than a decade, the Drug Enforcement Administration's (DEA) heavy-handed intrusion into the field of medicine came under congressional scrutiny last week. The broad-ranging review of the DEA's regulation of medicine came at a July 12 hearing before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security chaired by Rep. Bobby Scott (D-VA).
While the hearing also included testimony and members' questions about the DEA's role in pursuing medical marijuana dispensaries and blocking marijuana research (see this newsbrief), as well as its apparent underestimation of the amount of pseudoephedrine needed for legitimate commercial and medicinal uses, testimony by Siobhan Reynolds of the pain patients and doctors advocacy group Pain Relief Network and attorney and chronic pain advocate John Flannery put the issue of the federal prosecutions of doctors who prescribe high-dose opioid pain medications front and center.
The hearings gained an added sense of timeliness the following day, when nationally-known pain management physician Dr. William Hurwitz was sentenced to five years in prison on drug trafficking charges. Hurwitz had originally been sentenced to 25 years in prison, but his original verdict was overturned and he was convicted of 16 drug trafficking counts in an April retrial. While pain patient advocates and Hurwitz supporters believe he should never have been convicted at all, they viewed the much shorter sentence -- which with time-served could see Hurwitz free in 17 months -- as a victory of sorts.
Still, Hurwitz remains behind bars for what is at best laxness in dealing with some patients who lied to him and resold drugs he prescribed them for chronic pain. As such, he is emblematic of the growing number of physicians who have been persecuted and prosecuted by the Justice Department and the DEA, as well as state-level prosecutors who have taken their lead from the feds.
"The subcommittee has received numerous complaints about the DEA's regulation of medicine," said Rep. Scott as he opened the hearing. Turning to prescription drug abuse, Scott noted that, "When it was first introduced, OxyContin abuse became rampant in such areas as Appalachia and rural New England. DEA responded by adopting the OxyContin action plan, which involved prosecuting medical doctors who prescribed high doses of painkillers. The DEA claims that this policy was not intended to impact the availability of legitimate drugs necessary to treat patients; however, the evidence suggests that the DEA's decision to prosecute doctors has created a chilling effect within the medical community, so that some doctors are unwilling to prescribe pain medication in sufficiently high doses to treat their patients. The result is that many Americans live with chronic untreated pain."
The first witness was DEA Deputy Assistant Administrator for the Office of Diversion Control Joseph Rannazzisi, who immediately took issue with the notion that the DEA was trying to regulate medicine. "The title of this hearing, 'DEA's Regulation of Medicine,' is inaccurate," he complained. "DEA does not regulate medicine or the practice of medicine. DEA does investigate violations of the Controlled Substances Act, regardless of the source of the violation, be it a Colombian cocaine dealer, a marijuana trafficker or a doctor who abuses the authority to dispense controlled substances."
Saying that DEA considered the diversion of prescription drugs one of its most significant challenges, Rannazzissi said "small numbers of unscrupulous doctors" were part of the problem. Still, he said, the agency wasn't targeting doctors. "Generally speaking, in any given year, DEA arrests less than 0.01 percent of the 750,000 doctors registered with DEA for a criminal violation. More often than not, those violations are egregious in nature and are acts clearly outside the usual course of accepted medical standards."
That brought a sharp retort from the Pain Relief Network's Reynolds, whose life-partner, Sean Greenwood was a former Hurwitz patient who died last year as the family crisscrossed the country searching for a doctor who would treat his chronic pain, during her subsequent testimony. "The DEA contends that they only prosecute 0.01 percent of registrants," she said. "However, that's a misleading figure, because a very small number of registrants prescribe opioid medicines and an even smaller number would prescribe in doses that would relieve serious pain."
"So the actual number of doctors who are arrested is far greater, when you look at the correct denominator, which this leads me to my next point, which I think is really the most important point," Reynolds continued. "This is a government agency that plays fast and loose with the facts, uses incredibly inflammatory rhetoric, talks about crime and addiction and dependence and puts them all together and maybe has no cognizance of the fact that this all ultimately falls on and stigmatizes very, very sick people. But that is in fact what happens."
When it came his turn to testify, Flannery, a former prosecutor and congressional staffer and author of "Pain in America -- And How the Government Makes It Worse," took issue with Rannazzisi's taking issue with the hearing's title. "The title of the hearing, which is the regulation of medicine by DEA is, unfortunately, an apt one," Flannery retorted. "DEA has been regulating medicine, and for them to come here and say that they don't know it means that they either are consciously doing it or recklessly doing it. And I can't believe they're doing it recklessly, because we see the quality of people who work at the department. And that means there's an ideological purpose in regulating medicine. They do not approve of certain medical practices. And, if that is it, they should bring it to the Congress and tell us why, with statistics and explanations, because then it should be a formal policy rather than the secret one that it is presently."
Flannery accused DEA and the Justice Department of "bait and switch" tactics. The legal standard for criminal prosecution of doctors is that they have to be acting outside the course of professional medicine with the intent to push drugs, not treat patients, Flannery noted. "They create these standards on a case-by-case basis," Flannery said. "And how do they do that? They bring a doctor into the courtroom that they pay, who travels around the country, and the standard is created on a case-by-case basis by the DEA doctor."
Determinations of what constitutes criminal conduct by doctors -- as opposed to simple malpractice -- are better left to state medical boards, Flannery said under sympathetic questioning from Rep. Scott.
Ranking minority member Rep. Randy Forbes (R-VA) carried water for the Bush administration, asking whether marijuana should be legalized, worrying about teen prescription drug overdoses and "pharma parties," and asking about marijuana growing in national forests, while Rep. Louie Gohmert (R-TX) provided inadvertent comic relief. Gohmert wandered into the hearing room, announced that voters in his district didn't support marijuana legalization, then launched into a bizarre tale about a bag of sterilized marijuana seeds from which some seedlings sprouted he had seen in a court case once before retreating back into silence.
While last week's hearing marked the first oversight of the DEA's regulation of medicine in more than a decade, it wasn't enough, Reynolds told the Chronicle. "Although I submitted written testimony, we were limited to five minutes, so I spent my time basically explaining how offended I was at the farcical nature of the DEA and ONDCP testimony, denying the possibility of a chilling effect on physicians."
"This is a step on a slow journey toward enlightenment," Flannery told the Chronicle. "In Jerrold Nadler and Bobby Scott, you can't find two better lawyers who are sensitive to these issues, but the Congress is immersed in lots of other business, and it takes a lot to move members from their preconceived notions of what the drug war is about. Very few understand this is about the government invading medicine -- not prosecuting drug dealers. We will have to turn around an ocean liner in order to get action."
But hearings like last week's are a first step. "I've asked for more hearings, but I'm not getting the impression that's the next step," said Reynolds, who was invited to testify by Rep. Nadler. "What I've been told is that we need to educate the Congress. We've been doing that, but there seem to be a lot of closed ears on this issue. Still, more and more, there is some awareness that this is a terrible problem."
Reynolds added that she and others are working with the committee to seek legislation that would ease the DEA pressure on pain doctors. "Both Nadler and Bobby Scott showed real concern and came up afterward and asked what they can do."
Nadler spokesman Shin Inouye told the Chronicle Thursday that Nadler is looking into the matter. "He's very interested in the issue, but I haven't heard anything specific about new legislation yet," Inouye said.
There is a long way to go before America's estimated 40 to 70 million chronic pain patients and the doctors who seek to treat them can live without the fear of the DEA, but last week's hearing was a good -- if insufficient -- beginning, and lays the groundwork for further action.
The written testimony of all witnesses at the hearing is available online here.