June 2009

NAAG’s EOL project comes to an end with the posting of the June Update. Great strides have been made in the objectives of the project since its inception in 2003. States have re-worked legislation, regulations, and policies to ensure that the end-of-life choices made by their citizens are respected and that more consumers make their wishes known. States have enhanced their awareness of the need for balancing prosecution regarding diversion of controlled substances with ensuring that those in pain receive appropriate and adequate medication. The community of people who has come together to promote the ends of the project have included Attorneys General and their staffs, ethicists, medical personnel, advocates in the pain and end-of-life communities, and other stakeholders. We extend our thanks to all who have contributed to making this project so successful, especially Oklahoma Attorney General Drew Edmondson and the distinguished members of the project’s Advisory Board. We at NAAG offer everyone who has taken part in the end-of-life project our sincere appreciation and, in the words of the traditional Navy blessing, wish all of you “fair winds and following seas.”

News from the Attorneys General Offices

  1. Arizona Attorney General Terry Goddard spoke at a 2009 World Elder Abuse Awareness Day “Break the Silence” event, held by the Arizona Elder Abuse Coalition to educate citizens on how to recognize, prevent, and report elder abuse.
  2. Maine Attorney General Janet T. Mills announced that a New Portland nurse agreed to surrender her advanced practice registered nurse license after an extensive investigation revealed that she had violated numerous regulations involving the prescribing of controlled substances.
  3. New Jersey Attorney General Anne Milgram announced this month that a Newark man pled guilty to second-degree racketeering and second-degree conspiracy to distribute narcotics. He admitted filling fraudulent prescriptions for a multi-million dollar prescription drug ring, operated out of Bronx, New York. General Milgram also announced that a physician, Ronald Rahman, was arrested for selling prescriptions for controlled substances for cash. His license to practice medicine in New Jersey had expired in 2005. General Milgram has filed a complaint with the state Board of Dentistry against a Jersey City dentist who allegedly prescribed controlled substances to his girlfriend, who was not his patient.
  4. Pennsylvania Attorney General Tom Corbett announced that a doctor and his patient had been arrested on controlled substances charges. Although Dr. Christian Vittone and originally begun legitimately prescribing for his long-time patient, Michael Miller, it is alleged that, at some point, Vittone told Miller that, in order to get additional quantities of drugs, Vittone would need the names of family members and others for whom he could write additional prescriptions.
  5. Washington Attorney General Rob McKenna wrote a guest column for the Federal Way Mirror regarding financial exploitation of the elderly. Using the example of a Federal Way man who has been charged with theft from his 93-year old mother, General McKenna noted that current state law allows for only a sentence of about three months in such a case. Disappointed that the legislature had rejected his call for more stringent punishment and for improving the ability of bank and credit union employees to identify and report potential exploitation of the vulnerable, he stated that he will again advocate for the passage of such legislation next year.

Judicial Developments

  1. In Volkman v. U.S. Drug Enforcement Administration, No. 08-3802 (June 3, 2009),the U.S. Court of Appeals for the Sixth Circuit upheld the Drug Enforcement Administration’s denial of a physician’s application to prescribe controlled substances. Dr. Paul Volkman had appealed the denial on several grounds, including arguing that the denial of his registration was an attempt to “define the substantive standards of medical practice” in violation of the Supreme Court’s decision in Gonzales v. Oregon, 546 U.S. 243 (2006).
  2. Two recent prosecutions of parents for depending on prayer instead of medical assistance for their children who later died have been the focus of recent news stories. In Wisconsin, Leilani Neumann was found guilty of second-degree reckless homicide in the death of her 11-year-old daughter, Kara. Her husband will stand trial in July. In Oregon
  3. Carl and Raylene Worthington are on trial for the death of their 15-month-old daughter, Ava. They will be prosecuted under a 1999 Oregon law passed in response to a number of child deaths involving the Worthington’s church, the Followers of Christ in Oregon City. That law eliminates religion as a defense in most cases of medical neglect.
  4. Massachusetts Juvenile Court Judge Carol Erskine approved the removal of life support from a 7-year old boy who had traveled to the state to spend the summer with his father. According to prosecutors, Leslie Schuler, the child’s father, beat his son into a coma on Father’s Day.

Legislative Developments

  1. Senators Jay Rockefeller (D-WVA) and Susan Collins (R-ME) have reintroduced a more comprehensive version of their Advance Planning & Compassionate Care Act that would, among other things, require portability of advance directives from one state to another and provide concurrent care for children, making it possible for children to receive hospice services while still pursuing curative treatments. S. 1150 would also establish a National Geriatric and Palliative Care Service Corps modeled after the National Health Service Corps. Representative Earl Blumenauer (D-OR) has offered a companion bill, HR 2911, in the House.
  2. Senator Mark Warner (D-VA) has introduced a bill focused on end-of-life care. S. 1251 would expand Medicare’s hospice benefits to 18 months and require doctors, beginning in 2014, to offer certain Medicare patients information about advance directives and other planning tools. Failure to do so would cut off the doctor’s Medicare reimbursements.
  3. This month, Rep. Jim McDermott (D-WA) introduced legislation, H.R. 2705, which would use a federal income tax credit to strongly encourage Americans to obtain a legally enforceable advance directive regarding health care and emergency medical responses that would reflect their personal wishes for treatment and other options in the event of serious injury or illness.
  4. Florida’s Governor Charlie Crist has signed legislation, SB 440 and 462, which authorizes a prescription monitoring program in the state. The new law will also require pain clinics to register with the state Department of Health, mandates annual inspections of pain clinics, and authorizes the state Board of Medicine to adopt regulations for doctors dispensing pills at these clinics.
  5. Texas Governor Rick Perry has signed into law SB 911, which requires pain clinics to be licensed every two years and to submit to annual reviews.

Pain Management

  1. The current issue of Chest includes an article noting that pain in critically ill patients is often undertreated and, sometimes, even unrecognized in intensive care units. The authors advocate a review of prescribing practices, patient satisfaction surveys, clinician attitude surveys, and the adoption of evidence-based best practices.
  2. An interesting article, “Why Must Pain Patients Be Found Deserving of Treatment?” that discusses how physicians’ pre-conceived notions regarding patients in pain affects prescribing practices, appeared in the January 2008 AMA’s Clinical Case Index.

Prescription Drug Diversion

  1. Many local newspapers carried information about the increasing threat of prescription drug diversion this month. This article from Ohio’s Daily Record is an example. Another is California’s Contra Costa Times that carried a story regarding an increased use among college students of drugs such as Adderall, so-called “academic steroids.” According to the article, students with prescriptions both give and sell the pills to their colleagues and oftentimes “load up” on the medication during exam periods.
  2. Ohio physician Dr. Walter G. Broadnax was sentenced to five years’ probation and ordered to pay restitution after his pleading guilty to overbilling the Ohio Bureau of Workers’ Compensation for evaluation and management services. Broadax was also involved in a scheme with his attorney, Kenneth L. Lawson, to write prescriptions for controlled substances for persons not his patients. Lawson was sentenced to 24 months’ incarceration in April.
  3. Former Naples, Florida, internist, Harsh Sharma, entered a plea to three counts of possession with the intent to distribute pain medications. He was arrested last year by undercover agents who discovered an excess of 750,000 hydrocodone tablets at his residence and $1 million in cash. Sharma agreed to forfeit $250,000, his 10-acre property, his cars, and his computer. He will be sentenced in September. Sharma admitted to authorities that he was addicted to painkillers. His license to practice medicine was revoked in June 2007.
  4. Osteopath Dr. Theodore Kapanjie pled guilty to failing to maintain records relating to the receipt and distribution of controlled substances. Dr. Kapanjie ordered controlled substances for his practice, including hydrocodone, clonazepam, and phentermine, and either ingested them himself or gave them to family members without keeping the records legally required or writing prescriptions. He will be sentenced in August.
  5. Federal officials have charged two Houston-area doctors with Medicare fraud and the dispensing and distributing of controlled substance outside the scope of professional practice and not for a legitimate medical purpose. Dr. Arun Sharma and his wife, Dr. Kiran Sharma, operated the Allergy, Asthma, Arthritis and Pain Centers in Webster and Baytown, Texas.
  6. In Tampa Bay, Florida, law enforcement and medical personnel met to discuss the civil, criminal, and ethical rules involved in prescription drug diversion. Law enforcement personnel gave tips to doctors on how to spot doctor shoppers, including providing examples of faked medical tests.
  7. Sarasota County, Florida, has launched a pharmaceutical diversion investigative unit to respond to the county’s large number of fatal overdoses. Florida has the highest per-capita overdose in the country and Sarasota County has twice the state’s average of fatal overdoses, with the 20-24 age group having the highest rate. The unit will seek advice from medical personnel and pharmacists and will partner with social service agencies to provide abusers with treatment.

Other News of Interest

  1. During the Health Care Forum held at the White House by President Obama, broadcast by ABC News and hosted by Charles Gibson and Diane Sawyer, end-of-life health care and medical futility were discussed by President Obama and others.
  2. A San Antonio, Texas, medical ethics expert, Craig Klugman, has launched a new website in an easily navigable format that allows Texas residents to create advance directives.
  3. In the May/June 2009 issue of American Journal of Medical Quality, a physician and a nurse report the results of a survey regarding end-of-life decisions in an intensive care unit. Only 53% of physicians routinely read patients’ advance directives. Other results of the survey showed that 17% of physicians would follow family wishes that clearly went against instructions in an advance directive and 24% of physicians never or rarely obtain and/or write a DNR order for a critically ill patient.
  4. Great Britain’s General Medical Council is finalizing guidance for doctors regarding discussions with parents on whether to discontinue life support to their critically ill newborn babies. The guidance is being developed in response to criticism that doctors are leaving families out of the decision-making process.
  5. The producers of a new TV series is seeking first-person stories from patients, their loved ones, and medical personnel about how their very personal experiences have shaped their views and beliefs on death and dying and how these values have shaped the decisions they have made for themselves and others. Those who would like to share their experiences with others are invited to post their stories on the show’s website.
  6. And, to end the Updates, on a lighthearted, happy note: Great Britain’s Jon Matthews was diagnosed with mesothelioma in April 2006. Eight months ago, doctors told him not to make plans for Christmas. Mr. Matthews placed a ₤100 bet with a major British gambling company, which gave him 50 to 1 odds against his living until June. On June 1, he received ₤5,000. Mr. Matthews plans to give half his winnings to a cancer charity.

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