March 2008

News from Attorneys General Offices

  1. All 56 of the nation’s Attorneys General signed a letter asking congressional leaders to restore funding to the Edward Byrne Memorial Justice Assistance Grant Program. The letter noted that the cuts contemplated would drastically curtail drug abuse/enforcement programs in the states.
  2. Arizona Attorney General Terry Goddard delivered a luncheon address at the 11th annual Pinal-Gila Elder Abuse Conference. The annual conference provides training and information on the prevention of elder abuse and exploitation.
  3. Massachusetts Attorney General Martha Coakley announced that a certified nurse assistant was arraigned in connection with allegedly removing the medication from pain control patches prescribed for a nursing home resident. General Coakley also announced the indictment of a former nurse assistant for allegedly sexually assaulting a 93-year old nursing home resident diagnosed with Parkinson’s disease and dementia.
  4. Nevada Attorney General Catherine Cortez Masto recently announced the conviction of Dr. Harriston L. Bass on one count of second degree murder, forty-nine counts of sale of a controlled substance, and six counts of possession of a controlled substance. His sentencing has been scheduled for April 22. Dr. Bass was arrested and charged in December 2006 following a six-month investigation by the Nevada Attorney General’s Office.

Judicial Developments

  1. In January, the Wisconsin Court of Appeals held that the Emergency Medical Treatment and Labor Act (EMTALA) does not apply to a newborn whose mother has been admitted to the hospital as an in-patient. In Preston v. Meriter Hospital, No. 2006AP3013 (Wis. Ct. App. Jan. 24, 2008), the court reasoned that a hospital admitting a pregnant woman is admitting two patients, the mother and the unborn child. In this case, the mother, in premature labor, was admitted to the hospital’s birthing center. Her son, Bridon Michael Johnson, was born the next day, weighing only one and one-half pounds. Although he could not survive without resuscitation and the administration of oxygen and fluids, the hospital did not treat him. He died two and one-half hours later. In an article analyzing the decision in ABA Health eSource, Thaddeus Pope of the Widener University Law School cautions that the facts in this case arose prior to the Born Alive Infant Protection Act. Application of that act may mandate a different outcome.
  2. A judge in British Columbia declined to force the medical staff at Vancouver General Hospital to continue life support and medication for an 80-year old woman. Noting that the medical staff had determined that further medical treatment was no longer suitable and not in the best interests of the patient, the court declined to intervene, but did order that the patient’s medical records be made available for review by another licensed practitioner. The patient died before that review could be undertaken.

Legislative/Regulatory Developments

  1. Senators Ron Wyden (D-Ore.) and Mike Enzi (R-WY) and Representative Phil Gingrey (R-GA) introduced a joint-resolution to recognize National Health Care Decisions Day, scheduled for April 16.
  2. As reported in the Baltimore Sun, the Maryland Senate has given preliminary approval to S.B. 566 that would allow domestic partners to make medical and funeral decisions for each other, share a nursing home room, and visit at their hospital bedsides.
  3. The New York General Assembly has passed a comprehensive package of bills to protect senior citizens against assault, abuse, and predatory financial practices. The package includes A.9813 which increases the penalty from a class A misdemeanor to a class E felony if a person victimizes more than one vulnerable elderly person; A.9818 which increases the penalty from a class A misdemeanor to a Class D violent felony if someone more than 10 years younger assaults a person 65 or over; A.6204 which adds an experienced elder law attorney to the state’s Crime Victims Board; and A.9905 which requires the state police to develop educational materials and procedures relating to elder abuse.
  4. Tennessee Governor Phil Bredesen has proposed the creation of more home-based health care services for people who would otherwise have to go to nursing homes. The governor’s changes will be added to SB 4181 and HB 4144. Republicans in the legislature have introduced their own bills, SB 1157/HB 0941 and SB 0216/HB 0163.
  5. Massachusetts health officials are considering a plan to alert doctors when their patients are visiting multiple clinics and pharmacies to obtain Schedule II controlled substances. Under the proposal, anyone filling a prescription would have to show identification to the pharmacist. That information would be entered into a state database. The system would flag patients who seem to be “doctor shopping.” The Public Health Council will vote on the plan as early as June.

Pain Management

  1. An interesting study reported in the Journal of Clinical Investigation in February seems to support the hypothesis that tolerance to opioids does not develop when used to treat diseases that are accompanied by inflammation.
  2. Amednews.com ran an article titled “Dangerous Diversions: Specter of Prescription Drug Abuse Creates Tough Balancing Act for Doctors.” The article was posted widely on the Internet this month. The article stresses the importance of primary care physicians ensuring adequate treatment of pain while being alert to the potential for misuse.

Prescription Drug Diversion

  1. On March 1, in his weekly radio address, President Bush urged Congress to pass legislation regarding the illegal sales of prescription drugs on the Internet. President Bush used the address to highlight the 2008 national drug control strategy, which seeks a 10 percent cut in youth drug use with interdiction efforts and plans for community outreach and screening and prevention at doctors’ offices.
  2. “An Evaluation of Prescription Drug Monitoring Programs,” Simeone Associates’ September 2006 report, sponsored by the Office of Justice Programs at the Department of Justice, is available on the web. The report found that Prescription Drug Monitoring Programs reduce the per capita supply of prescription pain relievers and stimulants and, thus, reduce the probability of abuse for these drugs. The researchers also found evidence that states which are proactive in regulating are more effective in reducing the per capita supply of prescription pain relievers that those states which are reactive.
  3. Several news organizations this month carried stories regarding the increase in pharmacy thefts which police attribute to a surge in prescription drug addiction and abuse, including this one from Tampa Bay, Florida.
  4. An op-ed in New Hampshire’s Eagle Tribune urged the passage of an electronic prescription monitoring program in the state and claimed that state legislators are in denial about the extent of prescription drug abuse in the state.
  5. The steps pharmacists and physicians are taking to stem the growth of prescription drug diversion was the subject of a Chattanooga Times Free Press article.
  6. The National Center for Health Statistics’ recently released report found that, in 2005, poisoning was the second-leading cause of injury deaths after car accidents. Of these deaths, the vast majority are due to unintentional drug overdoses. They accounted for 56 percent of all poisoning deaths in 2005, an increase from 50 percent in 1999. Methadone-related deaths have increased more than other narcotic-related deaths.
  7. A March article in the Archives of Pediatric and Adolescent Medicine reported on a research study that assessed prescription drug use and potential drug abuse in college students. The study found that students who reported using prescription drugs without a prescription were more likely to screen for symptoms of drug abuse (such as performing illegal activities to obtain drugs, having withdrawal symptoms, or developing medical problems due to drug use) than those who used the drugs for solely medical reasons.
  8. By April 1, physicians must comply with the federal deadline for writing many Medicaid prescriptions on tamper-resistant pads. Pads must have at least one feature to prevent unauthorized copying, erasure or modification, or counterfeiting. Written prescriptions must have a feature from all three categories by October 1.
  9. DEA’s Acting Administrator, Michele Leonhart, testified before the Subcommittee on Commerce, Justice, Science and Related Agencies, Committee on Appropriations, U.S. House of Representatives. In her testimony, she highlighted the concern regarding prescription drug diversion and highlighted DEA work in that area.
  10. The Missouri addiction program for doctors and nurses was the subject of an article in the St. Louis Post-Dispatch. The article noted that, in 2006, of the 71 doctors disciplined by the Missouri medical board, more than half were charged with violations related to drugs or alcohol.
  11. Two doctors were recently sanctioned by the Mississippi Board of Medical Licensure for violating state medical rules and regulations in prescribing controlled substances. In the consent decrees, the doctors agreed to monitoring and oversight and will give up writing prescriptions for certain narcotics.
  12. A Louisiana doctor, Jose Gonzalo Zavaleta, was recently charged with unlawfully prescribing controlled substances. The investigation was conducted by the Louisiana State Police and the Louisiana Medical Board with cooperation from U.S. DEA.
  13. Dr. Whan Yun, 70, of Wrens, Georgia, was sentenced to five years’ probation after he pled guilty last October to unlawfully dispensing controlled substances.
  14. On March 24, Naples, Florida, doctor Sharon Johnston was found guilty by a federal jury on four counts of unlawfully dispensing controlled substances. Sentencing is scheduled for June 23.

Other News of Interest

  1. The Joint Commission has requested feedback from palliative care providers on newly proposed palliative care certification standards and elements of performance. The deadline for comments is April 8.
  2. A couple in Oregon has been indicted on charges of manslaughter and criminal mistreatment in the death of their 15-month-old daughter. Oregon’s laws do not shield faith-healing parents who failed to seek medical treatment before their child’s death.
  3. The University of Nevada’s Center for Ethics and Health Policy has joined with the state’s Secretary of State’s office to launch the Nevada Living Will “electronic lockbox” web site.
  4. The American Bar Association (ABA) has created a list of ten myths about health care directives and living wills.
  5. Kentucky has issued its report detailing the results of a 2007 study assessing the legal needs of older adults. As reported in ABA’s Bifocal, the survey found that 12 percent of respondents reported being victims of some form of abuse, but only 21 percent of these reported receiving help. Another 33 percent of the respondents reported indicators of abuse, neglect, or exploitation, but did not self-report as being abused.
  6. An article in the April 1 issue of Journal of Clinical Oncology published the results of a study by researchers at Dana-Farber Cancer Institute and Children’s Hospital Boston. The study showed that expanded use of palliative care services is associated with better communication with families, improved symptom management, and better quality of life for the children dying of cancer.
  7. The National Institute on Aging has awarded a $209,000 grant to Brown University’s Center for Gerontology & Health Care Research to gather information on how much elder abuse exists in Rhode Island. It is hoped that the work that will be done can serve as a model for other states. The lead researcher, Wendy Verhoek-Oftedahl, a professor of community health at Brown’s School of Medicine, noted that Rhode Island ranks fourth in the country for residents aged 75 and older. Studies show that people over 75 are the most likely victims of abuse and that almost all elder abuse (89.3%) takes place in domestic settings.
  8. MSNBC.com carried an article about perinatal hospice programs which address the needs of parents and families who have received a terminal prenatal diagnosis but who have decided to continue the pregnancy. A small British study in 2007 found that about 40 percent of families with a terminal prenatal diagnosis decide to continue the pregnancy when perinatal hospice was offered.
  9. As part of the University of Oklahoma’s Spring 2008 Law Student Community Service Project, students will host a legal clinic at a local senior center designed to assist seniors in completing an advance directive for health care. The program is funding with a grant from the ABA’s Commission on Law and Aging.
  10. An interesting and informative article in Boston.com recounted a doctor’s experience as a pediatric cardiac specialist with Jehovah’s Witness parents who, for religious reasons, could not consent to surgery to save the life of one of their twin sons. Early in the pregnancy, it was discovered that one of the twins would require open heart surgery in order to survive. Eventually a judge, after an extensive hearing involving a guardian for the infant, a lawyer for the family, and a Jehovah’s Witness liaison, authorized the surgery. In the course of the article, the doctor-author opines that the laws regarding highly invasive medical treatment for babies do not have a coherent moral foundation.
  11. Another article in Boston.com reviews the debate on-going among physicians and ethicists concerning when a person is dead. The debate has important ramifications for organ donation.
  12. In an article in the Richmond Times-Dispatch titled “When Lives End Slowly, It’s Costly,” the columnist comments on Stephen Kiernan’s book Last Rights: Rescuing the End of Life from the Medical System.
  13. Some estate planning attorneys are discussing that they should suggest to wealthy clients that they include in their advance directives language that they wish to be kept alive by any means necessary until 2010 when there will be no federal estate tax.
  14. A booklet, written by social worker Gloria Thomas Anderson, titled “What Ya’ll Goin’ Do with Me? The African-American Spiritual and Ethical Guide to End of Life Care,” is available through the Kansas City Hospice.

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