September 2008

Headline News

The Balanced Pain Project Initiative’s second law enforcement roundtable was held at NAAG on September 22. Twenty-eight participants gathered to discuss issues regarding balancing law enforcement efforts to stem the illegal diversion of prescription drugs with ensuring that pain patients receive proper medical care in managing their pain. Vermont Attorney General William Sorrell moderated the event, which was also attended by Oklahoma Attorney General Drew Edmondson and former Nevada Attorney General Frankie Sue Del Papa.

News from Attorneys General Offices

  1. California Attorney General Edmund G. Brown, Jr. announced that members of a drug-trafficking organization, which is believed to be responsible for stealing the identities of local doctors to write prescriptions for controlled substances, have been arrested and charged. The group is also alleged to have stolen the identities of citizens to whom the phony prescriptions were written. It is believed that fake prescriptions for more than 11,000 pills of addictive drugs such as Oxycontin and Vicodin had been filled.
  2. Connecticut Attorney General Richard Blumenthal has announced a $6.15 million Connecticut settlement with Cephalon, Inc., resolving an investigation into illegal off-label drug marketing. The state will also receive a portion of a $425 million global settlement for Medicaid fraud claims. Part of the settlement will be used to fund the electronic prescription drug monitoring program in the state.
  3. Missouri Attorney General Jay Nixon was a sponsor of the fourth annual Missouri End-of-Life Summit that took place this month in Jefferson City. The Summit brought together policymakers, healthcare experts, and consumer advocates to discuss ways to improve the quality of life for Missouri residents in their final days.
  4. Montana Attorney General Mike McGrath’s office co-sponsored a conference of the American Cancer Society this month. The conference, the society’s second annual Montana Pain Initiative Conference, was focused on a balanced approach to pain management. General McGrath gave a luncheon speech noting the need to ensure that drug diversion programs are designed with a “full understanding of their potential impact on the legitimate use of prescription drugs.”
  5. New Jersey Attorney General Anne Milgram announced the guilty plea of an Orange, New Jersey, man for racketeering. He admitted that he was the lead runner in a Newark-based narcotics ring that distributed millions of dollars of illegal controlled substances.
  6. Oklahoma Attorney General Drew Edmondson testified before the U.S. Senate Special Committee on Aging this month. He spoke about his and other state Attorneys General’s initiatives in support of end of life policies that promote competent and compassionate end of life care in accordance with a patient’s wishes and a balanced pain policy in dealing with drug diversion and medical assistance to those in chronic pain.
  7. Washington Attorney General Rob McKenna has announced some new proposals designed to enhance enforcement against those who abuse the elderly and those with mental or physical disabilities. The proposals include mandatory sentencing enhancements for those whose crimes are against vulnerable adults, clarifying definitions in the vulnerable adult statutes, and requiring financial institutions’ employees to report potential financial exploitation.

Judicial Developments

  1. After a 2½ day trial, an Anchorage, Alaska, a superior court judge has ruled in the case of Mari Chamberlain (see the June 2008 Update). Allowing the transfer of Ms. Chamberlain to the nursing home, the judge noted the agreement by the parties that the feeding tube would be kept in place so long as she was tolerating it. The court held that the DNR order was an acceptable decision because Ms. Chamberlain is a “qualified patient” under the statute. “Qualified patient” is defined as a patient in either a terminal condition or in a state of permanent unconsciousness.
  2. A San Joaquin County, California, judge has refused to release Jackson Phaysaleum from prison. The state has sought his release under a law that allows an incapacitated inmate to go free if he poses no public risk. Phaysaleum is in a permanent vegetative state after a beating by his cell mate and, under California law, must have two guards with him at the hospital at all times. The judge, although initially indicating that he would approve the release, changed his mind because he feared the county would end up paying the medical bills for Phaysaleum. (See the July 2008 issue of the Update.)

Legislative Developments

  1. The National Pain Care Policy Act of 2008 (HR 994) passed the House of Representatives late this month. A companion bill, introduced by Senators Orrin Hatch (R-Utah) and Christopher Dodd (D-CT), S.3387, was introduced at the end of July. Both bills would amend the Public Health Service Act with respect to pain care. They call for, among other measures, a national conference on pain and the establishment of a pain consortium within the National Institutes of Health and require the Secretary of Health and Human Services to develop and implement a national outreach and awareness campaign to educate patients and caregivers on the significance of pain as a major public health issue.
  2. The Medicare Hospice Protection Act of 2008 (H.R. 6873 and S. 3484) was recently introduced in the House and Senate by a bi-partisan group of legislators. The bill would prevent the Centers for Medicare & Medicaid Services from implementing a rule (for at least a year) that reduces the rates Medicare pays for hospice services.
  3. The ABA’s Commission on Law & Aging website has a compendium of the state laws that were passed in the 2008 legislative session in regard to health decisions. They include Arizona’s “Jesse’s Law,” (H.B. 2823) which requires the court in which a petition has been filed by a surrogate who is not a patient’s agent or guardian to enter a temporary order directing the surrogate to make no decision withdrawing artificial administration of foods or fluids and Vermont’s H. 617 that amends the state’s guardianship law in a number of ways.
  4. The U.S. Senate Special Committee on Aging held a hearing looking at the questions facing American families in deciding how best to honor a loved one’s end-of-life wishes. The hearing addressed both the difficulties encountered when a patient has no advance directives to issues surrounding how to ensure that physicians and other health care providers know about and honor a patient’s desires concerning end-of-life care.

Pain Management

  1. Coinciding with September being designated Pain Awareness Month, the Joint Commission is launching a national campaign to help Americans work with their physicians and other health care managers to better manage pain. Brochures with details concerning the “Speak Up” program are available in both Spanish and English at the Joint Commission website.
  2. The September 1 issue of the International Journal of Radiation Oncology*Biology*Physics published the work of researchers at the University of Pennsylvania Department of Radiation Oncology in Philadelphia and the Radiation Oncology Branch of the National Cancer Institute in Bethesda, Maryland, who sought to determine the main reasons that patients fail to receive optimal pain therapy. Eighty percent of patients reporting pain said they did not use medication to control their pain. The main reason most patients reported that they did not take pain medication was because their healthcare provider did not recommend it. Other reasons included fear of addiction or dependence and the inability to pay.
  3. A research study published in the Journal of Pain and Symptom Management found that women with cancer were significantly more likely than men with cancer to report inadequate pain control and that they were less likely to receive prescriptions for high potency opioids. Furthermore, when the opioids were prescribed, the average total daily dose of pain-killers was significantly greater for men.

Prescription Drug Diversion

  1. The results of a research project, undertaken by NAAG, the Center for Practical Bioethics, and the Federation of State Medical Boards regarding prosecutions and sanctions of physicians for violations of controlled substances laws and regulations were published in the September issue of Pain Medicine. The September 8 issue of American Medical News discussed the article. There was also a lengthy article in the Tulsa World that featured an interview with Oklahoma Attorney General Drew Edmondson. The New York Times also ran an article regarding the study. An article in the September issue of the NAAGazette outlines the results of the study.
  2. An interview with Dr. James A. Inciardi, Director of the Center for Drug and Alcohol Studies at the University of Delaware, was published on-line this month. Dr. Inciardi suggested that the elderly may be a major source of drug diversion. The Center has found that an elderly patient will go to a physician, obtain a prescription for an opioid, fill it with a low co-payment, and then sell the pills to a pill broker. (Registration required for access to article.)
  3. The Las Vegas Sun ran an article, titled “One Reason Behind Nevada’s Problem with Narcotic Painkillers,” regarding the prescription habits of a Nevada doctor who, in one case, prescribed a patient over 1100 narcotic painkillers in a single month.
  4. Annals of Emergency Medicine published an article detailing prescription opioid poisonings in young children. Researchers found that the number of prescriptions filled for an opioid in an area correlated well with opioid exposures in young children in the same area. Researchers identified 9,179 children exposed to a prescription opioid. Most of the accidental poisonings occurred when a child found a lost or discarded pill or when adults leave medicine out in the open.

Training Opportunities

  1. The Federation of State Medical Boards (FSMB) is sponsoring an FSMB Board Attorney Worship on December 5 and 6 in New Orleans, Louisiana. The workshop registration fee is waived for medical board legal counsel and staff. A limited number of rooms has been reserved at the workshop rate at InterContinental New Orleans. Further information is available on the FSMB website.
  2. The ABA Commission on Law and Aging is offering complimentary CLE programs on its Web site. Topics include the durable power of attorney, elder mistreatment, and various Medicare issues.

Other News of Interest

  1. The American Bar Association has announced that its Spanish-language version of the consumer brochure, Health and Financial Decisions: Legal Tools for Preserving Your Personal Autonomy, is available for free, including shipping. Those interested should e-mail or phone (202) 662-8690.
  2. Neuropsychopharmacology published an article reporting research that found that adolescents who abuse prescription painkillers may be more susceptible to addiction when exposed to painkillers as adults.
  3. The Summer issue of the Journal of Clinical Ethics included the results of a research study that found that standard approaches in the fields of medical ethics and laws often don’t solve the problem of difficulty in making decisions making regarding end-of-life care. The authors found that physicians rely on standard legal and ethical guidelines but are also very often influenced by the wishes and needs of family members or surrogate.
  4. An article in Amednews discussed the Nevada ruling in Estate of Avis Maxey v. Jon Darden, M.D. (see the July 2008 issue of the Update). Doctors are fearful that the intent of the Uniform act on the Rights of the Terminally Ill ─ to streamline consent issues for end-of-life care ─ may be sabotaged if doctors feel they will be second-guessed by the legal system as to whether they made the right call.
  5. According to the New York Times, use of colored wristbands for hospital patients to alert health providers of patients’ conditions such as allergies or the risk of falling has generally gained wide acceptance. However, there is controversy over the use of a bracelet (usually purple) that tells physicians and others that a patient has issued a DNR order. The Joint Commission, which accredits hospitals, has cited concerns about the bracelet’s alerting friends and family members to a patient’s choice.
  6. A recent article in the Hamline Law Review argues that bioethical mediation is a promising method for resolving end-of-life disputes. The author reviews judicial attempts at handling these disputes and the bioethical concerns surrounding the decision to terminate life-sustaining treatment. (This article is not yet on-line. The citation is 31 Hamline L. Rev. 103 (2008).)
  7. A podcast featuring Dr. David Kuhl, author of the book, What Dying People Want, is available. Dr. Kuhl shares information on the daily experiences of dying patients, including broaching end-of-life issues with family members.
  8. In the current issue of Annals of Family Medicine, there is an article on the role of spiritual care at the end of life.
  9. Forty-five year old Freddie Nichols died at a VA Hospital in Albuquerque after officials removed his feeding tube over the objections of his family. His mother had lost custody of him to a case management company in August after caring for him since surgery for a brain tumor in 1989 left him with paralysis and brain damage. Adult Protective Services brought a lawsuit to remove her as guardian, alleging that Nichols was dehydrated, in a vegetative condition, and had been hospitalized ten times during the preceding year for bed sores.

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