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Undertreatment of Pain Policy Brief Issued

Judy McKee, Project Coordinator and Counsel, End of Life Health Care

Several articles in earlier issues of the NAAGazette have acquainted readers with NAAG’s involvement in the Balanced Pain Policy Initiative (BPPI).[1] In early March, NAAG sent to each Attorney General a copy of the recently published policy brief, “Balance, Uniformity, and Fairness: Effective Strategies for Law Enforcement for Investigating and Prosecuting the Diversion of Prescription Pain Medications While Protecting Appropriate Medical Practice.” This document represents the culmination of the work done by the Law Enforcement Roundtable of the BPPI project to discern ways in which law enforcement personnel might address prescription drug diversion when it involves the investigation and prosecution of physicians while minimizing the chilling effect on the prescribing activities of legitimate physicians.

The Initiative’s article in the September 2008 issue of Pain Medicine demonstrated that law enforcement has predominantly undertaken its prosecutorial duties with professionalism, responsibility, and care regarding physicians and prescription drug diversion. Nonetheless, even righteous prosecutions seem to have a deleterious effect on the prescribing practices of some doctors in regard to their chronic pain patients. By following the strategies outlined in the policy brief, law enforcement investigators and prosecutors will be able to fulfill their professional obligations while limiting the unintended harm to genuine chronic pain patients.

Strategy 1 is to distinguish criminal behavior from medical negligence. To assist in carrying out this task, a procedural template, originally developed by Oklahoma Attorney General Drew Edmondson, is included. Strategy 2 is the balancing of publicity regarding cases against physicians. Strategy 3 involves a particularly unique part of the policy brief. Leading pain societies have offered to develop a roster of national experts who would be “on call” to offer curbside consultations to law enforcement on case scenarios and hypotheticals. This would assist prosecutors in winnowing through various fact situations in trying to determine whether and when criminal behavior has occurred.

Strategy 4 involves use of the prescription monitoring programs that are now active in the majority of states. While the Roundtable participants largely supported the use of such a technological aid, it cautioned that the programs should be designed with appropriate privacy safeguards and be available to law enforcement only when there is already an on-going investigation. Interagency collaboration comprises strategy 5. This strategy advocates that, wherever possible and appropriate, local, state, and federal law enforcement, medical board personnel, pharmacy board personnel, and third-party payers communicate and work with one another regarding a suspect situation.

Finally, education is the key to a true balanced pain policy. Strategy 6 calls for education on all sides – law enforcement, medical personnel, and the general public. Law enforcement should learn the basics of good pain management; medical professionals must be trained in pain and addiction management and educate their pain patients in appropriate pain management; and the general public needs to be more aware of the dangers of prescription drug diversion and commit to keeping medications secure, both while in medicine cabinets at home and when disposing them.

Electronic copies of the policy brief are available on the NAAG Web site at

[1] See Finding the Proper Balance: Walking the Tightrope Between Treating Chronic Pain and Countering Prescription Drug Diversion,” NAAGazette July-Aug. 2008; “Perception versus Reality: The Facts Regarding Prosecutions and Disciplining of Doctors for Abuses Involving Controlled Substances,” NAAGazette Sept. 2008; “Balancing Law Enforcement and Pain Management: NAAG Holds Roundtable,” NAAGazette Nov. 2008.

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