A Fate Worse Than Death Panels?

Legislation that would improve access to pain medication for the elderly is five months behind schedule, and no one will say why.

When interim DEA Administrator Michelle Leonhart went before the Senate judiciary committee in November 2010, it was to get rubber-stamped for a job she had held since the latter part of the Bush administration. During her confirmation hearing, she was thanked for her service by Sen. Jeff Sessions, a law-and-order Republican from Alabama, and by Sen. Al Franken, a progressive Democrat from Minnesota. At no point during her hearing was she criticized for continuing to order raids on medical marijuana dispensaries in states where such dispensaries are legal, nor was she questioned about the U.S.-financed bloodbath in Mexico. But there was one obstacle to Leonhart's confirmation: Sen. Herb Kohl (D-Wisc.) wanted her office to draft legislation that would allow nurses who work in assisted living facilities and hospice centers to order controlled medications for their patients.

Nurses are often the only health-care workers working around the clock with patients in nursing homes and in hospice programs. When a patient recovering from a hip or knee replacement, or dying from cancer, needs pain relief, nurses are not just the first, but often the only responders.

But according to the American Health Care Association (AHCA), an industry group that lobbies on behalf of long-term care facilities, as well as multiple doctors in the long-term care industry, nurses aren't legally permitted to order prescriptions for their patients because the DEA "does not recognize any 'agency' relationship between a [doctor] and a long term care nurse," reads an AHCA brief on the issue. This aspect of the Controlled Substances Act presents a problem when patients need their medications refilled (or new ones altogether) in the absence of a doctor. (Under Michele Leonhart, the DEA has stepped up its enforcement of this rule by cracking down on nursing homes that violate it for the good of their patients.)

A real-world scenario looks like this: An elderly patient going through the end stages of cancer tells her hospice nurse that her pain pills aren't cutting it. Under the current law, a doctor has to order a prescription for a higher dosage. This often "adds additional steps that can significantly delay treatment from several hours to several days," the AHCA wrote in a policy brief. Ideally, a change in the law would allow nurses to consult a doctor, and then order the prescription themselves.

Kohl, both a member of the Senate Judiciary Committee and chair of the Senate Special Committee on Aging, first asked Leonhart to draft legislative language for such a change in October 2009, but was stonewalled by the DEA. In March 2010, Kohl held a hearing dedicated to the issue called, "The War on Drugs Meets the War on Pain: Nursing Home Patients Caught in the Crossfire."

One of Kohl's witnesses was Cheryl Phillips, a medical doctor and president of the American Geriatrics Society. "I am here because every day, across the country, the real-life consequence of the [DEA] interpretation of the Controlled Substance Act is that, collectively, we are preventing patients in long-term care settings from receiving much needed pain relief and other medications in a timely manner," Phillips said during her testimony. "We can, and should, be doing better."

Phillips then went on to describe what one nursing home resident went through as a result of the DEA's increased enforcement of the CSA in nursing homes:

Mrs. M is an 87 year old female with advanced dementia and a recent hip fracture and
subsequent surgery. She has been at the nursing home for the past three days. Prior to her transfer from the hospital her pain meds were decreased because her orthopedic surgeon was worried about confusion. Since then, the family has been concerned that she has been in pain that is not managed with the non-narcotic meds prescribed. On the fourth day of her nursing home stay physical therapists worked "a bit harder" to get her moving more and out of bed. By that evening she was tearful and refusing to eat. When the family arrived they recognized she was in pain and requested something stronger to treat her. After a call to her attending physician which resulted in an order for morphine sulfate the nurse requested from the pharmacist that she be able to access the emergency drug kit and administer the ordered medication. However, because the physician was not able to provide an after-hours signature the pharmacist said she was not able to release the medication. The family became incensed and threatened to "sue the nursing home". At that point, the nurse called the physician back and the order was given to send the patient, via ambulance, to the emergency room for pain management.

Kohl himself introduced the hearing by blaming the DEA. "It is safe to say that most laws are created to prevent suffering. In the case of the U.S. Drug Enforcement Administration's recent crackdown of nursing homes, it appears that the law exacerbates it. The hours it may take for a nursing home to fully comply with DEA regulations can feel like an eternity to an elderly nursing home resident who is waiting for relief from excruciating pain."

When Kohl first approached Leonhart in 2009, she told told him she "would act quickly to solve this problem." She ended up doing nothing. So during her confirmation hearing in November 2010—13 months after he'd first approached the DEA, and eight months after the aging committee's hearing on the ramifications of the DEA's war on nursing homes—Kohl announced he would place a hold on Leonhart's nomination.

"You told me you…would address the problem swiftly," Kohl said to Leonhart during her confirmation hearing. "In August, I requested joint comments from DEA and DHHS on draft legislation that I prepared and submitted to you to facilitate more timely access to pain medication for ailing nursing home residents. I received no response."

Several weeks later, Kohl lifted the hold citing an agreement with Attorney General Eric Holder. "Based on our agreement," read a statement from Kohl's office, "I am releasing the hold on Michele Leonhart's nomination, and I look forward to introducing a mutually acceptable legislative fix in the opening days of the 112th Congress. Time is of the essence for nursing-home residents who need immediate pain relief."

The opening days of the 112th Congress were the first week of January 2011. It's now late May, and no legislation has been introduced. And neither the Justice Department, nor the Senate Committee on Aging will say why.

On April 6, I asked the DEA if the hold up was on their end, and was told via email, "We have been working on this but prefer to allow [Sen. Kohl] the opportunity to talk about it, so we recommend you contact his press secretary."

That same day, I directed my query to the Senate Special Committee on Aging, and asked why the legislation hadn't been introduced in January 2011, per Kohl's statement a month earlier. "We're still working with DOJ on a solution. I'll give you a shout as soon as I know more," a committee staffer emailed me. When I pushed for a clarification, I was told, "We are working on drafting a bill using legislative language offered by the Justice Department. Justice met their obligation and we are now working on answering a few technical questions before introducing the legislation."

Apparently, those technical questions are proving awful tricky. One month later, I reached out to the committee again and was told, "Bill language has not been finalized but I expect that process to wrap up soon." I received no response when I asked why the process was five months behind schedule.

The AHCA's Teresa Cagnolatti, who authored the organization's policy brief, told me, "Based on our experience in working with him on this issue, we're very confident that [Senator Kohl] is working toward a solution in the near future."

Kohl's original charge against Leonhart was that "the DEA is putting paperwork before pain relief." A full 13 months after the DEA was first asked to stop blocking access of pain medication for long-term care patients, it appears paperwork still takes precedent.

Mike Riggs is an associate editor at Reason magazine.