Prescription Drugs

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.

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

    Because it might result in some of the elderly’s relatives getting high – duh!

  2. The risk an elderly patient with two weeks to live might become addicted to morphine is too great for society to bear.

  3. Kohl is either a dupe or a liar.

    1. I vote for liar.

    2. two votes for douchebag.

    3. Can I vote for lying dupe?

  4. The Special Committee on Aging has no legislative authority. they can propose stuff, conduct oversight and the like, but as far as actually passing legislation, they’re not a authorizing committee. they might be drafting a bill, but they’re certainly not going to report one.


    “Ir’s like I’ve got your balls in my hand, and am squeezing really hard…”

    1. Or “If we squeeze their balls just a little harder, we can solve this drug problem once and for all”.

  6. But really, who cares if old people are in pain anyway? Right? Right?


  7. Also, once again, I hope all these fucking slaver bastards have broken disks in their backs, are denied treatment or pain relief, etc. etc. I’ll then provide them with a loaded .45 after…mmm…a week ought to do. In lieu of “TEH EVUL PAIN KILLERZZZA!!!1!1!!


    1. Idiot, they’ll use the .45 on you!

  8. Why not just give them vitamin therapy? Of course, the totalitarian FDA wants to regulate alternative medicine and prevent seniors from getting life-saving vitamin therapy, that’s why. In a truly free country, anybody who wants to prescribe medicine should be able to. Let freedom ring!

    1. “In a truly free country, anybody who wants to prescribe buy medicine without having to beg permission from the government or a medical guild should be able to.”


      1. Good correction. It’s not illegal for anyone to prescribe medicine, unless as part of holding themselves out as doctors when they aren’t, because we still have freedom of speech. It’s getting the prescription filled that’s the legal problem.

    2. Max|6.24.10 @ 3:29PM|#

      Go suck ron puals dick, morons. You peeple are fucking retarded. I`m done coming to this wingnut sight. this is my last post.

  9. the death panels will render this moot. when do they begin? oh wait, that’s a state level decision & AZ + NJ are already throwing granny down tha basement stairs

  10. (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.)

    I’m not really holding out much hope, but the idea of Michelle Leonhart spending the rest of eternity as of Monday boiling in a lake of fire wouldn’t displease me.

    1. Why Monday? You didn’t want to spoil her weekend?

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

    Because if we wait long enough all the elderly will die off? Wait, that won’t work….ok, I guess I’ll go with my backup answer of “because, fuck ’em, that’s why.”

  12. I work third shift at an answering service. We answer for hundreds of physicians, including several groups who specialize in geriatrics and patients in ling term care facilities. We also answer for 8 or do visiting nurse providers, 2 hospice organizations and a pharmacy that provides 24 hour service to long term care facilities. Nighttime pain relief, especially for newly admitted patients, is a huge problem. In many cases there are standing orders that allow RNs to order medication, but not only do those not cover most newly admitted patients, they often are no help even to established patients because many nursing homes have no RNs on the overnight shift, only CNAs and LPNs. And while an MD isn’t necessary to write narcotic prescriptions– PAs and NPs can also write them– that doesn’t help any at 3AM.

    If the situation is difficult at nursing homes, which at least have narcotic E-kits on hand, it is close to impossible in home care situations. Years of doing this kind of work has left me with a (not unreasonable) fear of growing old, although I guess it still beats the alternative.

    1. Long term, not ling term. And 8 or so, not 8 or do. This is why I rarely count on spell check to catch my mistakes.

      1. You should be a columnist. Or at least teach a class on not relying on spellcheck to columnists.

    2. I just observed this problem first-hand as my mother spent her last days at home under Hospice care. Pancreatic cancer. End stage. She refused to go back to the hospital, and did not want to be placed in a facility.
      At 11 pm she began having one of her uncontrolled bouts, vomiting and unable to swallow PO. All her prescriptions were for oral dosing.
      Extreme distress. Much pain, everywhere.
      We HAD an emergency kit with us, but no-one had instructed my father on how to dispense, not that he ‘should’ have without some sort of preliminary layman’s education. He wasn’t supposed to, as this option was reserved for a licensed caregiver. I can only assume it was there for an on-call visit…
      The emergency script was written for IV, and the vials required a syringe adapter. No needles in the bag. But dispatch was instructing me for IM. Mom had no good veins left, just her port.
      I tried to explain what we had in the kit to the dispatcher, who couldn’t seem to understand what the problem was? I couldn’t give the patient an injection of morphine? NO. THERE. ARE. NO. NEEDLES. I can’t blame dispatch – she wasn’t looking at all the equipment and meds we had piled in front of us. My much-previous experience as an RX Tech was of no use here, not certified for IV. Had never, and no idea how the port worked. No instructions on/for the adapter, nothing. We were clueless.
      It was a nightmare.
      My mother was in agony, and I, down from elsewhere to help my father, felt helpless, fucking around on the phone like idiots while she had to endure our incompetence.
      Dispatch gave up on me and called a nurse – what I’d wanted. (Thank you.)
      Then, 15-20 minutes later, the nurse called us to see if we still needed her to come out.
      We waited for the on-call to arrive, which took an hour…an hour…and then, unlike the supreme quality of caregiver we would see later on, this young woman was incapable of communicating, much less dealing with the situation appropriately. Not much better at this than I was.
      She had to have a script re-written, dosage changed, and to sit there and listen to the call she made, hesitant and full of uncertain language, waiting for a(nother) call-back, was unreal.
      I am torn between understanding why there are limits as to what a nurse can do, and seeing an example where something needed to be done FASTER, more effectively.
      After that, Dad signed up for scheduled ’round-the-clock care, and we had a few more delayed script tweaks before Mom passed.

      Life-long pain management should be treated differently than end-of-life, palliative maintenance, simply because the risk of dependance is not a concern.
      There has to be a distinction – logically and legislatively.

      Whether that means the nursing staff require additional training or certification in order to make sound determinations, I’ll leave for others to argue…

      1. IM = IJ.

        You’re not the only one mistyping today.

  13. Caption:

    “So, the SWAT team kicks in all the doors of the house and subdues the occupants (those flashbangs are like teh awesome!), and they find a big blob of hash- *this big* I tell you. Well, once the ambulance came and took the body away, we had us a PAAAAHHH-TAAAY!”

  14. ooh,ooh…I know the answer…becasue they’re a self aggrandizing pack of incompetent douchebags, and general all around crap shitbags.

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

    They’ve been too busy crafting the budget.

  16. It’s this precise issue that left me writhing in pain for six hours without so much as an aspirin after a gunshot wound that shattered my hip. 6 hours including a bumpy ambulance ride, the ER making the baffling decision to pull my jeans off rather than cut them, 24 x-rays as they twisted and bent my hip joint before realizing it was in 17 jagged pieces. And all because a precious MD wasn’t available to prescribe.

    I hope Max, OhioOrrin and every other FDA-loving shitbag gets to go through the exact same thing I did someday.

    1. How did you get shot?

    2. Instead of crying about a Dr not being there, you should either just be thankful for the help you did get or else not have gotten shot in the first place. Unless of course you happened to have been paying a Dr to be on call for you at all times then you’d have an excuse to complain. If you want someone other than an MD to be able to prescribe medication than people are going to have to give up the right to sue for receiving the wrong prescription, which I’m perfectly fine with.

      1. I hope your filthy cunt rots out.

      2. Wow. You’re a bigger asshole than Epi.

    3. What happened to you really sucks, but what on earth does this have to do with the FDA???? The FDA regulates which drugs are safe/not safe for sale in the US. The DEA enforces these rules and also cracks down on the use of illegal drugs in this country. The FDA/DEA does not hire doctors to staff the ED where you were taken to.

      Your issue about not having an MD to approve medicine for you, honestly, has nothing to do with the FDA. I personally think there was a doctor around, they were surfing the internet or taking a break. Trauma patients get treated like shit by the medical profession. A large chunk of trauma patients bring this kind of treatment on the others. This is in now way absolves the hospital of any wrongdoing, but to claim it’s the fault of the FDA seems silly. If your experience was so horrible, why not sue the hospital?

      BTW you must be completely retarded if you think for a second they’d give an aspirin to a gunshot wound patient.

      1. The point seems to have completely eluded you, so let me spell it out as clearly as I can, even though I think SugarFree made it plenty clear. His beef is not that no MD was available. His complaint is that a patient’s access to pain relief should not require the presence of an MD. Not only is that a DEA issue, it is the subject of the post on which he is commenting, which you ought to be able to discern if you RTFA.

        1. Fail.

          The article is about legislation restricting the rights of nurses in nursing homes and hospices to dispense meds, not in ER’s. The issue of who manages patients with gunshot wounds is slightly different than managing patients who are in hospice. Please explain to me how the legislators (whom I disagree with) are pushing for patients in the ED to writhe in pain for hours until seen by a doctor. I’m also pretty sure DEA does not control hospital policy on how to treat patients acutely with pain meds.
          Sounds like you need to RTFA.

          His beef is not that no an MD was available.

          So, when he complained that his problems were “all because a precious MD wasn’t available to prescribe,” you’re saying that he wasn’t mad that a MD wasn’t available to prescribe?
          Yup, that’s as clear as mud.

          BTW I stand by my statement that there probably was an MD available to see him when he came in the ED. Are you and he saying that a doctor was there but said “I gotta wait to see him because the DEA says so”?

  17. The role the FDA and DEA have in our health care system is preventing or delaying medicines from reaching those who need them and increasing the price of the medications that actually make it to the market.

    We have contests going on about insurance covering viagra and such drugs, drugs that would probably cost about the same as aspirin without the governments interference and which would not even need to be covered by insurance if it weren’t for the government.

    1. Agreed. It’s not a wonder that drugs cost so much when it takes a billion dollars to push a new one through the FDA’s shit strainer. Then they artificially limit supply by restricting who can tell you if you can have it and who can give it to you. The pharmaceuticals themselves have driven up prices with their rent-seeking.

      I fail to see how the “drugs cost too much” problem was not entirely created by government intervention.

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