Reality Check on the Pain Relief Promotion Act
An attack on the Pain Relief Promotion Act, called "Common Sense Reasons to Oppose H.R. 2260," has been circulated by the American Pain Foundation, a Baltimore-based group funded by drug companies and assisted-suicide advocate George Soros. The APF's claims are reviewed below and contrasted with the facts about the bill.
APF: The bill's proposed "safe harbor" in the Controlled Substances Act for pain management is unnecessary, because such a policy already has "full force and effect of law" through "a 1974 DEA regulation" and "the DEA's 1990 Physician's Manual."
Fact: That 1974 regulation relates solely to "the administering or dispensing directly (but not prescribing) of narcotic drugs listed in any schedule to a narcotic drug dependent person for 'detoxification treatment' or 'maintenance treatment'" (21 CFR 1306.07). Subsection (c) of that regulation says that "this section [on detox treatment] is not intended to impose any limitations" on treating intractable pain. But this disclaimer does not affect the rest of the Controlled Substances Act. The ten-year-old Physician's Manual is even less relevant, as an informational booklet that has no force of law. While the Drug Enforcement Administration (DEA) has assured physicians that it does not intend to limit pain management, the DEA's current broad authority to revoke prescribing privileges in any case of risk to "public health and safety" is a concern of many physicians. The Pain Relief Promotion Act gives a clear legal answer for the first time to the question: What does the law do when a doctor says he is practicing legitimate pain management but someone else claims he is (even unintentionally) "overprescribing" and thus endangering "health and safety"? In such cases the Act gives maximum deference to the physician.
APF: The bill "expands DEA authority to evaluate the practice of medicine as it pertains to pain management."
Fact: The opposite is true. The DEA now has authority to question any pain management practice that it thinks may endanger "health and safety" (even unintentionally). The bill sets a new standard: "For purposes of this Act and any regulations to implement this Act, alleviating pain or discomfort in the usual course of professional practice is a legitimate medical purpose for the dispensing, distributing, or administering of a controlled substance that is consistent with public health and safety, even if the use of such a substance may increase the risk of death." Even if there are side-effects, these are to be accepted as inevitable features of aggressive pain management that are "consistent with public health and safety." Since the DEA only has authority to prevent "diversion" of controlled substances away from "legitimate medical purposes," this provision forbids the DEA to second-guess physicians' individualized pain management decisions.
APF: The bill "expands the DEA's authority to question a physician's decision in prescribing controlled substances, even when that prescribing is within state medical guidelines."
Fact: This is not true. The provision quoted above establishes that pain control is a legitimate medical purpose for use of controlled substances; specific professional standards for pain control are established by state medical boards and professional societies. If a physician is practicing "in the usual course of professional practice" as defined by these authorities, his or her activities are classified as "legitimate medical purpose" for purposes of federal law as well. This bill increases federal deference to state professional standards on pain management.
APF: The bill "defines 'legitimate medical purpose' as it relates to pain management."
Fact: No, the quoted provision forbids the federal government to establish any restrictive definition, by classifying pain management as "legitimate medical purpose" and thus outside the DEA's investigative purview. The bill also states that its provisions cannot be used "to provide the Attorney General with the authority to issue national standards for pain management and palliative care clinical practice, research, or quality."
APF: "The bill defines the scope of pain management and palliative care in the context of physician-assisted suicide."
Fact: As noted above, the bill does not define this scope but rather prohibits the establishment of a restrictive legal definition. It does, of course, distinguish pain management from the very different practice of deliberately using a sudden lethal overdose of controlled substances for the purpose of intentionally causing death. So the bill's provision establishing a clear and explicit "safe harbor" for pain management is followed by this sentence: "Nothing in this section authorizes intentionally dispensing, distributing, or administering a controlled substance for the purpose of causing death or assisting another person in causing death." Similar language is already found in the AMA's ethics manual; in virtually all state laws on advance directives, which explain that documents for withdrawing medical treatment cannot be used to authorize assisted suicide or euthanasia; in recently enacted state laws against assisted suicide in Iowa, Rhode Island, Louisiana, Indiana, etc.; in the federal Patient Self-Determination Act; and in every other federal health program, through the Assisted Suicide Funding Restriction Act of 1997. The U.S. Supreme Court has upheld this legal distinction as a helpful and reasonable way to protect pain management without allowing the deliberate killing of patients. The APF presents no evidence why this well-established distinction is less appropriate here. If this disclaimer were not present, the bill's "safe harbor" for pain management that may "increase the risk of death" would provide new federal protection for cases where the "risk" of death is 100% and is the intended goal of the physician's action. This bill would then actively endorse physician-assisted suicide.
APF: The bill "creates an obligation for DEA to investigate and question the intent of physicians in prescribing controlled substances for pain management."
Fact: Not at all. The only obligation this bill creates for the DEA is to train its personnel to "better accommodate" practitioners' legitimate need for controlled substances for pain relief. Since current law allows the DEA to scrutinize any use of these drugs that may endanger "health and safety," a standard forbidding only deliberate and intentional killing of patients greatly increases protection for doctors compared to current law; the bill provides additional protection by requiring that the DEA must have "clear and convincing evidence" of this intent (not the usual "preponderance" of evidence) to take action against a physician's DEA prescribing license.
APF: "PRPA does not prohibit physician-assisted suicide," but only the use of federally controlled drugs for the practice.
Fact: At last, a true statement. This bill governs only an area of clear federal jurisdiction, that of federally controlled drugs, and does not overturn state laws allowing assisted suicide -- it simply says that the federal government will not authorize or assist this practice. Since this is now conceded even by the group leading the campaign against this bill, opponents should stop making the false argument that this bill overturns Oregon's law or tramples on "states' rights."
APF: "All of the health and medical groups opposed to PRPA oppose or are neutral on the issue of physician-assisted suicide."
Fact: This is a ludicrous claim. The Hemlock Society, Oregon Death with Dignity, and Compassion in Dying actively oppose this bill and some of their leadership is on the American Pain Foundation's E-mail network organizing the opposition. (They have urged their members not to mention their "right-to-die" credentials when contacting Senate offices, but to argue that the bill will "chill" pain control and violate states' rights.) The state medical societies most strongly opposing the bill – Rhode Island, Vermont, Oregon – have dissented from the American Medical Association position against physician-assisted suicide for years. And some national medical groups in APF's coalition, like the American Pharmaceutical Association, have formal policies opposing any and all laws restricting their members' ability to assist suicides. The APF itself has said that its top priority is deletion of the sentence that keeps the bill's "safe harbor" for pain management from authorizing assisted suicide and euthanasia. In effect, APF will stop opposing the bill only if it is amended to provide the same protection for intentional killing that it now provides for pain management. This does not sound like neutrality on assisted suicide.
For more information on the Pain Relief Promotion Act, see www.passprpa.org and www.nccbuscc.org/prolife/issues/euthanas/teststate.shtml.