KOHL RECEIVES ASSURANCES FROM DOJ ON DELIVERY OF PAIN MEDICATION IN NURSING HOMES; RELEASES HOLD ON NOMINEE FOR DEA ADMINISTRATOR

WASHINGTON - U.S. Senator Herb Kohl, Chairman of the Special Committee on Aging and a member of the Judiciary Committee, released his hold on the nomination of Michelle Leonhart, tapped to lead the U.S. Drug Enforcement Agency (DEA), based on assurances he has received from U.S. Attorney General Eric Holder relating to the delivery of pain medication in nursing homes. Earlier this year, Kohl brought attention to the unintended consequences of the DEA's heightened scrutiny of prescribing practices in long-term care settings at an Aging Committee hearing on the topic. According to many sources within the long-term care industry, vulnerable patients have at times been left to languish in pain as nursing home nurses and doctors strive to adhere to the Controlled Substances Act. After numerous failed attempts to work with the DEA on the issue, Kohl placed a hold on Ms. Leonhart's nomination earlier this month.

 

"Attorney General Holder assured me that he would be personally responsible for promptly seeing this matter through the review process both at the Justice Department and administration-wide. Based on our agreement, 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 112 ^th Congress. Time is of the essence for nursing home residents who need immediate pain relief," said Kohl.

 

As part of the agreement with Attorney General Holder, the Department of Justice (DOJ) will deliver draft legislation to Senator Kohl in January outlining certain changes to the Controlled Substances Act. The legislation will deem certain nurses or other licensed health care professionals, who are designated by the nursing home as agents of DEA-licensed practitioners (practitioners being the resident's attending physician or specialist), as authorized to transmit the practitioner's order for a controlled substance, specifically Schedule II drugs, to DEA-licensed pharmacies, either orally or by fax. In exchange, nursing homes, practitioners, and pharmacies will be required to take certain steps to verify their accountability.

 

BACKGROUND

 

An Aging Committee investigation has found widespread confusion among nursing home providers, who are trying to change their protocols to adhere to DEA's expectations with little to no compliance assistance from the agency.   More disturbingly, the Committee has received numerous reports from throughout the country of actual harm to nursing home residents who remained in unrelieved pain for hours or even days.

 

At an Aging Committee hearing in March , panelists detailed a recent enforcement initiative launched by the DEA that has caused many nursing home patients to experience serious delays in receiving the medication they need to control their pain. A number of pharmacies, including several in the Midwest, are facing huge administrative fines from DEA because they dispensed drugs based on doctors' verbal orders, instead of obtaining written prescriptions directly from the physicians. 

 

At Ms. Leonhart's nominating hearing before the Judiciary Committee in November, Kohl expressed his disappointment that the DEA had not followed through on the pledges it made to the Aging panel, and stated that he would like to see significant progress on the issue prior to her final confirmation. Kohl also mentioned to Ms. Leonhart that he had requested comments from DEA on draft legislation back in August, and had yet to receive a response. Senator Sheldon Whitehouse (D-RI) joined Senator Kohl in calling for a more robust response from the DEA. Kohl and Whitehouse first reached out to the DEA on the delivery of pain medication in nursing homes in an October 2009 letter .

 

"At [the Aging] hearing, the Deputy Assistant Administrator of the DEA assured me that your agency would act quickly to solve this problem. And, when I met with you in early May, you assured me that this was a priority and that you also would address the problem swiftly," Kohl said at the nomination hearing. "It appears that DEA is putting paperwork before pain relief. I would like to see much more progress made on this issue before you are confirmed."

 

Kohl acknowledged that due to his continuous pressure, the DEA finally released new guidelines in October intended to reduce the delay that some nursing home residents face in receiving painkillers. Under the new rule, physicians may now authorize nurses employed by long-term care facilities to phone in their oral prescriptions for certain medications to pharmacies. Unfortunately, the changes still do not give nurses the ability to transmit prescriptions for other important medications, including morphine. 

 

Senator Kohl has been working to craft legislation that would grant nurses, who are charged with the day-to-day care of residents in nursing homes, with the authority to call in orders for pain relief medication to pharmacies as necessary following consultation with the resident's doctor, who in most cases is on-site only periodically.  In other words, nurses would be considered "agents" of doctors when placing orders for controlled substances, including Schedule II drugs.  The bill would also create a federal registration category for nursing homes under the jurisdiction of DEA, and would require nursing homes to certify that all staff members have received anti-diversion training. 

                       

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