Update on agents of the prescriber

Six months since the Drug Enforcement Administration released its statement of policy on prescriber agents in long-term care facilities and not a whole lot has changed, despite the efforts of many long-term care advocates like LeadingAge who are pushing for legislative amendments. “I’ve heard rumors that we won’t hear anything about legislative language until fall 2011,” said Jennifer Hilliard, public policy attorney for LeadingAge, during a legal update today at the Future of Aging Services Conference in Washington, D.C.

The legislative changes that Hilliard is referencing involve the Controlled Substances Act of 1970, which is “badly in need of updating,” she said. While the DEA’s statement of policy in 2010 made it somewhat easier for schedule III-V medication prescriptions to be communicated by LTC nurses to pharmacies, LeadingAge is calling for actual amendments to the Controlled Substances Act—which the DEA must abide by in its enforcement practices—to allow for schedule II painkiller scrips to be communicated just as easily, ensuring residents receive these essential meds with as few delays as possible.

So where are things headed in the coming months? Hilliard offered up, by her estimation, the three most likely outcomes in regards to changes in the way nurse agents in long-term care facilities are handled—with her odds of each one being implemented:

1. No change at all. (50 to 1 odds) The status quo, as Hilliard put it, could very well remain with the DEA unable to turn a blind eye toward schedule II meds.

2. The Ohio Waiver. (10 to 1 odds) A petition from the Ohio Board of Pharmacy, supported by the National Association of Boards of Pharmacy, calls for optional state licensing and DEA registration of long-term care facilities. A couple problems: 1.) It still only addresses schedule III-V meds; and 2.) It would have to be recognized by the DEA and all 50 states, meaning each state would have to pass legislation—also meaning it would take a heck of a long time to go into effect. Hilliard said the petition is currently being considered by the Department of Justice.

3. Legislative agreement. (“Where your even money is.”) An actual amendment to the Controlled Substances Act, allowing schedule II scrips to be communicated by nurse agents with verbal or fax orders, and without the need for facilities to be DEA-registered. Nurse agents would still have to be identified as individuals, as opposed to blanket agreements bestowing agent status upon job titles (such as director of nursing), but that would probably be viewed as a minor administrative inconvenience if residents are getting their needed meds on time. This initiative is currently being discussed at the Office of Management and Budget, Hilliard said.

There are some complicating factors to the legislative agreement coming to fruition. For instance, there will be likely changes to any draft legislation. Then there are the “vagaries—or political games—of the legislative process. Finally, and perhaps most unclear, is whether or not such legislation would receive enough Republican support as it would essentially be voting to change something “law enforcement oriented,” Hilliard said.

After the session, I asked Hilliard why she thinks the DEA has been so reluctant to engage in public discourse on this issue. “Because it’s a law enforcement agency as opposed to a standard regulatory agency,” she said. “I think their view is diversion is happening and we’re doing this to prevent diversion and it’s a law enforcement issue. We don’t need to say any more than that.

“I have no doubt they understand the issue now because we’ve been so vocal about it.”

Of course, as Hilliard pointed out, until legislation passes that would redirect the DEA’s enforcement practices in long-term care facilities, those who are in the most immediate need will be the ones who suffer. “One thing I can tell you is today—and I’ve been working on this for two years—until this problem is dealt with, nursing home residents are going to experience unacceptable delays in receiving pain medication.”

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