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Reprinted by permission of Elsevier Science Inc.: A New Drug Law for the States: An Opportunity to Affirm the Role of Opioids in Cancer Pain Relief, by David Joranson Journal of Pain & Symptom Management, Volume 5(5): 333-336. Copyright 1990 by the U.S. Cancer Pain Relief Committee.

Guest Column

A New Drug Law for the States: An Opportunity to Affirm the Role of Opioids in Cancer Pain Relief

David E. Joranson, M.S.S.W.

Amidst growing social and political anti-drug sentiment, there is a parallel but far less visible concern about the effects of the 'war on drugs' on patients, in particular cancer patients with pain.^1-2 As we pass through another cycle of drug phobia, we must take care that our national policy does not disregard medical and scientific knowledge, and that our drug laws and regulations do not impede medical practice or stigmatize those who benefit from drug treatment.

Problems with State Drug Laws

Federal law clearly recognizes the public health benefits of controlled substances, in particular the use of opioids to treat intractable pain, and also recognizes that an uninterrupted supply must be maintained for legitimate medical needs. At the state level, however, a preliminary study has reported that state laws do not contain these important principles, and that some state laws and regulations impede prescribing of opioids used in the treatment of cancer pain.3 Further, a number of state legislatures are considering measures such as triplicate prescription programs which would additionally regulate prescribing of opioids and other controlled substances.

A Reaffirmation of Basic Principles

A new model drug law will soon be considered by the state legislatures. The National Conference of Commissioners on Uniform State Laws (NCCUSL) recently revised the Uniform Controlled Substances Act (UCSA). The new UCSA will be sent to the state legislatures later this year for consideration as a replacement for or refinement of current law. This is a unique opportunity for health professionals to work for a law that reaffirms the essential medical uses of controlled substances; recognizes that opioid treatment of intractable pain is a part of ordinary professional practice; distinguishes between an "addict" and a pain patient who is physically dependent on opioids; reaffirms confidentiality of patient identity; and establishes a program to control diversion that does not require monitoring of prescribing to patients. This will also be an opportunity to identify and remove other provisions that impede legitimate prescribing.

The provisions of the new UCSA that relate to the medical use of controlled substances are the following:

Achieving Balance in Controlled Substances Law. State laws do not adequately recognize the essential medical uses of controlled substances as does the federal law because the original UCSA, which served as the model for today's state drug laws, did not include a "findings and declarations" section parallel to the one in the federal Controlled Substances Act. This has been only partially corrected in the revised UCSA by a modification of the "introduction" to the UCSA to recognize that controlled substances are necessary for public health and that their availability for medical and scientific purposes must be assured. However, the "introduction" to the UCSA seldom becomes a part of state law. Consequently, each state legislature should be asked by health professionals or organizations to include a "findings and declarations" section. In this way, state drug laws will finally contain the dual principles that have guided international and federal drug law for many years. The following language, adapted from the "Congressional findings and declarations" in the federal Controlled Substances Act (21 USC 801, 823) is recommended:

The State of [name of state] makes the following findings and declarations:
1) Many of the drugs included within this [Act] have useful and legitimate medical and scientific purposes and are necessary to maintain the health and general welfare of the people of this State. Their uninterrupted availability for these purposes must be assured.
2) The manufacture, distribution, possession and use of controlled substances for other than legitimate purposes has a substantial and detrimental effect on the health and general welfare of the people of this State and should be prohibited.

Narcotic Treatment of Intractable Pain. The new UCSA contains a section which parallels federal regulations (21 CFR 1306.07[c]), recognizing that the prescribing, administering and dispensing of narcotic analgesics for intractable pain is a part of ordinary professional medical practice.

Meaning of "Addict." The new model law also contains a "comment" which explains that the UCSA does not rely on terms such as "addict," "habitual user" and "drug dependent person," but that if such a term is used, the state should assure that the definition does not include patients receiving controlled substances pursuant to the lawful order of a practitioner.

Confidentiality. The new UCSA recommends a provision from the original UCSA which states that physicians are not required to reveal the identity of patients treated with controlled substances.

Drug Diversion. The new UCSA recommends that states establish an interagency diversion control program. The program is patterned after successful state programs and a federal provision (21 USC 873[c]) under which the U.S. Drug Enforcement Administration provides state agencies with information to help them identify sources of diversion. The purpose of the program is to improve the use of existing sources of information to identify the causes of diversion, and to focus enforcement resources on the diversion problem through better coordination among state and federal agencies.

It is important to recognize that most of the revisions to the UCSA were made to improve or tighten administrative and criminal aspects of the Act. A provision to control "designer drugs" has been added and a number of new criminal penalties are recommended, for example, for conspiracy, distribution near schools, use of children in illicit drug operations, continuing criminal enterprises, and money laundering. Mandatory minimum penalties are presented as an option for some trafficking crimes. The section on forfeiture of property was removed and will be revisited separately by the NCCUSL. In addition, the UCSA now contains a drug abuse treatment option in lieu of sentencing for certain drug offenders and a monetary assessment for violation of the Act to support a state fund for education and treatment.

Working with the Uniform Law Commission

The legislature in every state is likely to consider all or parts of the new UCSA, depending upon what they hear from constituents. Those who are interested in supporting adoption of the UCSA should contact the NCCUSL liaison member listed below to learn of plans for introducing the UCSA. Members of the NCCUSL are lawyers, judges, legislators and law school professors appointed by the governor, as well as the person responsible for drafting legislation for the state. Additional information about the NCCUSL and the UCSA can be obtained from John McCabe, Legislative Director, NCCUSL, 676 North St. Clair Street, Suite 1700, Chicago, IL 60611; tel. 312/915-0195; FAX 312/915-0187.

This is an important opportunity for health professionals and organizations to come forward and work with the NCCUSL and state legislators to achieve balanced controlled substances laws in the states.

References

1. Advances in pain research and therapy, vol 11: drug treatment of cancer pain in a drug-oriented society. New York: Raven , 1989.

2. Relieving patient pain in a regulated environment: a medical dilemma for the 1990s. J Pain Symptom Manage 1990;5:Sl-S62.

3. Joranson DE. Federal and state regulation of opioids. J Pain Symptom Manage 1990;5:Sl2-S23.