DEA Plans Further Cuts in Rx Opioid Supply in 2024

By Pat Anson, PNN Editor

Despite chronic shortages of opioid pain medication around the country, the U.S. Drug Enforcement Administration is planning to further reduce the supply of oxycodone, hydrocodone, morphine and other opioids in 2024.

The DEA sets annual production quotas for opioids and other controlled substances after consulting with the Food and Drug Administration, Centers for Disease Control and Prevention, and individual states about their projected medical and research needs. If the proposed cuts are finalized next month, 2024 will be the 8th consecutive year that DEA reduced production quotas for opioid manufacturers.

“FDA predicts that levels of medical need for schedule II opioids in the United States in calendar year 2024 will decline on average 7.9 percent from calendar year 2023 levels. These declines are expected to occur across a variety of schedule II opioids including fentanyl, hydrocodone, hydromorphone, oxycodone, and oxymorphone,” DEA said in a public notice published in the Federal Register.

There will not be 7.9% cuts across the board for every opioid. The steepest cuts will be in the supply of codeine and prescription fentanyl, while production quotas for oxycodone and hydrocodone will be reduced only marginally.  

Proposed Cuts in 2024 Opioid Supply

- 8.3% Codeine  

- 7.6% Rx Fentanyl  

- 4.3% Morphine

- 2.1% Hydromorphone 

- 0.3% Oxycodone   

- 0.3% Hydrocodone

Since reaching their peak in 2015, DEA production quotas have been reduced by over 68% for oxycodone and nearly 73% for hydrocodone, the two most widely prescribed Schedule II opioids.

The primary goal of the DEA in cutting the supply is to reduce the risk of diversion, abuse and overdose, but there is little evidence the policy is working or even needed. Prescription opioid use has been cut in half in recent years, but overdose deaths have grown to record levels, fueled primarily by illicit fentanyl and other street drugs.

Fears about patients selling or diverting their opioid medication also appear overblown, as the DEA estimates the diversion risk for hydrocodone at only 0.31% and 0.28% for oxycodone. That means for every pill that’s sold or stolen, about 300 pills are used by the patient they were intended for.

Federal health agencies appear to have turned a blind eye to opioid shortages. For several months, the American Society of Health-System Pharmacists (ASHP) has warned of shortages of immediate release oxycodone, oxycodone/acetaminophen tablets, and hydrocodone/acetaminophen tablets. But those shortages have not been publicly acknowledged by the DEA or FDA, and have not been added to the FDA’s drug shortage list.

More ADHD Meds, Cannabis and Psychedelics

The DEA and FDA have been more responsive to complaints of shortages of Adderall and other stimulants used to treat attention-deficit/hyperactivity disorder (ADHD). The DEA is modestly raising its production quotas for stimulants after the FDA predicted a 3.1% increase in their medical use in 2024.

“DEA is committed to ensuring that patients who need stimulant medications have access to them and to ensuring that these drugs are being prescribed thoughtfully and responsibly, and we will continue working with our partners inside and outside of government to do so,” DEA Administrator Ann Milgram wrote in a letter released this week. She said 17 out of 18 drug makers had agreed to increase their production of stimulants under existing 2023 quotas.

In addition to stimulants, the DEA is also raising 2024 production quotas for cannabis, psychedelics and hallucinogens in response to an “increased level of research and clinical trials” involving the Schedule I substances.

The DEA’s quota process may undergo significant changes in the years ahead. The agency wants to be “more nimble” in responding to shortages and increases in demand. To do that, it is seeking access to sales and inventory reports from drug makers to better assess the supply that is available.

“DEA believes that changes to reporting requirements are necessary to improve both the type of data collected and the timeliness of that data, allowing DEA to be more nimble in its administration of the quota program. Future regulatory changes may seek to address the lack of real-time inventory and sales data accessible to DEA, the lack of information on production lead times, and issues of timeliness,” the agency said.

“DEA also is considering methods by which it might increase transparency in its quota setting process. Future regulatory proposals may define additional steps, including such concepts as public notification and an opportunity for public input when prescribing rates for controlled substances deviate substantially from FDA's estimate of future use. Furthermore, DEA is considering regulatory changes which will authorize it to reduce a manufacturer's individual manufacturing or procurement quota in order to apportion it to another manufacturer.”

To leave a comment on the DEA’s 2024 production quotas, click here. Public comments must be submitted online or in writing on or before December 4, 2023.

Lawsuits Accuse DEA of ‘Incompetence’ in Regulating Drug Supply

By Pat Anson, PNN Editor

Two federal lawsuits accuse the Drug Enforcement Administration of incompetence and heavy-handed regulation of the nation’s drug supply, which could worsen shortages of ADHD medication and drive a drug manufacturer and specialty pharmacy out of business.

At issue is the DEA’s enforcement of the Controlled Substances Act (CSA), a federal law that gives the agency broad authority to limit the production and sale of opioids, ADHD drugs and other controlled medications that have the potential for abuse. Under the CSA, the DEA decides who can write and dispense prescriptions for hundreds of controlled substances and the amount that drug makers can produce.   

“They shouldn't be playing God with people's medications. And really, that's what's happening here,” says attorney Jim Walden, who recently filed a lawsuit in the Second Circuit Court of Appeals on behalf of Ascent Pharmaceuticals, a leading producer of generic drugs used to treat attention deficit hyperactive disorder (ADHD), a condition that primarily affects children.

By its own estimate, Ascent produces about 20% of the nation’s supply of generic ADHD medication. In its 12-year history, Ascent had never been accused of a regulatory violation or faced any sanctions, so it was surprised to learn on September 29 that DEA would not renew its production quota for ADHD drugs because it has doubts about the company’s record keeping.

“After reviewing these records, DEA lacks confidence in the data provided by Ascent in its quota requests,” the agency said in its denial.

Ascent’s lawsuit disputes that claim, saying DEA investigators spent 18 months “bumbling about” its business records, without ever making clear what they were concerned about or why the quota was denied.

“The Quota Denial nowhere explains the basis for DEA’s alleged confidence gap. If that detail resides in the administrative complaint served alongside the Quota Denial, DEA should be embarrassed: the errors in it reveal a fundamental inaptitude with DEA’s own recordkeeping requirements,” the lawsuit alleges.

“This case highlights the perils of a hapless administrative agency, which (ironically) acknowledged the scarcity of ADHD medications on the very day it effectively sought to shutter Ascent, a company with a time-proven capability of quickly getting medicine to children in need. Ascent and patients have been victimized by DEA’s incompetence, having rendered an arbitrary, capricious, and unsubstantiated quota denial based on erroneous conclusions.”

Before going into private practice, Walden spent 10 years as a federal prosecutor, often handling DEA cases. He’s asking the federal appeals court to issue an emergency injunction that forces DEA to approve Ascent’s quota application.

“We're in the middle of a national scarcity crisis that is really putting children at risk. So it's very, very hard to understand what could possibly be motivating DEA, because they're obviously not alleging that there are quality control problems with the drugs or that there's a threat of diversion,” Walden told PNN. “So, by definition, their decision is arbitrary and it should be reversed.”

The DEA’s actions do seem puzzling. Shortages of ADHD drugs began in the early stages of the pandemic and have steadily worsened, as more children and adults sought mental health treatment. Yet in December of last year, when the DEA issued its quotas for 2023, the agency said there was no need to increase production because the supply of Adderall and other stimulants was sufficient to meet demand.

“The majority of the manufacturers contacted by DEA and/or FDA have responded that they currently have sufficient quota to meet their contracted production quantities for legitimate patient medical needs,” the DEA said in the Federal Register. “Based on this trend, DEA has not implemented an increase.”

A few months later, DEA and FDA officials changed their tune. In an unusual joint letter,  FDA commissioner Dr. Robert Califf and DEA Administrator Anne Milgram admitted there was an ADHD shortage, blamed drug makers for not making enough medication, and washed their hands of the problem.

“This is not a problem that the FDA and DEA can solve on our own,” Califf and Milgram wrote. “The FDA and DEA do not manufacture drugs and cannot require a pharmaceutical company to make a drug, make more of a drug, or change the distribution of a drug.” 

DEA production quotas may also be partially responsible for shortages of opioid pain medication. In recent years, the agency has aggressively cut the supply of many opioids, leading to current shortages of hydrocodone and oxycodone.     

Judge, Jury and Executioner

The second lawsuit against DEA involves Simfa Rose Pharmacy, a Pembroke Pines, Florida pharmacy that specializes in making drugs for seniors, palliative care, and cancer patients.

Simfa Rose came under scrutiny nearly three years ago when investigators saw it was filling an unusual number of high-dose, immediate release opioid prescriptions, often in combination with stimulants and muscle relaxants. Some of the prescriptions were paid for in cash.

As far the DEA is concerned, these were signs of “multiple red flags of abuse or diversion” that posed “an imminent danger” to public health. On May 2 of this year, DEA suspended the pharmacy’s license to dispense controlled substances, a move that severely impacts its ability to continue operating.

“It’s affected them greatly. It’s a miracle they are still open at this point,” says Vittorio Penza, a lawyer for Simfa Rose.

Under DEA rules, there is only one recourse for a pharmacy or doctor to challenge a license suspension – an appeal to a DEA Administrative Law Judge. Such appeals are not only time consuming; they are rarely granted. The few that are granted are referred back the DEA Administrator, who then has the final say on whether the license is restored or permanently revoked.

The Simfa Rose lawsuit alleges this is an “unconstitutional administrative process” that denies the pharmacy due process.

“It’s totally nuts what they are doing. You have a judge, jury and executioner system. It’s all in secret. They don’t publish anything until it’s a decision that’s favorable to them. You’re kept in the dark by it,” Penza told PNN. “All you have to do is take someone's license, whether they need it or not. You're still screwed and you're going to go down. Because once your reputation is tainted, you lose your customers and you lose the patients.”

Penza says the expert witness hired by DEA to review the pharmacy’s practices made outrageous claims.

“Their expert says you can't fill immediate release opioids more than two times. If you are a cancer patient or someone on their deathbed, it doesn't matter. It's an unresolvable red flag if you give someone an immediate release opioid,” he said. “And the kicker is he doesn't even look at what the patient's diagnosis is. One of the patients was shot was shot in the back, the bullet is still lodged in there. The other one was wounded overseas in the Gulf War.”

Perhaps the biggest challenge faced by someone seeking to reverse a DEA decision is that federal agencies have sovereign immunity – they can’t be sued for monetary damages. All they can do is challenge the DEA’s statutory authority under the Controlled Substances Act and its use of an in-house “kangaroo court” to keep pharmacies, doctors and drug makers in line.        

“I've come to realize that this is a nationwide issue. I've been getting calls ever since we filed from around the country. It pains me to hear some of these stories of doctors and nurses and pharmacists that have just been stripped of their livelihoods because of what the DEA is doing,” Penza said.  

Is DEA Practicing Medicine Without a License?

By Pat Anson, PNN Editor

Tomorrow the U.S. Drug Enforcement Administration holds another Prescription Drug Take Back Day, a campaign that encourages people to help combat drug addiction and overdoses by disposing of their unneeded medication at thousands of drop-off locations nationwide.

It’s also a day the DEA uses to further stigmatize the prescription drugs that millions of Americans rely on to control their pain and have functional lives.

“The majority of opioid addictions in America start with prescription pills found in medicine cabinets at home. What’s worse, criminal drug networks are exploiting the opioid crisis by making and falsely marketing deadly, fake pills as legitimate prescriptions, which are now flooding U.S. communities,” DEA Administrator Anne Milgram said in a statement. “I urge Americans to do their part to prevent prescription pill misuse: simply take your unneeded medications to a local collection site.”

The DEA’s campaign to reduce the supply of opioid medication goes well beyond drug take back days. In 2022, the agency is planning to cut production quotas for oxycodone, hydrocodone and other widely used opioid pain relievers. If the proposed quotas published this week in the Federal Register are adopted – and past history indicates they will be – it’ll be the sixth consecutive year the DEA has reduced the supply of opioid medication. 

During that period, production quotas have fallen by 63% for oxycodone and 69% for hydrocodone. And opioid prescribing has fallen to levels not seen in 20-years.

But with drug overdoses climbing to record highs, critics say there is no evidence the DEA’s strategy is working. And they are alarmed that a law enforcement agency is setting policies that affect the healthcare choices of Americans -- in effect, practicing medicine without a license.

“I think a very strong argument can be made that DEA is inappropriately exercising medical judgment based on their reasoning for supporting another production reduction for opioid analgesics,” says Dr. Chad Kollas, a palliative care specialist in Florida. “Federal policy has encouraged blind reductions in opioid prescribing, so for DEA to cite that trend as evidence for a reduced need for the medical supply of opioid analgesics is a self-fulfilling prophecy.

“Reduced prescribing has not led to a reduction in overdose deaths involving opioids, but rather has been associated with an increase in overdose deaths and suicides in patients with chronic pain who have been forced off their pain medications. Federal opioid policy calling for non-focused, reduced opioid prescribing has been an abject failure.” 

18.88% Decline in ‘Medical Need’

Under federal law, the DEA is required to annually set production quotas for opioids and other controlled substances. It does so after consulting with the Food and Drug Administration, Centers for Disease Control and Prevention, and other federal agencies to establish the amount of drugs needed for medical, industrial and scientific purposes.  

"The responsibility to provide these estimates of legitimate medical needs resides with FDA. FDA provides DEA with its predicted estimates of medical usage for selected controlled substances based on information available to them at a specific point in time in order to meet statutory requirements,” DEA explained in the Federal Register.

“With regard to medical usage of schedule II opioids, FDA predicts levels of medical need for the United States will decline on average 18.88 percent between calendar years 2021 and 2022. These declines are expected to occur across a variety of schedule II opioids including fentanyl, hydrocodone, hydromorphone, oxycodone, and oxymorphone."

Asked to comment on the DEA’s statement, an FDA spokesperson said the agency sent a letter to the DEA in April 2021 using pharmaceutical sales data from prior years to create “statistical forecasting models to estimate medical need for the next two years.” The FDA letter never actually used the 18.88% estimate, that was a figure apparently calculated by the DEA itself.

“In the letter FDA provided an estimate for need of each individual active ingredient in various opioid medications for 2021 and 2022. It appears the DEA estimated the 18.88% decrease as an average across the list of opioid active ingredients, presumably based on the estimates we provided.  We do not disagree with their forecast for this decreasing trend of opioid need,” the FDA spokesperson wrote in an email to PNN.

Opioid ‘Red Flags’

In its statement in the Federal Register, DEA also said it relies extensively on data from prescription drug monitoring programs (PDMPs) to find “red flags” that may indicate a drug is being abused or diverted. The DEA is particularly concerned about daily opioid doses that exceed 240 morphine milligram equivalents (MME). That’s a very high dose for most people – and well above the CDC opioid guideline’s recommended limit of 90 MME.

“DEA believes that accounting for quantities in excess of 240 MME daily allows for consideration of oncology patients with legitimate medical needs for covered controlled substance prescriptions in excess of 90 MME daily. Higher dosages place individuals at higher risk of overdose and death. Numerous dispensings of prescriptions with dosages exceeding 240 MME daily may indicate diversion such as illegal distribution of controlled substances, or prescribing outside the usual course of professional practice,” the DEA said.

Where does the 240 MME threshold come from? That’s apparently another case of the DEA coming up with its own estimates to determine whether a dose is medical necessary. It certainly doesn’t come from the CDC guideline, which was never meant to include patients suffering from cancer pain or those in palliative care.

“The DEA is misapplying the CDC opioid guidelines, which were explicitly not meant to apply to patients receiving palliative care,” Dr. Kollas told PNN. “Moreover, it’s disingenuous for DEA to infer that patients receiving higher doses of opioid analgesics are diverting them, when the vast majority of opioid overdose deaths arise from illicit fentanyl in counterfeit pills.”

Just how serious is the drug diversion problem? Not so serious at all, according to the DEA’s own National Drug Threat Assessment, an annual report that for years has said that less than 1% of legally prescribed opioids are diverted.  

“The number of opioid dosage units available on the retail market and opioid thefts and losses
reached their lowest levels in nine years,” the DEA’s 2020 report found.

The same report also found that illicit fentanyl, not prescriptions opioids, is “primarily responsible for fueling the ongoing opioid crisis.” That’s a view shared by the American Medical Association, which declared in 2020 that “the nation no longer has a prescription opioid-driven epidemic.”

‘Stop Punishing Pain Patients’

If that makes you wonder why the DEA is so intent on further reducing the supply of opioids, you’re not alone.

“This is pure insanity. The scientific data from the CDC & NIH (National Institutes of Health) show that the overdose crisis is NOT due to prescription opioid analgesics,” wrote Chuck Robertson, one of hundreds who left comments in the Federal Register on the DEA proposal. “We are in the midst of the worst supply chain crisis in modern history, so you want to continue to cut back on production? All this is doing is putting hospitals and pharmacies at risk of being short medications that people need to control pain.”

“Please don’t cut production quotas of the opioids listed. There are hundreds of stories of people who need opioid medication therapy to even live at the most basic of functionality,” said Michelle Stifle, a chronic pain patient for 22 years. “This inhumane treatment is discriminatory. Stop punishing pain patients for the faults of others.” 

“Please do not cut the quotas anymore. My wife has several autoimmune diseases that cause horrible pain. She was completely cut off of her pain meds after almost 20 years of use,” said Jeffrey Smith. “She never took more than prescribed and never abused them. It allowed her to live somewhat normally. Now she suffers every day and has no life. I'm afraid the time is coming she won't be able to take the pain anymore.” 

“I was forced tapered off my pain meds after taking them responsibly for 17 years. I now spend 75 percent of time in bed. I cannot function and am in constant pain,” said Shelly Allen. “I recently tore my rotator cuff and couldn't even get a few days’ worth. Where there may have been overprescribing there is now underprescribing. It's my body, why can't I choose my own pain relief in reasonable doses?”

“We don't need more cuts to the supply of opiates. It doesn't help avoid addiction or address it. All cutting the supply further will do is promote health care rationing,” wrote Amber Smith. “Opiates are necessary for surgery and other medical needs. Would the DEA ever suggest cutting the supply of chemotherapy or insulin? No, yet those are every bit as necessary to patients as opiates are.”

The DEA did not respond to a request for comment on this story. To leave your comment on the DEA’s proposed 2022 production quotas, click here. Public comments must be received by November 17.

DEA Proposes Cuts in Opioid Supply for Sixth Straight Year

By Roger Chriss, PNN Columnist

The U.S. Drug Enforcement Agency is proposing more cuts in the supply of opioids and other controlled substances in 2022. If adopted, it would be the sixth consecutive year the DEA has reduced production quotas for prescription opioids and other Schedule I and II drugs under the Controlled Substances Act.

Specifically, the DEA is proposing a 5.4% reduction in the supply of oxycodone, 3.9% for hydrocodone, 19% for morphine and 5.4% for prescription fentanyl. That’s in addition to the significant cuts already made since 2017. 

The DEA arrived at the quotas after consulting with the FDA, CDC, Centers for Medicare and Medicaid Services (CMS), and individual states to assess the medical, industrial and scientific need for controlled substances. The DEA also relied extensively on data from prescription drug monitoring programs (PDMPs) to identify “red flags” indicating the possible theft, illicit use and diversion of each substance.

Even though opioid prescribing has dropped significantly over the last decade, the DEA believes demand will fall even further in 2022.

“With regard to medical usage of schedule II opioids, FDA predicts levels of medical need for the United States will decline on average 18.88 percent between calendar years 2021 and 2022. These declines are expected to occur across a variety of schedule II opioids including fentanyl, hydrocodone, hydromorphone, oxycodone, and oxymorphone,” the DEA said in a statement published in the Federal Register.

The proposed opioid production quotas are the smallest in nearly two decades. The trend lines for several common Schedule II prescription opioids can be seen in the chart below. Since their peak in 2013, production quotas have fallen by 63% for oxycodone and 69% for hydrocodone.

Although the DEA maintains the “medical need” for opioids has declined, demand for healthcare has risen significantly. The U.S. population was 281 million in 2000 compared to 331 million today, and in the interim Americans have become older and less healthy, and surgical interventions for cancer and other diseases have become more common, as has trauma care.

In addition, the U.S. has been facing a pandemic for the past year and a half that increased the need for ICU with intubation, for which sedation with opioids is necessary. In 2020, the DEA raised its quotas for some substances because of this unanticipated demand.

In other words, the U.S. is trying to do more with less, trying to manage pain in a larger population with a higher disease burden while using fewer opioid analgesics.

The goal of these ongoing reductions is to address the overdose crisis. But as the CDC reported last week, the U.S. has seen over 96,000 drug fatalities in the 12-month period ending in March 2021. Some of this spike in deaths is a result of to the pandemic, but the ongoing saturation of the country with illicit fentanyl is clearly playing a key role. The DEA recently issued a public safety alert warning of a surge in counterfeit medication made with illicit fentanyl.  

How much further the DEA can go with quota reductions remains to be seen. Surgical and cancer care have been greatly impacted, and rapid tapering of people on long-term opioid therapy is causing harm.

The DEA has not been forthcoming about its ultimate goals and the methods used to assess progress, as it continues to shrink the supply of opioids. At this rate, we will likely reach pre-1995 prescribing levels within another year.

To make a comment on the DEA’s proposed 2022 production quotas, click here. Comments must be received by November 17.

Roger Chriss lives with Ehlers Danlos syndrome and is a proud member of the Ehlers-Danlos Society. Roger is a technical consultant in Washington state, where he specializes in mathematics and research. 

DEA: Drug Cartels Targeting Pain Patients as Potential Customers

By Pat Anson, PNN Editor

The Drug Enforcement Administration’s “National Drug Threat Assessment” is an interesting annual report that gives insight into drug trafficking and drug abuse trends in the United States that you don’t often see in the mainstream media..

The DEA’s 2020 report, released this month, is no exception. One hundred pages long, it covers a broad range of “unclassified” information about drug cartels, counterfeit medication and emerging trends in drug abuse.

“Although we have made progress in driving down the abuse of controlled prescription opioids, the United States continues to face challenges from both new and persistent threats,” said acting DEA Administrator Christopher Evans.

According to the DEA report, the diversion and abuse of opioid painkillers and other controlled prescription drugs (CPDs) are at their “lowest levels in nine years.”

While opioid pain relievers remain the most commonly abused type of prescription drug, most people don’t take them to get high.

The DEA said nearly two-thirds (64%) of drug users “identified relieving pain as the main purpose” for their misuse of painkillers – a staggering statistic that may say more about the poor state of pain care in the U.S. than anything else.

Ironically, the second most widely abused opioid medication was buprenorphine, which is combined with naloxone in addiction treatment drugs such as Suboxone and Zubsolv. The National Forensic Laboratory (NFLIS) reports that buprenorphine is abused far more often than methadone or hydrocodone, and appears poised to soon replace oxycodone as the most commonly abused prescription opioid. 

“Drug data reveals that buprenorphine reports from all participating federal, state, and local laboratories increased each year except a minor drop from 2018 to 2019. (NFLIS) reported a 50 to 67 percent decrease of hydrocodone, methadone, and oxycodone reports from 2014 to 2019, so the 27 percent increase of buprenorphine during that time frame was significant,” DEA said.     

Fentanyl Laced Counterfeit Pills

Not surprisingly, the DEA said illicit fentanyl was “primarily responsible for fueling the ongoing opioid crisis,” with Mexican drug cartels controlling most of the supply for the potent synthetic opioid. With hydrocodone, oxycodone and other legal opioid medications in short supply — and a lot of people with poorly treated pain — the DEA believes drug cartels are actively targeting pain sufferers as potential customers for counterfeit medication.

“The spread of fentanyl-laced counterfeit pills in the United States is likely due to Mexican TCOs (Transnational Criminal Organizations) seeking to further distribute fentanyl into prescription opioid user populations,” the DEA said. “The increasing number of counterfeit pills resembling prescription medications and users who may be pivoting to abusing illicit substances with waning CPD availability may prove to be a significant threat into 2021.”  

The counterfeit pill of choice for the drug cartels are fake 30mg oxycodone tablets, stamped with an “M” on one side and “30” on the other.

Known on the street as “Mexican Oxy” or “M30s,” the DEA says the blue tablets “demonstrate that traffickers are taking advantage of an established market for these pills.”

Illicit fentanyl tablets appear to be getting more lethal, with laboratory tests showing 26 percent of them containing a potentially fatal dose of fentanyl in 2019, compared to just 10 percent in 2017.

In one chilling paragraph, the DEA seemed to acknowledge it was losing the war on drugs to Mexican cartels and local criminal gangs.

“Barring significant, unanticipated changes to the illicit drug market, Mexican TCOs will continue to dominate the wholesale importation and distribution of cocaine, heroin, marijuana, methamphetamine, and fentanyl in U.S. markets. No other criminal organizations currently possess a logistical infrastructure to rival that of Mexican TCOs. Mexican TCOs will continue to grow in the United States through expansion of distribution networks and continued interaction with local criminal groups and gangs,” the agency warned.

Sometimes what is not disclosed in the DEA’s report is just as revealing as what is actually said. For example, while the DEA officially lists kratom as a “drug of concern” and even tried to ban the herbal supplement in 2016, the agency has never said a word about kratom in its annual threat assessment. Not in 2020. Not ever.  

Why is that? Is kratom not addictive or dangerous, despite all the public hand-wringing over the years by the Food and Drug Administration? In a 2018 letter to the DEA recently made public, federal health officials quietly withdrew their request to schedule kratom as a controlled substance because of “lack of evidence” it can be abused or posed a public health threat.

DEA Expanding Surveillance of Prescription Drug Data

By Pat Anson, PNN Editor

The U.S. Drug Enforcement Administration is making plans for a major expansion of its monitoring of prescriptions for opioids and other controlled substances, with the goal of identifying virtually every prescriber, pharmacy and patient in the country that shows signs of drug diversion or abusing their medication.

In a request for proposal (RFP) made in early September, the DEA asked software contractors to submit bids for the creation of a nationwide data system that would track “a minimum of 85 percent of all prescriptions” for Schedule II through V controlled substances. The RFP was first reported by the website Filter.

Critics say the surveillance program will have a chilling effect on many healthcare providers, who are already fearful of being flagged by law enforcement for prescribing and dispensing opioids and other medications to patients suffering from pain and other illnesses.  

“This RFP illustrates that the DEA, and U.S. Department of Justice more broadly, remains fixated on monitoring and scrutinizing the medical decisions of licensed health professionals while illegal fentanyl and heroin contribute to two-thirds of opioid-involved drug poisonings in the U.S.,” says attorney Michael Barnes, who is managing partner at DCBA Law & Policy, a law firm that advises healthcare providers.

“DEA agents have no business second guessing health care providers’ decisions on medical need and patient care. That’s a job for state licensing boards – and only when there is a valid complaint to investigate.”

‘Unlimited Access’ to Prescription Data

Hundreds of medications would be covered under the DEA’s surveillance program, including drugs used to treat pain, opioid use disorder, anxiety, and attention deficit hyperactivity disorder (ADHD).  Under the program, DEA investigators would have “unlimited access” to prescription data compiled over the last five years, including the names of prescribers and pharmacists, types of medication, quantity, dose, refills and forms of payment.

The names of patients would be encrypted, but if investigators suspect a medication was being abused or diverted, they could get a subpoena to quickly identify the patients involved.

“The subpoena process would be that we would generate a DEA Administrative Subpoena and send it to you for the unmasking of specified patients. The data provider would then need to respond to us providing the unmasked patient information that was requested within three business days,” the DEA said in response to a contractor who inquired how the subpoena process would work.      

Asked how many DEA investigators would have access to the prescription data, the agency said there could be over a thousand.

“We would start with 1,100 users and would renegotiate if more were needed. It is unlikely that 1,100 users will all access the system concurrently but is hypothetically possible in the future,” the agency replied.

Why the DEA is seeking to expand its monitoring of opioid prescriptions is unclear. In recent years, the number of prescriptions has fallen by about a third and the DEA itself estimates that less than one percent of legally prescribed opioids are diverted.

Bypassing PDMPs

State-run prescription drug monitoring programs (PDMPs) already track much of the information DEA is seeking, but law enforcement access to the data usually requires an active investigation or warrant – no data mining or fishing expeditions allowed. To maintain patient privacy, some states prohibit sharing prescription data with federal or out-of-state law enforcement agencies. Last year, the DEA had to sue Colorado to get access to the state’s PDMP data.

The DEA’s plan would bypass these privacy safeguards and effectively create a national PDMP for law enforcement. The agency would even be allowed to share some prescription data with unnamed “outside agencies and/or organizations without prior review by the Contractor.”      

The DEA did not respond to multiple requests for comment. In the RFP, the agency said it was required by law to maintain “comprehensive, detailed, accessible, and timely prescription, pharmacy, and prescriber information.”

Much of the data mining the agency is planning appears to go beyond the prescription data that is currently covered by PDMPs.  For example, the DEA wants to know the distance patients travel to see their doctors and pharmacies; whether patients living at the same address are getting the same drugs; whether a patient pays in cash for their medications; and whether a patient is getting a combination of opioids and benzodiazepines to treat their pain and anxiety.

“This DEA program will increase the fear associated with prescribing and dispensing controlled medications, making it even more difficult for people with pain, opioid use disorder, anxiety, insomnia, and ADHD to access individualized treatment. More such patients will be left in despair. It’s as though the federal government is unaware or does not care that the U.S. is in the midst of a suicide epidemic,” Barnes told PNN. 

‘Appalling for People’s Health’

The software contractor is also expected to provide DEA with a list of top prescribers and pharmacies that are writing and filling prescriptions for fentanyl, oxycodone, hydrocodone, buprenorphine and other opioids. The inclusion of buprenorphine is troubling to substance abuse treatment experts, because it is a primary ingredient of Suboxone. 

“The impact of including buprenorphine will be appalling for people’s health,” said Dr. Hannah Cooper, the chair of substance use disorder research at Emory University. Cooper fears the DEA surveillance program would make doctors and pharmacies reluctant to supply Suboxone to patients who need addiction treatment. 

“The idea that patient-level data is available to the DEA is quite frightening. We don’t want to make people worry that their decisions will be monitored by this highly punitive federal agency,” Cooper told Filter. “If you’ve been inhabiting a space where you’ve been persecuted by the federal government for some time, and they now have access to your private medical information, there will be tremendous consequences for population health and health equity.”

“This program will undoubtedly decrease the prescribing of controlled medications, including buprenorphine for opioid use disorder,” said Barnes. “Why in the world would the federal government, in the midst of a worsening drug-poisoning epidemic, discourage the prescribing of a medication to treat opioid use disorder and prevent opioid poisonings?”

The DEA deadline for receiving proposals from software contractors was October 20. No contract awards have been announced. The surveillance program could begin as early as December 1, 2020 and continue for a minimum of one year, with an option for up to four years. The potential cost of the program has not been disclosed.

DEA Proposes Cuts in Opioid Supply for Fifth Consecutive Year

By Pat Anson, PNN Editor

For the fifth year in a row, the U.S. Drug Enforcement Administration is proposing significant cuts in the supply of hydrocodone, oxycodone and several other opioid pain medications classified as Schedule II controlled substances.

The cuts are partly based on a prediction by the Food and Drug Administration that medical need for the drugs will decline by over a third in 2021.

In a notice published Tuesday in the Federal Register, the DEA proposes to reduce production quotas for hydrocodone by 9 percent and oxycodone by 13 percent in 2021. The supply of hydromorphone would be reduced by nearly 20% and fentanyl by 29% next year.  

The DEA first proposed cuts in the supply of opioids during the Obama administration and the trend has accelerated under President Trump. If approved, the 2021 production quotas would amount to a 53% reduction in the supply of both hydrocodone and oxycodone since 2017.

DEA consulted with the FDA, CDC and the Centers for Medicare & Medicaid Services (CMS) before making its recommendations. The key analysis came from the FDA, which provides DEA with annual estimates of medical usage for controlled substances like opioids.

“FDA's predicted levels of medical need for the United States was expected to decline on average 36.52 percent for calendar year 2021. These declines were expected to occur across a variety of schedule II opioids including fentanyl, hydrocodone, hydromorphone, codeine, and morphine,” the DEA said.

The FDA’s analysis, however, came before COVID-19 infections became widespread in the United States. That led to an increase in demand for injectable opioids used to treat seriously ill coronavirus patients on ventilators.

Faced with growing shortages of those drugs, the DEA issued an emergency order in April raising production quotas for injectable pain medications. Many of those drugs, such as injectable fentanyl and hydromorphone, are still listed on an FDA database of drug shortages.     

DEA said its production quotas for 2021 reflect an “anticipated increase in demand for opioids used to treat patients with COVID-19.”

“Despite this public health emergency, DEA remains focused on the challenges presented by opioid addiction and its effect on the health and wellbeing of the millions of Americans and their families who have become dependent upon or addicted to them. The potential for addiction and misuse exists in every community and remains a pressing health issue with significant social and economic implications,” the agency said.

As PNN has reported, prescription opioids play only a small role in the U.S. opioid epidemic. A new CDC report estimates that nearly 85% of drug overdoses in the first six months of 2019 involved illicit fentanyl, heroin and other street drugs. Prescription opioids were linked to about 20% of overdoses.

In addition to reducing the supply of opioids, the DEA is proposing a significant cut in the production quota for marijuana, which is still classified as a Schedule I controlled substance. To accommodate increased demand for marijuana research, the DEA raised the 2020 quota for marijuana to 3,200 kilograms. Those gains would be reversed in 2021, with production quotas for marijuana and marijuana extracts being reduced to 1,700 kilograms.

Public comments will be accepted on the DEA’s proposed production quotas until October 1, 2020. Comments can be made by clicking here.

DEA Allowing More Production of Opioids

By Pat Anson, PNN Editor

Faced with growing concerns about drug shortages, the U.S. Drug Enforcement Administration has increased the production quotas for some opioid pain medications and other controlled substances.

The move is in response to reports that hospitals are experiencing shortages of injectable fentanyl, morphine and hydromorphone, which are used as analgesics to keep COVID-19 patients comfortable while on ventilators.

“DEA is committed to ensuring an adequate and uninterrupted supply of critical medications during this public health emergency,” acting DEA Administrator Uttam Dhillon said in a statement.  “This will ensure that manufacturers can increase production of these important drugs, should the need arise.”

The emergency order signed by Dhillon increases 2020 production quotas by 15 percent for some Schedule II controlled substances, including fentanyl, morphine, hydromorphone, codeine, ephedrine and pseudoephedrine, as well as other drugs used in their manufacture.

Although some of those drugs have been listed for years on an FDA database of drug shortages, the DEA said as recently as three weeks ago that it was “unaware of any shortages of controlled substances at this time.”

In addition to pain medication, Dhillon’s order increases the annual production quota (APQ) for methadone, which is used primarily to treat opioid addiction. The order also raises the amount of Schedule III and IV controlled substances that can be imported into the United States, including ketamine, diazepam, midazolam, lorazepam and phenobarbital, which are also used to treat patients on ventilators.

“These adjustments are necessary to ensure that the United States has an adequate and uninterrupted supply of these substances as the country moves through this public health emergency,” Dhillon said in the order.

“Although the existing 2020 quota level is sufficient to meet current needs, DEA is acting proactively to ensure that — should the public health emergency become more acute — there is sufficient quota for these important drugs.”

Shortages Began Before Coronavirus

The DEA began aggressively cutting the supply of opioids in 2016 during the Obama administration. The trend has accelerated under President Trump, who pledged to reduce the supply of opioids by a third by 2021.

As recently as last December, the agency reduced 2020 production quotas for hydrocodone by 19 percent and oxycodone by 9 percent. The supply of hydromorphone, oxymorphone and fentanyl was also cut.

Some health officials warned months ago – before the coronavirus outbreak -- that the cuts went too far.

“Some of these medicines, injectable fentanyl and hydromorphone specifically, have been subject to recent and frequent shortages, hindering the ability of doctors and hospitals to conduct critical surgeries and essential patient care,” Corey Brown, Executive Director of Government Affairs for Sanford Health, which operates 44 hospitals in the Midwest, warned in an October 14 letter to the DEA.

“There remains a legitimate need to assure that patients needing surgery and those with short-term or chronic pain in hospitals (or hospice) have monitored access to pain management medications. We are concerned that additional reductions in quotas of these vital medicines may further impact the ability of medical professionals across the country to provide needed care and comfort to patients in a hospital or hospice setting.”  

Last week the DEA issued an order allowing drug manufacturers to increase their inventory of Schedule II controlled substances. But no increase in the production quota was made at the time. A senior DEA official told Reuters the quotas were “completely sufficient” to meet high demand.

The agency changed course after receiving a joint letter from the American Medical Association, American Society of Anesthesiologists, Association for Clinical Oncology and the American Society of Health-System Pharmacists warning that injectable drug shortages were affecting the care of coronavirus patients.  

“Injectable opioid medications such as these are vital for sedation, pain management, and interventional procedures. While oral dosage forms may be available, these are not clinically indicated for ventilation,” the letter said. “Without sufficient IV opioid supply, patients will suffer.”

Once the coronavirus emergency ends, DEA said it would “reevaluate demand and adjust APQ levels as needed.”

DEA: Fentanyl 'Primary Driver' of Overdose Crisis

By Pat Anson, PNN Editor

The U.S. Drug Enforcement Administration has released the 2019 National Drug Threat Assessment, a comprehensive report that outlines the threats posed to the nation by drug traffickers and the abuse of illicit drugs.

Not surprisingly, the annual report found that illicit fentanyl is the “primary driver” behind the overdose crisis, with fentanyl and its analogs involved in more overdose deaths than any other illicit drug. Fentanyl is a synthethic opioid 50 to 100 times more potent than morphine. The drug is prescribed legally to treat severe pain, but illicit versions of fentanyl have flooded the black market.

Of growing concern to the DEA is the appearance of illegal pill press operations in the U.S. that are manufacturing millions of counterfeit painkillers and other medications, using fentanyl powder smuggled in from China and Mexico.

“Fentanyl will remain a serious threat to the United States as record numbers of individuals suffer fatal overdoses from illicit fentanyl sourced to foreign clandestine production,” the report warns.

“Clandestine fentanyl pill pressing operations will likely increase as DTOs (drug trafficking organizations) seek to appeal to the large pill abuser population in the United States, with counterfeit fentanyl-containing pills continuing to be associated with clusters of overdoses and deaths due to inconsistent mixing and often unexpectedly high potency.”

With China cracking down on illicit fentanyl laboratories, the DEA expects the primary source of fentanyl production to shift to Mexico and India.  

Fewest Prescription Opioids Since 2006

One bright spot in the DEA report is the continuing decline in overdoses involving prescription opioids. As PNN reported, overdose deaths involving natural and semisynthetic opioids, which include painkillers such as oxycodone and hydrocodone, were 3.8% lower in 2018 than in 2017.   

The DEA said the supply of prescription opioids is now at its lowest level since 2006. DEA production quotas for hydrocodone and oxycodone have been cut nearly in half since 2016, with further cuts proposed for 2020.

But while the retail supply of opioid medication has fallen dramatically, the diversion of opioids and other controlled drugs by medical professionals and wholesale distributors – so-called “lost in transit” diversion – has soared. There were 18,604 lost in transit reports filed in 2018, nearly six times the number reported in 2010.

“It is unclear if these dosage units are being diverted, destroyed, or truly lost. Although representative of only a small number of DEA registrants, diversion by physicians, nurses, and other medical professionals and their staff remains a threat to communities across the United States,” the report warns.

The DEA predicts “a steady decrease” in the supply of opioids over the next several years and that prescription drug abusers “may shift to abusing heroin, illicitly produced synthetic opioids, and methamphetamine to obtain similar effects, which may further increase overdose deaths through at least 2020.”

The DEA said the threat posed by psychostimulants such as methamphetamine and cocaine is “worsening and becoming more widespread.” While most cocaine users prefer to snort or inject the drugs, law enforcement agencies are starting to find cocaine in tablet or pill form.

“Whether these instances are harbingers of a new trend, an experiment, or simply the result of accidental contamination within poly-drug operations remains to be seen. Tableting and capsulizing cocaine may allow traffickers to capitalize on the considerably larger CPD user market with a different version of cocaine, further maximizing profits,” the DEA said.

Finally, while the DEA officially considers the herbal supplement kratom a “drug of concern” and once tried to ban it, there is once again no mention of kratom in its annual drug threat assessment.

DEA Seeks to Cut Inventories of Opioid Medication

By Pat Anson, PNN Editor

The U.S. Drug Enforcement Administration has announced plans to significantly reduce inventories of opioid pain medication and other controlled substances that drug manufacturers are allowed to maintain. The inventory reductions are in addition to cuts in the production of opioids that the DEA is seeking in 2020.

The proposed regulations, published this week in the Federal Register, would limit “excess quantities of medications” being stored in inventory that might be vulnerable to diversion. Other rule changes would tighten DEA oversight of the manufacturing and distribution of controlled substances.

Under current regulations, drug companies are allowed to keep inventories on up to 50% of their annual sales quota for Schedule I and II controlled substances. That would be reduced to 30% under the proposed rules.

“Practically speaking, this equates to a reduction from half of a year's sales supply allowed to be held as inventory to nearly four months,” the DEA said.

The agency said the smaller drug inventory “is not expected to increase the likelihood of drug shortages,” because more manufacturers are available to increase production if shortages develop.

“The DEA believes a reduction of inventory allowance to 30%, with flexibility to produce up to 45% at any given point in a year, would have minimal impact on registrants while continuing to provide adequate inventory for registrants to respond to fluctuations in demand in pharmaceutical markets,” the agency said.

Last year the DEA allowed drug manufacturers to increase the production of injectable opioids after shortages developed at U.S. hospitals. The shortages became so acute that some hospitals were forced to use acetaminophen and muscle relaxants to treat surgery and trauma pain.

The FDA still has morphine, hydromorphone and fentanyl solutions on its list of drug shortages and there are anecdotal reports of hospitals continuing to ration injectable opioids. 

‘You Are Hurting Pain Patients’

The public has 60 days to comment on the DEA’s inventory proposal. The comments posted so far are mostly from pain patients critical of previous actions by the DEA.

“Why, why, why do you all keep taking meds from people? You are hurting the pain patients who need this medication. Start taking the drugs off the streets not from our doctors,” wrote Christy Ashford.

“The DEA has waged a war against the sickest and weakest members of American society,” wrote Kirsten Klang. “They know that almost all of the fatalities have to do with the integration of counterfeit fentanyl than any other chemical. Yet, the DEA clamps down where it's easy to do so... even if it's wrong... just because it's easy!”

“I would like to know why the DEA thinks it needs more power over the United States citizens. I mean really, don’t they think that they have tormented enough doctors and their patients through this so-called opioid crisis?” wrote Sheryl Cox. “They say that they have no control over the prescriptions that our doctors give us, and that is an outright lie. They do control our doctors by arresting them and prosecuting them needlessly, sending them to prison, and most do not deserve this kind of treatment and abuse.”

The DEA began cutting the supply of opioid medication in 2016 during the Obama administration. The trend has accelerated under President Trump, who pledged to reduce the supply of opioids by a third.

Last month, the DEA proposed further cuts in the supply of hydrocodone, oxycodone and three other opioid painkillers classified as Schedule II controlled substances. If approved, the 2020 production quotas would amount to a 60% decrease in the supply of hydrocodone and a 48% percent cut in the supply of oxycodone since 2016.

Cuts in the supply of prescription opioids have coincided with a sharp increase in overdoses from counterfeit medication. In recent months, hundreds of people have died after taking “Mexican Oxy” – counterfeit oxycodone pills made with illicit fentanyl – which are being trafficked in the U.S. from coast to coast.

Report: DEA ‘Slow to Respond’ to Opioid Crisis

By Pat Anson, PNN Editor

DEA investigators should get easier access to prescription drug databases and electronic prescribing should be required for all opioids and other controlled substances, according to a new report from the Justice Department’s Office of Inspector General (OIG).

The 77-page report is sharply critical of the Drug Enforcement Administration for its slow response to the opioid crisis and said the agency was “ill-equipped” to monitor suspicious orders and prevent diversion of prescription opioids.

“We found that DEA was slow to respond to the significant increase in the use and diversion of opioids since 2000. We also found that DEA did not use its available resources, including its data systems and strongest administrative enforcement tools, to detect and regulate diversion effectively. Further, we found that DEA policies and regulations did not adequately hold registrants accountable or prevent the diversion of pharmaceutical opioids,” the report found.

The OIG report focused exclusively on prescription opioids and did not evaluate the significant role that illicit fentanyl, heroin and other street drugs play in the opioid crisis. About two-thirds of opioid overdoses involve illicit drugs.

The report also contains some factual errors, such as the misleading but often repeated claim that “nearly 80 percent of people who began abusing illicit opioids during the 2000s started by abusing a prescription opioid.”

Less than one percent of legally prescribed opioids are diverted, but the report claims the “pervasive nature of prescription fraud” is so rampant that paper prescriptions for opioids should be prohibited. Instead, electronic prescribing should be mandated nationwide to prevent fraud and allow for better tracking of opioid prescriptions.

‘Puzzling’ Restrictions on Opioid Databases

The report also calls for greater law enforcement access to state run prescription drug monitoring programs (PDMPs). To protect patient privacy, several states require a subpoena or search warrant before giving DEA investigators access to their databases. The report calls the requirement “puzzling” and said it creates “significant challenges” for DEA investigators “who should be able to receive PDMP data and information.”

“We believe that the Department and DEA should continue to work with states to reach agreements that will enable DEA to have timely access to PDMP prescription data as needed… while also ensuring adequate protections for the important healthcare privacy interests of patients,” the report said.

Other recommendations from the report:

• DEA should develop a national prescription opioid enforcement strategy

• Require criminal background checks for all new prescribers and registrants

• Re-establish a nationwide early warning network to identify emerging trends in drug abuse   

• Expand DOJ opioid fraud units to additional U.S. Attorney’s Offices

In its response to the OIG, the DEA said the report “rightly identifies areas of improvement,” but said the agency has taken a number of steps to reduce the supply and diversion of prescription opioids.

The DEA said “only a minute fraction” of the more than 1.8 million registrants are involved in illegal activity. The agency said it had revoked about 900 registrations annually over the past eight years and reduced the supply of prescription opioids by 45 percent since 2017. Additional cuts in the opioid supply are proposed for 2020.

DEA Proposes More Cuts in Rx Opioids

By Pat Anson, PNN Editor

For the fourth consecutive year, the U.S. Drug Enforcement Administration is proposing steep cuts in the supply of hydrocodone, oxycodone and three other opioid painkillers classified as Schedule II controlled substances.

In a notice published today in the Federal Register, the DEA proposes to reduce production quotas for hydrocodone by 19 percent and oxycodone by 9 percent in 2020. The supply of hydromorphone, oxymorphone, and fentanyl would also be cut.

“The aggregate production quota set by DEA each calendar year ensures that patients have the medicines they need while also reducing excess production of controlled prescription drugs that can be diverted and misused,” acting DEA Administrator Uttam Dhillon said in a statement.

“DEA takes seriously its obligations to both protect the public from illicit drug trafficking and ensure adequate supplies to meet the legitimate needs of patients and researchers for these substances.”

In setting annual production quotas for controlled substances, DEA considers various factors such as medical need, estimates of retail consumption based on prescriptions, and forecasts from opioid manufacturers. Added to the mix this year is diversion.

The five opioids being cut are subject to special scrutiny under the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, known as the SUPPORT Act, which was signed into law by President Trump on October 24, 2018. The law requires DEA to estimate the amount of diversion of the five opioids and “make appropriate quota reductions.”

The agency estimated that 57 kilograms – about 125 pounds – of oxycodone were diverted or stolen in 2018, along with 24 kilograms (53 pounds) of hydrocodone. There was diversion of relatively small amounts of fentanyl, hydromorphone and oxymorphone last year.   

Cuts Began in 2016

The DEA first began cutting the supply of opioids in 2016 during the Obama administration and the trend has accelerated under President Trump, who pledged to reduce the supply of opioids by a third by 2021.

If approved, the 2020 production quotas would amount to a 60 percent decrease in the supply of hydrocodone since 2016 and a 48 percent cut in the supply of oxycodone.

While overdoses involving prescription opioids have been declining, they’ve been offset by a growing number of deaths attributed to illicit fentanyl, heroin and other street drugs. “Mexican Oxy” – counterfeit oxycodone pills laced with fentanyl – are being trafficked throughout the United States and are blamed for overdoses from New York City to San Diego.

In addition to the five opioids, the DEA is setting production quotas on more than 250 Schedule I and II controlled substances. The agency is proposing to increase the amount of marijuana that can be produced for research by almost a third, from 2,450 kilograms in 2019 to 3,200 kilograms -- almost triple what it was in 2018. The increase reflects growing interest in marijuana research.

Public comments on the DEA proposal will be accepted until October 10. To make a comment online, click here. The agency will publish another notice later in the year on its final decision and begin informing drug manufacturers of their quota allotment.

Is the DEA Overreaching Its Authority?

By Lynn Webster, MD, PNN Columnist 

The U.S. Department of Justice (DOJ) does not have the legal authority to determine which health care activities constitute a “legitimate medical purpose.” However, an increasing number of prescribers have been subjected to DOJ criminal investigations that operate under an expanded interpretation of federal law.

In 1970, Congress passed and President Nixon signed into law the Controlled Substances Act (CSA). In its broadest sense, the CSA regulates every aspect of controlled substances, from production to delivery, distribution, prescribing, possession and use. The CSA’s impact is far-reaching, touching many different sectors of our society, including healthcare, pharmaceuticals, law enforcement, politics, and state and federal judiciaries.

According to the CSA, a prescription for a controlled substance “must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” This statutory language is at the root of the issue. But who decides what is a legitimate medical purpose?

The Drug Enforcement Administration (DEA) is the branch of the DOJ that is tasked with enforcing the controlled substances laws and regulations of the United States.

In the context of trying to address the opioid crisis, the DEA has taken a proactive approach in determining which medical practices have a legitimate medical purpose and which do not. This hands-on approach is in direct contravention with the CSA. 

The DEA is effectively preempting state law as it relates to the regulation of controlled substances. In Gonzales v. Oregon, the U.S. Supreme Court ruled in 2006 that the authority to determine a legitimate medical purpose rests with state governments.

This means it is state lawmakers, not federal officials, who should regulate the practice of medicine. Medical boards are established by the authority of each state to protect the health, safety and welfare of patients through proper licensing and regulation of physicians and other practitioners.

If a doctor engages in an obviously nefarious activity, such as selling or trading prescriptions for sex or money, then that doctor is not in any way prescribing for a legitimate or legal medical purpose under the CSA. Remedies for this conduct would be within the authority of the DOJ, as well as state regulators.

The key phrases -- "legitimate medical purpose" and "in the usual course of a professional practice" -- are not defined in the CSA. This omission, unfortunately, has invited conjecture about the meaning of the phrases in recent years. The only way the phrase "legitimate medical purpose" would have any legal meaning would be if the concept of an "illegitimate medical purpose" were defined by the CSA -- and it is not.

Moreover, the words "legitimate" and "medical" are redundant. The practice of medicine is inherently legitimate, according to the CSA. The phrase "legitimate medical purpose" can be reduced to "medical purpose" without changing its meaning.

Any practice that is medical is legitimate and should be deemed consistent with the CSA regulation. The CSA, in other words, precludes the possibility that doctors who prescribe high doses of opioids have behaved criminally based only on the level of doses they prescribe.

Standard of Care

The DOJ is now using deviation from the “standard of care” to determine whether or not practitioners have a legitimate medical purpose to prescribe opioids. A standard of care is generally considered the customary or usual practice of the average physician.

In an attempt to address the opioid problem, the DOJ has hired medical experts who claim that any deviation from standard of care amounts to practicing without a legitimate medical purpose. In some instances, the government's experts have even used the CDC opioid guideline’s dose recommendation as a test of whether or not the prescribing of opioids has a legitimate medical purpose.

Using deviations from "standard of care" as criteria for compliance with the CSA is in direct conflict with the Supreme Court ruling in Gonzalez v Oregon, which found that the Attorney General “is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.”

Even substandard treatment by providers is not necessarily criminal behavior and should rarely involve prosecution by the DOJ. This is supported by a 1983 statement in a DEA newsletter that declares acts of prescribing or dispensing controlled substances lawful when they are done within the course of a provider’s professional practice. Even if a physician's behavior reflects the grossest form of medical misconduct or negligence, it is nevertheless legal.

The information provided in the newsletter isn't an opinion. It's the law.

Unquestionably, prescribers should be held to a high standard of care at all times. However, it is the responsibility of state medical boards to hold them to that standard. It is not the DOJ's role to determine the quality or boundaries of the practice of medicine.

 Lynn R. Webster, MD, is a vice president of scientific affairs for PRA Health Sciences and consults with the pharmaceutical industry. He is a former president of the American Academy of Pain Medicine and the author of “The Painful Truth.”

You can find Lynn on Twitter: @LynnRWebsterMD. 

The information in this column should not be considered as professional medical advice, diagnosis or treatment. It is for informational purposes only and represents the author’s opinions alone. It does not inherently express or reflect the views, opinions and/or positions of Pain News Network.

Hydrocodone Rescheduling Fueled Online Drug Sales

By Pat Anson, Editor

Hydrocodone was once the most widely prescribed and one of the most abused drugs in the United States. Over 135 million prescriptions were filled in 2012 for hydrocodone combination products such as Vicodin, Lortab and Norco.

Then in 2014 the Drug Enforcement Administration rescheduled the opioid painkiller from a Schedule III controlled substance to the more restrictive category of Schedule II. The move was intended to reduce the prescribing of hydrocodone – and it quickly had the desired effect.  By 2017, only 81 million prescriptions for hydrocodone were filled.  

But while legal prescriptions for hydrocodone have gone down, the DEA’s 2014 rescheduling may have fueled a surge in illegal online sales of hydrocodone and other opioids, according to a new study in the British Medical Journal.    

“The scheduling change in hydrocodone combination products coincided with a statistically significant, sustained increase in illicit trading of opioids through online US cryptomarkets. These changes were not observed for other drug groups or in other countries,” wrote lead author Jack Cunliffe, PhD, a lecturer in data analysis and criminology at the University of Kent.

Cunliffe and his colleagues studied these online cryptomarkets – also known as the “dark web” – by using web crawling software that scans the internet looking for websites dedicated to online sales of illicit drugs. From October 2013 to July 2016, they found that sales of prescription opioids on the dark web nearly doubled, from 6.7% to 13.7% of all online drug sales.  

“Our results are consistent with the possibility that the schedule change might have directly contributed to the changes we observed in the supply of illicit opioids,” said Cunliffe. “One explanation is that cryptomarket vendors perceived an increase in demand and responded by placing more listings for prescription opioids and thereby increasing supply.”

‘Iron Law of Prohibition’

The increase in supply and demand wasn’t just for hydrocodone. The researchers also noted a growing number of online listings for more potent opioids, such as oxycodone and fentanyl. They attribute that to the “iron law of prohibition” – banning or reducing the supply of one drug encourages users to seek more potent drugs from new sources.

“We found that users were first buying oxycodone followed by fentanyl. Drug users adapt to their changing environment and are able to source drugs from new distribution channels if needed, even if that means by illegal means. In a context of high demand, supply side interventions are therefore likely to push opioid users towards illicit supplies, which may increase the harms associated with their drug use and make monitoring more difficult,” Cunliffe wrote.

As PNN has reported, business is booming for illegal online pharmacies. As many as 35,000 are in operation worldwide and about 20 new ones are launched every day. About half are selling counterfeit painkillers and other medications. Overdoses involving fentanyl and other synthetic opioids – most of them purchased on the black market – have also increased and now outnumber those linked to prescription opioids.

"The study’s findings are troubling but not surprising. As you’ve well reported, there are often unexpected and negative externalities resulting from well-intended anti-addiction interventions," Libby Baney, Principal, Faegre Baker Daniels Consulting and senior advisor to Alliance for Safe Online Pharmacies said in an email to PNN. 

"What’s worse still, when buying medicine online - whether from dark or surface web sellers - it is virtually impossible for the consumer to know if the product is what it claims (in this case, an opioid like oxycodone) or is a dangerous counterfeit laced with a deadly dose of elephant tranquilizer or poison. As too many victims have shown, even one pill can kill."

A recent study at the University of Texas Medical Branch also found an association between hydrocodone's rescheduling and increased opioid abuse.  Researchers found that hydrocodone prescriptions for Medicare patients declined after rescheduling, but opioid-related hospitalizations increased significantly for elderly patients who did not have a prescription for opioids.

Critics Say DEA Plan Could Worsen Opioid Shortages

By Pat Anson, Editor

Pain sufferers and patient advocates are overwhelming opposed to plans by the U.S. Drug Enforcement Administration to further restrict the supply of opioid medication to punish drug makers that allow too many of their painkillers to be diverted and abused. Health organizations also caution that the proposal could worsen an acute shortage of pain medication in the nation’s hospitals.

Over 1,500 people left public comments in the Federal Register on the DEA’s plan to change the rules governing opioid production quotas. Under the proposal, the DEA could arbitrarily reduce the amount of opioids a company can make -- even if it has no direct role in the diversion or abuse.

"It’s a common sense idea: the more a drug is diverted, the more its production should be limited," said Attorney General Jeff Sessions. 

But critics say the plan will not prevent opioid abuse and will likely harm patients.

“The DEA has no business deciding how much valid medicine can be produced. The doctors prescribing the medicine should dictate the amount. The DEA is going to cause a crisis,” wrote Tina Liles.

“Reducing opiate medication has done nothing to help the rate of overdose deaths in this country because opioid prescriptions are not the issue in this country it is illicit fentanyl and heroin,” said Nicole Garage.

“Limiting access to the only medication that helps to control severe, intractable pain will not stop the crisis; those who abuse or sell drugs illegally have not stopped due to current quotas and will not stop with any new quota reductions,” said James Loranc.

“The logic (behind) this DEA proposal is completely untested, unproven, and unsupportable. The shortages being seen in hospitals and by pain patients will only get worse with further DEA cutbacks, leading to more mistakes, waste, and higher costs, not to mention additional pain,” said Valerie Padgett Hawk, Director of a Coalition of 50 State Pain Advocacy Groups.  

Hospitals Rationing Opioids

The shortages mainly involve injectable opioids such as morphine, hydromorphone and fentanyl, which are used to treat acute pain in patients recovering from surgery or trauma. Hospitals have been forced to ration opioids or use other pain medications that are not as effective.

“With limited availability of some opioids, operations may have to be postponed or cancelled.  In some cases, this could prove life‐threatening to the patient,” wrote Janis Orlowski, MD, Chief Health Care Officer for the Association of American Medical Colleges. “We urge the DEA to remember that opioids are also an important part of treatment regimens for controlling acute and chronic pain in a variety of patients – including trauma, postoperative and patients with advanced stage cancer – and any limits on quotas should not negatively impact access for patients that have a legitimate and critical need for these medications.”  

“Please, I beg you, don't do this. My dear friend Sarah takes painkillers for her rheumatoid arthritis. Even with the medication it's terrible; without it, I have no doubt she'll kill herself. Her mental health is already fragile,” wrote Kelsey Hazzard. “This regulation will destroy her.”  

“For the love of God let the doctors and pharmacists handle prescribing and filling prescriptions and allow the patients and doctors to worry about how much opioid pain medication they need to take. This is none of the DEA’s concern!” wrote Brandon Tull, a disabled police officer who shared the tragic story of Jennifer Adams, a Montana pain patient who recently committed suicide.

“That suicide will probably be the first in a long line if you continue this attack upon innocent chronic pain sufferers!”

The public comment period on the DEA proposal ended May 4th. The public was given only 15 days to comment in the Federal Register on the rule change. Public comment periods are usually between 30 and 60 days long, with some taking up to 180 days. Agencies are allowed to use shorter comment periods "when that can be justified."

"This shortened period for public comment is necessary as an element in addressing the largest drug crisis in the nation's history," the DEA said.

The DEA has already made substantial cuts in opioid production quotas, reducing them by 25% in 2017, followed by a 20% cut in 2018. This year’s cuts were ordered despite warnings from drug makers that reduced supplies of opioids “were insufficient to provide for the estimated medical, scientific, research and industrial needs of the United States.”

Under the proposed rules, the DEA would be required to consult with states, Food and Drug Administration, Centers for Disease Control and Prevention, and the Department of Health and Human Services before setting opioid quotas. The rule change was triggered by a lawsuit filed against the DEA by West Virginia, alleging that the current quota system “unlawfully conflates market demand for dangerous narcotics” with the legitimate needs of pain patients.    

Although overdose deaths from heroin, illicit fentanyl and other street drugs now surpass those from pain medication, the DEA claims prescription opioids are gateway drugs to long-term substance abuse.

“(Opioid) users may be initiated into a life of substance abuse and dependency after first obtaining these drugs from their health care providers or without cost from the family medicine cabinet or from friends. Once ensnared, dependency on potent and dangerous street drugs may ensue,” the DEA said.

According to the National Institutes of Health (NIH), only about 5 percent of patients taking opioids as directed for a year end up with an addiction problem. And the DEA itself estimates that less than 1% of legally prescribed opioids are diverted.