Senate Committee Seeks Improved Access to Controlled Meds for Long-Term Care and Hospice Patients; Drafts Legislation to Address Issue

By John A. Gilbert and Larry K. Houck –

Senate Special Committee on Aging Chairman Herb Kohl (D-WI) and Member Sheldon Whitehouse (D-RI) have sent a letter to U. S. Attorney General Eric Holder seeking improved access to needed pain and other medications for long-term care and hospice patients.  Their October 19, 2009 letter states current federal Controlled Substance Act (“CSA”) requirements lead to delays in patients receiving needed medication.  The letter notes that nurses in long-term care facilities and hospices often act as the agents of prescribing physicians by transcribing medication orders and transmitting them to pharmacies serving the facilities.  The letter observes, however, that the CSA does not allow pharmacies to dispense Schedule II controlled substances to patients based on such orders, instead requiring practitioners to sign hard copy prescriptions prior to dispensing, which leads to delays.  The letter observes that delays in timely access to needed medication can lead to unnecessary re-hospitalizations and “needless suffering.” 

The letter states that the Drug Enforcement Administration (“DEA”) has heard concerns from patient advocates for years that the CSA “is ill-suited to the unique needs of this patient population and the practice protocols of those is who provide their care.” 

Noting that the CSA and regulation provisions relevant to this issue remain unchanged since 1994 when DEA permitted long-term care prescriptions to be faxed, the Committee submitted draft legislation with the letter.  The draft legislation, cited as the “Long-Term Care Patients’ Access to Medically Necessary Controlled Substances Act of 2009,” would amend the CSA to allow nurses to act as the agent of the practitioner to enter medication orders on patient charts and for pharmacies to dispense controlled substances pursuant to those medication orders.  The draft legislation sets the conditions and restrictions for the nurses and for the medication orders and, according to the letter, “strikes the appropriate balance between the legitimate law enforcement interest in preventing diversion and maintaining adequate controls, and the urgent needs of frail long-term care patients to prompt access to medically necessary prescription medications.”

This has been an ongoing issue, particularly as it applies to DEA regulations involving emergency prescriptions.  DEA regulations provide that a Schedule II prescription may be “called in” only if the criteria for an emergency prescription is met.  DEA recently clarified these conditions which has still left many in the long term care and hospice industry unsatisfied.

The letter asks for review and comment within twenty days.  We will provide updates as they occur.