The Unaccountable DEA

The Unaccountable DEA

Senators Urge DEA to Lower Opioid Quotas to Combat Prescription Drug Abuse

Between 1993 and 2015, the DEA allowed production of oxycodone to increase 39-fold, hydrocodone to increase 12-fold, hydromorphone to increase 23-fold, and fentanyl to increase 25-fold. As a result, the number of opioid pain relievers dispensed in the United States has skyrocketed over the last two decades - from 76 million prescriptions in 1991 to more than 245 million prescriptions in 2014. The increase in opioid-related overdose deaths has mirrored the dramatic rise in opioid prescribing, with more than 33,000 deaths in 2015.

The DEA accountable? A pipe Dream? Oxymoronic? In the spring of 2017 I became aware of the Milwaukee City-County Heroin, Opioid and Cocaine Task Force and began attending their meetings and taking advantage of the public comments periods to provide my 2-cents worth. All of the documents submitted for consideration by the task force are linked here.

On July 21, 2017 Kathy Federico, DEA Diversion Control Division Supervisor, provided some startling (to me anyway) testimony regarding doctors that were illegally prescribing opioids and failing to record their activities in the Prescription Drug Monitoring Program's (PDMP) database (physicians are supposed to check the records of their patients before writing any prescriptions and also record the prescriptions they write for them). The 20 minute clip from the meeting linked below shows the following people being interviewed by the Task Force: Captain Alex Ramirez, Narcotics Division HITA (High Intensity Drug Trafficking Area); Lieutenant Shaun Doyne, Narcotics Division HITA; and Kathy Federico, DEA Diversion Control Division Supervisor.

This is what she said that got my attention:

...And you did talk about some of the administrative proceedings that we can take against our physicians that are over prescribing and not prescribing in a legitimate manner, that puts oxycodone and hydrocodone on the street. And we do have a lot of those. And I mean the other issue we have is, is having ahh - prosecutions - of physicians that are pumping pills on the street without people having legitimate medical problems. And that's an issue we address all the time because nobody wants to put a doctor behind - in jail.

…You talk about the PDMP and having this big impact. The PDMP has been out there for a long time and we had some impact initially when it started. I don't know exactly what issue you want me to address but some of the PDMP issues, is, yes, it's very true that the doctors is going to have to check, it's going to be mandatory, but there are no consequences if the doctors do not check. And we have a lot of the doctors that are not looking at the PDMP.

One would think that the Task Force would have a few follow up questions for Kathy Federico like:

• What administrative proceedings were initiated by the DEA against "our physicians that are over prescribing and not prescribing in a legitimate manner"? What was the DEA doing about it back in July 2017 and have their policies and procedures changed since then? How many physicians were/are involved? How frequently were/are they prescribing illegally and in what quantities? Kathy Federico said, "and we do have a lot of those". Has this problem been addressed since then? How many is "a lot"?
• According to the DEA's Criminal Cases Against Doctors website
  • There were only 2 cases in the last 4 years reported in Wisconsin. Why are there so few criminal prosecutions of physicians given what Kathy Federico testified to?
• Wisconsin Act 266 strengthened the PDMP (Prescription Drug Monitoring Program) and, even prior to that update, the legislation had provided "consequences" for physicians by permitting the Controlled Substances Board (CSB) to make referrals based on its evaluation of the practitioner's actions.
  • (f) Permit the board to refer to the appropriate licensing or regulatory board for discipline a pharmacist, pharmacy, or practitioner that fails to comply with rules promulgated under this subsection, including by failure to generate a record that is required by the program.
  • (fm) Permit the board to refer a pharmacist, pharmacy, or practitioner to the appropriate law enforcement agency for investigation and possible prosecution when the board has determined that a criminal violation may have occurred.
  • So why is Kathy Federico saying there are "no consequences" if physicians do not comply with its requirements?
• Kathy Federico said: "And we have a lot of the doctors that are not looking at the PDMP". What was/is the DEA doing about this? Couldn't the DEA at least report these physicians to the Controlled Substances Board? Has this problem been addressed?
• How will the PDMP's referral system, which depends on physicians accessing the system and reporting activity, ever become effective if physicians ignore its requirements? What is the DEA's role or responsibility in enforcing the requirements of the PDMP?

But they have been silent - as if physician's role in the prescription drug diversion supply chain was not important. Since then, in addition to trying to get the Task Force to consider harm reduction in their goals and strategies, I have been attempting to get their attention, and that of the Milwaukee Mayor, Common Council, County Executive and County Board (the sponsors of the Task Force), to what DEA Supervisor Federico testified to. I have made some progress.

In late December 2017 I sent a letter to the Mayor, and all members of the Common Council and County Board alerting them to Kathy Federico's testimony and at the January 19, 2018 meeting of the Task Force, I provided the following comments:

I followed this up with 2 more letters to the Mayor, Common Council, County Executive and County Board discussing the problems with the Task Force and the relevance of Kathy Federico's testimony. I got a phone message reply from my Alderman and had a good conversation with one of the County Board member's staff - in general, a pretty tepid response.

To push the issue forward I realized I needed to focus on the Milwaukee Common Council's Public Safety and Health Committee, which "controls" the File related to the Task Force. The Task Force was supposed to make quarterly reports to the Common Council and they had not done so for 9 months. Per my request, the chairman of the committee, Alderman Robert Donovan, did schedule representatives of the Task Force to provide an update to the Public Safety and Health Committee, which they did on March 8, 2018. The relevant portion of the meeting is presented in the video below.

Alderman Donovan: Alderman Borkowski would move that the information that we received by Mr. Paul Mozina be included in the record. And there are a series of questions that I will forward to you and perhaps you can respond to that individual. Ok? I've got two pages of questions here and I'm not going to go into all of them (see article 163 attached to File # 161554).

But I will ask -- one overriding concern apparently is -- lack of control, I guess, of physicians that may be prescribing opioids unnecessarily. What is your take on that? What, if anything, or influence does the Task Force have? I know that of course there's a medical review board, and so on, are they engaged, so on and so forth, if you could discuss that?

Alderman Murphy: Sure. It's a very appropriate question. We've had representatives from the drug enforcement agency come to the committee and testify about what efforts they've embarked upon in terms of going after quote-unquote "pill doctors". The gentleman that you referenced the questions asked a very legitimate question. So, I do plan on following up with the DEA agent, Bob Bell about the prosecution of individuals who've been prescribing pain medication far in excess of what would be legally required. So, I will be getting a follow up hopefully from Mr. Bell on that issue.

It, you know, as was communicated to us from the DEA, that they are aggressive in prosecution in those areas and that they feel they've done a good job trying to curtail those doctors who are abusing that privilege of prescribing medication. But there may be some valid concerns that were raised, that I'll follow up with Mr. Bell. And I'll make sure that this committee and the gentleman in question get that answer after I get a response from the DEA

I followed this up with another round of letters to the Mayor, Common Council, County Executive and County Board to raise their awareness of the importance of getting an on the record response from Robert Bell, Assistant DEA Special Agent in Charge, to the testimony given by Kathy Federico. Alderman Khalif Rainey, the person who invited Kathy Federico to testify back on July 21, 2017, said he was going to "reach out to" Alderman Michael Murphy and, hopefully, he will make this happen.

I have been advertising this issue with many press releases to all the major Milwaukee media outlets and, so far, they have completely ignored it. Nevertheless, I am going to continue to do what I can to shine a light on it. For me it's fundamentally an issue of justice: the powers that be insist that they have the "right" to create laws like the Controlled Substance Act and enforce them with violence and coercion. I don't agree with their premise -- that this is a legitimate authority of government. This injustice is compounded with hypocrisy. While the State has no problem bringing down the full force of the law on minor players distributing drugs on the street, who often do not have the means of putting up a defense, it is neglecting to enforce the law against physicians, who have the means and will to contest the charges in court - an expensive proposition for the State.