NJ BIZ August 22, 2005:
Preparing to Attack Prescription Fraud

from www.njbiz.com

George W. Bush gave a New Jersey lawmaker a shot in the arm this month: The president signed a law that gives grants to states that monitor the prescription of addictive drugs. Assemblyman Herb Conaway Jr. (D-Burlington) is sponsoring a bill to create just such a monitoring system. While it offers the promise of controlling illicit drug use, the bill also raises privacy concerns.

Conaway, a physician, says he decided a method for tracking prescriptions for narcotics and other habit-forming drugs was needed after dealing with a patient who turned out to be an addict. She repeatedly told him she had lost her pills and needed another prescription for the pain pill Percocet.

Conaway's suspicions increased when he could not get her records from previous doctors. Conaway's fears were borne out: His patient was addicted to the drug, a narcotic.

"I discovered after a call to the pharmacy that she had been involved with as many as 20 physicians across three counties who were all prescribing Percocet, 20 to 30 pills at a time," Conaway says.

Conaway's bill (A2797) would create a database to track all dispensed prescriptions of addictive drugs. On the watch list would be products such as Percocet, OxyContin, Ritalin, Valium and Xanax. Some of these products treat pain, others are used to treat problems as varied as anxiety, muscle spasms and attention deficit hyperactivity disorder.

Under the closely watched bill, which will be considered when legislators return from summer recess next month, pharmacists would report the filling of addictive prescriptions to the state Division of Consumer Affairs, the agency that licenses health care professionals. The information would be shared with physicians in cases of suspected abuses and to law enforcement in cases of criminal investigations.Just how doctors or the police would access this data remains to be worked out.

If approved, New Jersey would become the 22nd state to establish such a monitoring program. New York and Pennsylvania already have them, and proponents say this makes New Jersey even more susceptible to people who cross state borders to solicit and fill prescriptions either to satisfy a drug habit or to sell the drugs.

"There are patients that go from emergency room to emergency room in the state on a daily basis and get 10 or 12 different prescriptions," says Dr. William B. Felegi, vice chairman of emergency medicine at Morristown Memorial Hospital.

According to the Drug Abuse Warning Network, prescription medication abuse comprises almost one-third of drug abuse in the U.S. and is steadily rising. Statistics from the Center for Substance Abuse Prevention show that in 2000, 43% of the drug overdoses treated by emergency room doctors stemmed from misuse of prescription drugs.

"Unless we can identify who the abusers are, we will never be able to help people the way they need to be helped," Conaway said during an assembly committee meeting in January.

The bill's chances of passing improved on August 11 when the president signed a law, co-sponsored by U.S. Representative Frank Pallone Jr. (D-New Jersey), that offers grants to states for establishing or upgrading prescription-drug monitoring programs.

Identical state bills are in committee in the Assembly and Senate, and legislators will surely be pleased to hear they may be able to launch the program, expected to cost $550,000 in the first year, without a penny from the state budget.

"I come at this from the standpoint of a physician trying to make sure those who have pain get the pain medication they need without aiding and abetting those who have a drug-abuse problem," said Conaway, an internist.

But the proposal is a touchy one, with pharmacists, doctors and privacy-rights activists closely watching. Pharmacists have noted, for instance, that the bill gives doctors immunity from lawsuits for violating patients' privacy by reporting possible drug-seeking behavior. Pharmacists are not so protected.

"We would like to have the same immunity," says Heidi A. Stokes, director of government affairs for the Independent Pharmacy Alliance of America, which has 600 member pharmacies statewide. "[Pharmacists] cannot disclose patient info according to federal statutes," Stokes says. "If a consumer questions whether there was a bona fide investigation, they may target the pharmacy and ask why it disclosed information."

Some physicians, especially emergency room doctors who tend to prescribe a lot of pain medication, expressed relief that the bill was amended so the program is not used to identify over-prescribing doctors. "The No. 1 drug I give out is antibiotics. No. 2 is a controlled dangerous substance," says Bruce Bonanno, an emergency physician at Bayshore Hospital in Holmdel. "If you looked at me and profiled, you would think I was a nasty doctor and an [over-prescriber] of controlled dangerous substances. I'm not. It's just an environment that I work in. I would caution [legislators] to make sure that the state doesn't view this as a data source to profile physicians, because indeed that would hurt people such as myself."

Conaway says that law enforcement would not be able to abuse its access to personal prescription data. "In the bill, state, federal and municipal law enforcement officers must certify they are engaged in a bona fide investigation of a specific patient," Conaway says. "We are not talking about law enforcement going on a wild goose chase to look at [an individual's] data."

The bill calls for the Division of Consumer Affairs to review the collected data and on spotting a possible violation or "breach of professional standards," report it to law enforcement or professional licensing boards. Doctors and pharmacists would have access to "limited prescription information" related to current or prospective patients of theirs. It is not spelled out in the bill if police access to the data would require a warrant from a judge or simply probable cause.

What does seem clear is that doctors would not be the only ones able to report suspicious patients. Pharmacists would be able to report customers' suspicious prescription patterns, Conaway said. The assemblyman even cited a scenario where a complaint by a "man on the street" leads to law enforcement officers accessing the data.

The bill has supporters from the medical community, including the Medical Society of New Jersey. "It is a vital part of a physician's ethic to do no harm, whether knowingly or unknowingly," says Tim Martin, lobbyist for the medical society. "To allow an addicted patient to go down that road to personal destruction is indeed doing harm so we thank [Conaway] for pushing for this new tool that we can use together to help those who need it but are unwilling to seek help."

The existing programs in 21 states have been effective at preventing drug abuse within those states, says Pallone, whose federal legislation provides grants for states under the condition that they agree to share their data with each other. "There is nothing in place to prevent a drug abuser from Pennsylvania from crossing state lines into New Jersey and filling a prescription to avoid detection," Pallone said. "My legislation solves this problem by providing states with uniform formats that make it easier to share information across state lines. Now it's time for New Jersey to take advantage of this new federal law."