DEA vs. ADA: Pharmacists and the rock or the hard place

Steve AriensI read a quote a few decades ago that went something like this: “Our society has made 10-15 million laws, rules, and regulations - to enforce the TEN COMMANDMENTS.”     

Here’s something else I remember: In pharmacy school we were taught that when federal and state laws conflict, you have to follow the one that is the most stringent.

So what do you do when two federal laws are in conflict - and there is no clear determination of which is more stringent?

The back story

Recently, the U.S. Department of Justice (DOJ) came to a settlement with Rite Aid, fining it $15,000 after a Rite Aid pharmacist refused to give a flu shot to an HIV-positive patient.

It appears that being HIV-positive is considered a handicap; therefore, said DOJ, this patient’s civil rights had been violated under the Americans with Disability Act (ADA).

Over the last decade, some in our profession have gone back and forth over a pharmacist’s right to refuse to fill a prescription because of the pharmacist’s personal beliefs. Most of the time the issues raised had to do with birth-control medications and Plan B. Bureaucrats have come down on both sides of this issue.    

Now here’s a case in which the patient involved is covered under the ADA. So, in ADA cases, does the pharmacist’s right to decline to provide a legally prescribed medication go out the window?

Catch 22

There’s more. Consider this “Catch-22." With the Harrison Narcotics Tax Act of 1914, our society officially declared a “War on Drugs” that was reinforced in 1968 with the formation of the BNDD (Bureau of Narcotics and Dangerous Drugs), which further evolved in 1973 into today’s Drug Enforcement Administration (DEA). [For details, see “The hundred year’s war,” Drug Topics, September 15, 2013.]

It is no big secret that the DEA has fined Cardinal Health, CVS, and Walgreens for improper control of controlled meds. It is no big secret that the major wholesalers have completely cut off an unknown number of pharmacies - mostly independents - from access to controlled medications.

Rumors have been spreading that the DEA has imposed restrictions on wholesalers, limiting the amount of controlled meds that they can sell to pharmacies.

An article recently published on the website www.nationalpainreport.com included the following statement: “We’re not doctors. We’re regulators and enforcers of the law. If something is prescribed for a legitimate medical purpose, we’re certainly not going to get in the way,” said DEA spokesman Rusty Payne.”

The big question

There are millions of chronic pain patients in this country, many of whom are receiving Social Security or Medicare disability payments. That would make it tough to argue that they are not covered by the ADA.

What is a pharmacist to do when a legitimate chronic pain patient presents an unquestionably valid opiate prescription?

Do you remember the Pharmacist’s Oath that you took? The first line of that oath is: “I will consider the welfare of humanity and relief of suffering my primary concerns.”

Until this recent Rite Aid decision and fine were announced, to turn down a chronic pain patient with a legitimate opiate prescription - and most likely to throw that patient into withdrawal -would have meant that you were violating your ethics and your oath. Or did you have your fingers crossed when you took the oath? Maybe you decided to exchange your ethics for a paycheck?

Who gets clobbered?

Congress intentionally made the ADA very vague when it was passed in 1990. The intention was for the law to be defined in the court system, and its goals parallel those of The Civil Rights Act of 1964.

I suspect that trying to defend your actions with a company-mandated checklist of questions that you must answer in order to fill each prescription in “good faith” will not hold up. You are THE PHARMACIST. You are THE PROFESSIONAL. YOU could be the one who gets hit with the ADA violation.

Check your company’s policies and procedures manual. I suspect that in there, somewhere, it states that employees will not violate any rule/law. If you do violate any rule/law, you will be going against the company’s policies - and it will have no legal obligation to defend your actions or fund your self-defense.

When you deal with chronic pain patients, choose your adversary carefully. Which will it be? ADA or DEA?

Steve Ariens is a pharmacy advocate, blogger, and National Public Relations Director for The Pharmacy Alliance (www.thepharmacyalliance.com). E-mail him at steve@steveariens.com.