Daily Independent (Ashland, KY)

January 7, 2013

HB 1 needs some ‘tweaking,’ lawmakers say

By RONNIE ELLIS
CNHI News Service

FRANKFORT — Lawmakers are pleased a bill they passed last year has apparently reduced pain medication trafficking and abuse.

But they’re just as unhappy they’re hearing a lot of complaints from doctors, hospitals and patients about the unintended consequences the bill has had on legitimate users and prescribers of the drugs.

Caught in the middle is the Kentucky Board of Medical Licensure, which was directed to write regulations implementing the provisions of the bill written to put cash pain clinics out of business and crack down on prescribers more interested in profits than in medical care.

The KBML came under heavy criticism for failing to monitor over-prescribing by some of its members. But it quickly got on board with HB 1 and wrote emergency regulations to implement the bill and establish medical standards for prescribing the drugs.

But lawmakers immediately began hearing from patients who have legitimate medical need for the drugs who said their doctors would no longer prescribe the drugs or they faced prohibitive costs for repeated tests before they could receive pain medication.

Lawmakers declined at the end of the year to approve those regulations promulgated by KBML and others written by the Cabinet for Health and Family Services, directing both to amend them to address the concerns of doctors, emergency rooms, hospitals and patients.

On Monday the board and cabinet were back in front of the Administrative Review Committee.

KBML President Dr. Preston Nunnelley told the committee his group has been “walking a very narrow line: stop abuse but ensure people who need help get it.”

One of the problems involves making a report to the state’s electronic drug tracking system, KASPER, each time a drug is prescribed or administered. That’s fine for a physician prescribing a three-month supply, but hospitals routinely prescribe such drugs for surgery, cancer or trauma injury patients and they are often dispensed by different personnel at different times.

The amended regulation KBML offered Monday takes care of that problem and delays until July 1 a requirement that hospitals make a KASPER report on each prescription or patient. That gives time for KBML to work with lawmakers to address the problem by amending the statute passed last year.

But even that caused a problem Monday.

Some of the language in the amended regulation appeared to go beyond the language in statute and committee members hesitated to approve the regulation because of it.

Lloyd Vest, General Counsel for KBML, said the board understands but is working to make sure patients don’t suffer.

“The concern is if these definitions are not put into place, it will disrupt patient care,” Vest said. It also addresses fears by physicians they might face criminal liability if they prescribe the drugs, even in good faith, but somehow technically run afoul of the law.

Committee Co-Chairs Sen. Joe Bowen, R-Owensboro, and Rep. Johnny Bell, D-Glasgow, said they have heard plenty of complaints from institutions, doctors and patients.

Bell, a criminal defense attorney, said, “I know from what I do for a living that this legislation has reduced the flow of illegal narcotics dramatically.” That’s good, he said, but he doesn’t want to simultaneously make it more difficult for people with legitimate chronic pain to receive relief.

William Doll, attorney for the Kentucky Medical Association, said that’s a real concern. The problem, he said, is that drawing regulations to fit medical reality runs the risk of violating the law as it’s written.

“The closer you come to making something make sense in today’s medical practice, the more likely it is to be in opposition to HB 1,” Doll said. “All of this cries out for the need to look at reasonable changes in HB 1.”

Committee members agreed. They approved the regulation – and nine others implementing the new law – but as Rep. Bob Damron, D-Nicholasville, put it: “with the caveat (KBML) use the next 60 days” during the 2013 General Assembly to make changes in the statute to reflect what the newest set of regulations say.

Bowen and others urged Nunnelley and KBMLA “to find a sponsor” to make those changes.

The main sponsors of the legislation, House Speaker Greg Stumbo, D-Prestonsburg, House Judiciary Chairman Rep. John Tilley, D-Hopkinsville, and Republican Sen. Robert Stivers, R-Manchester, the likely new Senate President, have said the law needs “tweaking” in the session which begins Tuesday.

The basic tenets of the bill require pain clinics to be owned by physicians (some compliant but non-physician owned clinics – about eight of them – were grandfathered in by the law and can continue operating under the regulation of the cabinet); require all prescribers and dispensers of the drugs to register with the KASPER system; and for the KBML and state to monitor the prescribing practices of doctors and medical facilities.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.