Legislating Public Health and Medical Care

It is pretty tempting, if you are a legislator and don’t like something, to try to pass a law against it. You can always find a constituency to support you, because there are people who will support almost anything. If you are lucky enough you can find a well-off and powerful constituency, or set of advocacy organizations, and then you are more likely to be successful (ref: see almost all laws passed by the Congress). Health and medical care are no exceptions; bills and laws that impact on public health and even how providers interact with their patients are increasingly common.

Some laws are very good for the public health: banning smoking in public places; requiring cars to have seat belts, airbags, and other safety features; requiring vaccination against infectious disease for entry into school. But the plethora of regulations governing the funding of health care providers from Medicare and Medicaid, the kind of documentation that needs to be submitted, and the rules that need to be followed (generally termed, collectively “compliance”) is bewildering. Complying with all the rules put forth put forth by federal agencies (including different division of Health and Human Services, as well as the Department of Justice and the Department of Treasury) requires large providers to have full-time “compliance officers” and small ones to operate at their peril. Then add in state and local regulations. These regulations are often contradictory, so complying with one violates another. The blame is usually placed on the bureaucrats that write these regulations, but in fact many of these bureaucrats are quite aware of these contradictions, but have no option, because the laws that they have to write regulations to implement are often very prescriptive. Beware the Law of Unintended Consequences!

This law, never to my knowledge passed by any legislative body, has a major impact on those that are passed, and this impact is just as true in laws regulating public health and medical practice. These effects are most serious when the law in question is passed to address a political agenda rather than to improve health. A famous example is the “gag rule” implemented in the early GW Bush years that prevented providers receiving federal funds from discussing the option of abortion with their patients. (Overturning this rule was a major, and under-recognized, accomplishment of the early Obama administration.)  A more recent example is the law passed in Florida (and now, thankfully, blocked from implementation by a federal judge) that would prohibit physicians and other medical providers from discussing gun safety with their patients. Let me be clear: the limitation was not on gun possession or use, but on doctors and nurses and public health officials talking to people about the risks that guns in the home posed to their children and themselves and how to keep the guns that they had more safe to limit accidental discharge, injury and death.  Guess what organization pushed this law? If you said “the NRA”, you’re right, but it was a “gimme”. And of course it was signed by the governor, former “health care” magnate Rick Scott, who as CEO of Columbia/HCA led the company in paying huge fines for Medicare fraud.

Those are the easy ones to find fault with. But, just as with the “compliance” issues described above, efforts to impose “good” medical practice can be flawed. Vaccine safety and benefit is a big topic I will probably post a separate piece on (short answer: get them), but there are many others. One example is the bill introduced by Sen. Jay Rockefeller (D-WV), along with Sen. Chuck Schumer (D-NY), that would require practitioners who prescribe opiates to have 16 hours of continuing medical education (CME) in their use every 3 years. This is motivated by a serious concern for the abuse of opiates, including re-sale by those receiving prescriptions, which leads to many deaths each year (and in which West Virginia leads the nation). There is no question that this is a huge problem.

We have seen two movements, often in conflict with each other, in recent times. One is the increase in the advocacy for patients with chronic pain to receive adequate treatment; the other is concerned with addiction and prescription drug abuse. Unfortunately, as in West Virginia, the same populations are often afflicted by both. Chronic pain often occurs in those who do physical labor, but people from these same populations are the ones often dying of overdose. The problem is that the same drugs that reduce pain also (initially) get people “high”, and in time create physical addiction where the “positive” effect of the “high” is replaced by pain and misery just from not having the drug. Ideally, there would be a pain reliever that was effective, did not cause any pleasurable symptoms (other than relief from pain), and was non-addictive. We don’t have one.

Will requiring this CME of physicians reduce the problem? I think that it will decrease the number of prescriptions written for opiates, and thus maybe the amount of potentially-abusable narcotics circulating in the community, but perhaps not through the intended mechanism. There is no question that there is a lot that many providers could learn about proper use of opiate pain relievers by taking such courses. One example is the use of long-acting pain relievers (methadone, sustained release patches, long-acting morphine) whose slow release controls pain while decreasing the “high” that results from a sudden infusion of narcotic. (An exception is the most widely-prescribed – and advertised, which might be related – long acting pain reliever, Oxy-Contin®, 30% of which is release immediately, making it more popular among drug abusers than other long-acting opiates.) Another is the use of the “pain contract” that limits a patient to receiving opiates from one physician, at determined intervals, refuses to ever refill if a person is found to be receiving prescriptions from multiple sources, and may require urine tests to be sure that s/he is not using other unprescribed substance.

However, for this plan to work it would require that physicians and other providers want to prescribe narcotics. Obviously some do. Many of these do so because they are concerned about the chronic pain so many patients are in; there are pain medicine specialists who come from a variety of medical backgrounds: anesthesiology, psychiatry, family medicine, internal medicine. There are certainly others (relatively few) who are “Dr. Feelgoods” who make their living prescribing narcotics and other controlled drugs in large amounts, knowing that they will be abused. But the reality is that most doctors find chronic pain patients, well, a chronic pain. They find it difficult to feel certain who is a “legitimate” pain patient and who is “abusing”, or selling, their pain medications. Or who is a “legitimate” chronic pain patient whose family members are using, or selling, that person’s pain medication, leading to both the spread of narcotics in the community and having the patient continue with unrelieved pain. These are the patients who, whether “legitimate” or “abusers”, call the office all the time for refills, call in the middle of the night, yell at the staff because they are in pain (or withdrawing from narcotics, or find their livelihood that comes from selling them is threatened). Most providers would be willing to not take the CME, and have a good excuse to not prescribe opiates, and be free from all these problems. This is, according to testimony at the recent convention of the American Academy of Family Physicians, already happening in some places. Of course, that will also mean reduced access for people who do have chronic pain.

I once lived in a moderately large condominium. I had kids, as did a couple of others, but the majority of residents were older, with no children in their homes. The association would sometimes pass rules that restricted what children could do, especially when the working parents couldn’t make the meetings. These rules affected my children and penalized me. My position was that the association’s rules should be limited to things that affected the safety of the building and maintained its property values, not just anything that 51% of the owners could agree upon. Legislatures, whether federal or state or local, can pass any law that they can get a majority to agree on (with the obvious exception of the US Senate, where apparently, at least with the current President, it requires 60% votes – 59% wouldn’t do it). It doesn’t matter how dumb the laws are, or how much they conflict with existing law, or how much trouble they cause the bureaucrats who have to write the regulations, or how confusing or sometimes impossible it becomes for folks to comply with them all. Unless the courts strike them down, they are law (thank goodness for separation of powers!).

But because you can pass a law or rule about something doesn’t always make it a good idea to do so, whether you are a legislature or a condominium association. Because the Law of Unintended Consequences is always present.