By Roger Chriss, Columnist
Agents with the Drug Enforcement Administration recently raided the offices and home of Dr. Forest Tennant, a prominent pain physician in California. According to an affidavit the DEA filed in support of a search warrant, Dr. Tennant is “profiting from the illicit diversion of controlled substances” and is part of a drug trafficking organization that has “submitted millions of dollars in fraudulent Medicare prescription drug claims.”
Dr. Tennant, who was recently honored with a lifetime achievement award, has not be charged with a crime and denies doing anything wrong. He says the DEA is out to smear his reputation and those of other doctors who prescribe opioid pain medication.
The DEA’s mandate includes protecting the public from inappropriate distribution of drugs, including opioids, and securing the supply of all controlled substances. But the DEA’s methods have long been scrutinized and found wanting.
A study from 2008 identified 725 doctors who were charged with offenses involving opioid medication. Of those, about 40 percent were general or family practice physicians, and only 3.5% were board-certified pain specialists.
A 2016 study attempted to quantify the nature of these investigations. Researchers analyzed 100 cases of allegedly improper opioid prescribing and found that most of the physicians were male (88%); over 40 years of age (90%); non-board certified (63%); and nearly all were in small private practices (97%). A little over half of the doctors (54%) were said to have “self-centered personality traits.”
A thorough review of the legal issues involved in improper opioid prescribing came to several important conclusions. First, that the “information available about physician misprescribing is in small supply.” This alone is surprising, since the DEA, as well as the FDA, state medical boards and pharmacies would seem well-equipped to have very granular data about opioid prescribing practices.
Next is the “4D Model” of investigations, which typically group “misprescribers” into four categories: dated, duped, disabled or dishonest. The model emerged in the late 1970s from work by addiction medicine experts, but has been shown to be dysfunctional at best, and arguably even damaging to both pain medicine specialists and chronic pain patients.
In particular, the 4D Model cannot readily be applied to misprescribing because “dishonest” is too vague and narrow. As a result, “for liability to attach to physicians, they must prescribe controlled substances knowingly; without a legitimate medical purpose; and outside the course of professional practice.” As the raid on Dr. Tennant suggests, these criteria are not always satisfied, as his very sick patients will attest.
But the DEA is empowered to investigate as it sees fit. The DEA says the “types of cases in which physicians have been found to have dispensed controlled substances improperly under federal law generally involve facts where the physician’s conduct is not merely of questionable legality, but instead is a glaring example of illegal activity.”
Prosecution of Doctors Increasing
Since 2008 the DEA has been adding agents and resources to its ranks. From the review article, “the squads increased investigations, inspections, and administrative actions significantly” and “the number of criminal malpractice prosecutions in this area has also risen.”
That is having a substantial impact on the world of pain management. Although investigations are certainly warranted in cases like pill mills, rogue doctors, and illegal online pharmacies, most DEA investigations do not result in criminal charges. But even a warning letter from the DEA to one physician at a healthcare facility can have a chilling effect on prescribing practices in the entire facility. Thus, the DEA’s actions can ripple out to chronic pain patients far removed from the target of an investigation.
It is also important to note that DEA investigations and resulting charges are often dismissed. In a blog post in support of Dr. Tennant, pain management expert Dr. Lynn Webster recounts his own experience with a DEA investigation that was dropped four years after it began.
“The DEA wanted information, but even more, they wanted to exhibit a show of force to intimidate my patients, employees, and me,” said Webster.
In Florida, Dr. Debra Roggow was caught up in a pill mill investigation, mostly based on the amount of opioids she prescribed. Roggow was ultimately acquitted of all charges, but not until her reputation and practice were ruined.
"This has been a horrifying, humbling experience," she said. "I was worried, of course. I knew of my innocence, but innocent people do go to jail."
There is a vast gulf between a legitimate pain specialist like Dr. Tennant and a pill mill.
As Sam Quinones describes in his book Dreamland, “If you see lines of people standing around outside, smoking, people getting pizza delivered, fistfights, and traffic jams—if you see people in pajamas who don’t care what they look like in public, that’s a pill mill.”
Misprescribing opioids is not a well-studied or well-understood problem. This is peculiar, given that it is now 20 years since the start of the opioid crisis. The current 4D Model is flawed, and given the influx of heroin and illicit fentanyl into the country, the DEA does not seem to be fulfilling its mission statement of “reducing the availability of illicit controlled substances on the domestic and international markets.”
The raid on Dr. Tennant’s practice may be part of a legitimate operation, such as the investigation of Insys Therapeutics and its fentanyl product Subsys. But if so, that arguably could have been accomplished without the drama of DEA agents swarming into a small medical practice or breaking into the home of a respected 76-year physician while he and his wife were out of town.
A spirit of cooperation between physicians and law enforcement would go a long way to help pain management specialists and their patients in the opioid crisis.
Roger Chriss lives with Ehlers Danlos syndrome and is a proud member of the Ehlers-Danlos Society. Roger is a technical consultant in Washington state, where he specializes in mathematics and research.
The information in this column should not be considered as professional medical advice, diagnosis or treatment. It is for informational purposes only and represents the author’s opinions alone. It does not inherently express or reflect the views, opinions and/or positions of Pain News Network.
Dr. Tennant and the Tennant Foundation have given financial support to Pain News Network and are currently sponsoring PNN’s Patient Resources section.