Publications
APS Bulletin • Volume 10, Number 4, July/August 2000
Pain and Public Policy
Pain Care Remains on Congressional Agenda
Robert J. Saner, Esq.; Amy E. Bacon
With the end of the 106th Congress quickly approaching and with members preparing for an important election in November, several of the most controversial bills affecting the healthcare industry remain unresolved. Among them are two of the most significant bills to members of the pain care community: the Hyde-Nickles Pain Relief Promotion Act and managed care reform legislation.
The Pain Relief Promotion Act
The heated debate over the Pain Relief Promotion Act continues, with an improved version of the bill awaiting action by the full Senate. During the past 6 months, the American Pain Society (APS), working through the Pain Care Coalition, worked actively with the staff of the Senate Judiciary Committee and with the bill sponsors to improve the House-passed bill. As a result of these efforts and the efforts of other interested healthcare organizations, Senate Judiciary Committee Chairman Orrin Hatch (R-UT) offered, and the committee approved, a substitute bill that made several significant changes to the original bill.
First, by raising the standard of proof in certain Drug Enforcement Agency administrative proceedings to that of “clear and convincing” evidence, the substitute bill would ensure that any new law made by this bill could be used against physicians only in the most clear-cut cases and not simply because 20/20 hindsight raised suspicion about a physician’s intentions in prescribing controlled substances to terminally ill patients.
Second, and of equal or greater importance in the long run, are beneficial changes in the bill’s new initiatives to further education and training in appropriate pain care, including the legitimate use of controlled substances. By broadening these new authorities to include pain care generally rather than just palliative care at the end of life, the substitute bill ensures that the use of controlled substances will be viewed in context with the other diagnostic and therapeutic options available in this rapidly maturing field of medicine. To equate pain care only with the needs of the dying or to promote the use of controlled substances while ignoring other more appropriate modalities would have been a disservice to millions of Americans who suffer daily from pain that is unrelated to terminal illness and for which controlled substances are neither the most appropriate nor the most effective treatment.
Finally, the substitute bill declares the next 10 years to be the decade of pain control and research. Despite its prevalence as a leading health problem, pain has often been a largely invisible condition. It lacks a significant constituency at the federal level, which has contributed to serious underinvestment in research and treatment in the pain field. A congressionally declared decade will bring a much-needed focus on pain in both the public and private sectors. It can be an important first step in stimulating further progress in research, training, and clinical care.
Senator Ron Wyden (D-OR) is expected to filibuster the bill once it reaches the Senate floor. Supporters of the bill are currently working to ensure they have enough votes to stop any threatened filibuster and to proceed with consideration of the measure. Should the full Senate approve the Hatch substitute bill, the House and Senate would have to hold a conference to work out the differences between the two versions of the bill.
While it remains unclear if Congress will approve this bill before it adjourns this fall, the highly charged debate over physician-assisted suicide has, for the first time, focused badly needed attention on issues affecting pain care policy at the federal level.
Patient rights and managed care reform
Managed care reform conferees have been meeting for months in an attempt to reconcile the differences between the Senate-passed Patients’ Bill of Rights Act (S. 1344) and the House-passed Bipartisan Consensus Managed Care Improvement Act (H.R. 2990). The two issues most difficult to resolve remain the number of individuals the legislation will cover and whether to expand patients’ ability to sue their health plans.
The conferees have made little progress to date. Senator Edward Kennedy (D-MA), claiming the negotiations to merge the two bills had virtually stalled, bypassed the conference and brought the broader House-passed version directly to the Senate floor, offering it as an amendment to the Department of Defense authorization bill on June 9. The Senate narrowly rejected the amendment 51–48.
The future of the conference remains unclear. Republicans are upset with Democrats for bringing the bill to the floor, insisting that the conference was making progress. Democratic conferees maintain the conference is not over, but say they will no longer agree to closed-door meetings. Both parties agree, however, that it will be exceedingly difficult to broker a compromise if the negotiations continue past July.
Both sides have proposed compromises on several key issues, including the scope of the bill and liability. However, Democrats have characterized the Republican proposal as too restrictive, saying the offer does not go nearly far enough. Republicans, on the other hand, insist that the Democratic proposal is not a legitimate compromise, arguing Democrats merely restated the principles in the House-passed bill.
While the legislation remains mired in controversy, the conferees have tentatively agreed to include a provision on access to emergency care under the “prudent layperson” standard, which was supported by APS. That standard includes a reference to “severe pain” as part of the definition of “emergency medical condition.”
Looking ahead
Several bills addressing pain care issues in some manner have been introduced in this Congress. These initiatives are an important reflection of the growing awareness of and concern for pain as a public health priority in this country and among policy makers at the federal level.
Throughout the end of this session of Congress and into the next, APS will continue to work to advance legislative proposals that promote appropriate pain care.
Robert J. Saner is a principal in the law firm of Powers, Pyles, Sutter & Verville, P.C., and serves as Washington counsel to the Pain Care Coalition. Amy E. Bacon is legislative director of Powers, Pyles, Sutter & Verville, P.C.