[Congressional Record Volume 157, Number 136 (Wednesday, September 14, 2011)]
[Senate]
[Pages S5627-S5628]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL:
  S. 1560. A bill to enhance access to controlled substances for 
residents of institutional long-term care facilities, and for other 
purposes; to the Committee on the Judiciary.
  Mr. KOHL. Mr. President, I rise today to introduce the Nursing Home 
Resident Pain Relief Act of 2011. This legislation will help ensure 
that nursing home residents have timely access to pain medication as 
needed in emergency situations. By streamlining processes that can now 
cause delays in administering these vital drugs, the bill will also 
allow designated health care professionals to administer controlled 
substances to residents whose medical conditions warrant quick pain 
relief.
  To accomplish these ends, the legislation amends the Controlled 
Substances Act, CSA, in several ways. First, it allows nurses and other 
appropriately licensed health professionals, designated by the nursing 
home and with approval from the physician, to order and administer pain 
medication to residents upon a physician's oral prescription. The bill 
also establishes a clear chain of accountability for these licensed 
health professionals, physicians, as well as for nursing homes and 
long-term care pharmacies.
  Last year, the Special Committee on Aging, which I Chair, held a 
listening session where we heard about a recent Drug Enforcement 
Agency, DEA, enforcement initiative that has kept nursing home 
residents from receiving much-needed medication to manage their pain. 
For many years, nurses had been able to call urgently-needed 
prescriptions into pharmacies upon a physician's order over the phone. 
Pharmacies would fill the order, residents would get their pain 
medication, and physicians would follow up with written confirmation of 
the prescription. Now, DEA requires physicians to directly issue 
prescriptions in writing for Schedule II pain medications before they 
can be dispensed, including in emergency circumstances. This poses a 
problem for nursing home residents because facilities often do not have 
physicians on site to fill out the necessary paper work in time to 
provide critically needed pain medicine. The DEA's enforcement 
initiative has created an unintended consequence where nursing home 
residents often have to suffer for several hours or even days before 
they receive pain medication.
  These delays have serious consequences. Here is an all-too-common 
scenario: an elderly resident that returns to a nursing home after 
surgery may be in more pain than his physician anticipated and need 
more medication than the physician prescribed to manage the pain. In 
order to access the medication he needs, the nursing home employees 
must first have his physician send a written prescription to a 
pharmacy. If the physician is difficult to locate or slow to respond, 
this can take hours or even days. The resident's

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pain may become so unmanageable while he waits that he must be 
transported by ambulance to a hospital emergency room. The ambulance 
ride and emergency room admission are not only expensive; they can set 
back the fragile resident's recovery from surgery. Our legislation 
would make these situations entirely avoidable.
  DEA's enforcement initiative effectively put nursing home providers 
in a difficult position: If they follow the letter of the law, they are 
in danger of violating Health and Human Services regulations requiring 
them to administer medications in a timely manner. Failure to do so can 
result in monetary penalties. In addition, pharmacies could face fines 
under the CSA if they respond to the nursing home's order--which is 
almost always transmitted by a nurse--if they fill the order. As a 
result, a number of pharmacies, including several in the Midwest, are 
facing tens of millions of dollars in fines imposed by DEA.

  Last year DEA issued a policy statement to provide a way for nursing 
home residents to access some kinds of medication more quickly. Under 
this new policy, a nursing home's licensed health care professionals 
may, on a physician's behalf, transcribe the physician's oral 
prescription for Schedule III, IV or V medications to a pharmacy to be 
filled. While we appreciated DEA's efforts, without amending the CSA 
the agency does not have the statutory authority to allow licensed 
health care professionals to transmit prescriptions for Schedule II 
controlled substances, the category under which nearly all pain 
medications fall. Legislation is required in order to provide nursing 
home residents prompt, reliable pain relief when they are suffering 
from severe injury or illness.
  Our bill would provide a remedy by modifying the CSA to permit pain 
medication to be dispensed in emergency situations by nursing home 
professionals without a direct written order by a physician prior to 
its dispensing. Let me explain how this would work. A physician, if he 
or she chooses, would be able to authorize the administrator of a long-
term care facility to designate one or more licensed health care 
professionals employed by the facility to act as a ``facility 
designee.'' In emergency situations only, and upon receiving an oral 
prescription from the physician, a facility designee would be permitted 
to contact a pharmacy to have the prescription filled and then dispense 
Schedule II medications to long-term care facility residents.
  This would allow a physician to provide the prescription information 
to the facility designee via phone when a resident urgently needs pain 
medication and the physician is unavailable to transmit a written 
prescription to a pharmacy for a Schedule II controlled substance. The 
facility designee must document the physician's prescription in writing 
and transmit the written document to a pharmacy so that the 
prescription can be filled. After the pharmacy fills the prescription, 
it must send a copy of the written document memorializing the 
prescription to the physician for his or her endorsement. The physician 
must then send the endorsed document, confirming the oral prescription, 
to the pharmacy within five business days.
  Diversion of controlled substances for illicit purposes is of great 
concern to me. That is why we have included numerous provisions to 
protect against diversion in nursing homes. For example, the bill 
requires careful recordkeeping by facilities and pharmacies, which can 
then be reviewed by DEA as necessary. It requires each actor--the 
physician, facility designee, and pharmacist--to make a record of his 
or her role in the process. Long-term care facilities are asked to 
maintain a written or electronic logbook that memorializes 
prescriptions and their administration.
  Additionally, the legislation enhances criminal and civil penalties 
for long-term care facility administrators and facility designees who 
divert drugs, or who violate recordkeeping requirements. These steps 
will help to ensure that pain medications get to those nursing home 
residents who need them.
  I appreciate the great interest of the stakeholders, including long-
term care facility, physician and pharmacy organizations, in solving 
this problem and I look forward to working with them to finally end the 
needless delay in pain relief. I would like to thank Attorney General 
Holder, DEA Administrator Michelle Leonhardt, and their staff for 
working with me on this legislation, and I look forward to continuing 
our work together to assure rapid approval by Congress.
  Nursing home residents cannot wait for pain medication when they are 
in debilitating pain and our straightforward bill can help provide some 
needed relief. I urge my colleagues to support this important 
legislation.

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