This article by Steve Forbes, it seems to have been composed by a person who really can’t make up their mind as to which side of the war on drugs/pts they want to be on. Whatever law firm that Walmart has hired, it would seem like they have done a lot of wide & deep research concerning the shenanigans that the DEA has done over the decades to put on the image that they are really interested and dedicated in fighting/winning the war on drugs/pts.
About one year ago, the Alaska Board of pharmacy sent a letter to all pharmacies/pharmacists State, Pharmacy Board tell pharmacies: ‘Fill legitimate opioid prescriptions’
If Walmart comes out ahead on this lawsuit, could be a significant indicator that the denial of pain pendulum is starting to swing in the opposite direction. There is a phrase in the Controlled Substance Act – “corresponding responsibility” … it has been interpreted by the DEA and Pharmacy Boards that it means that both the prescriber and pharmacist are responsible for a controlled substance being prescribed or dispensed to a person without a valid medical necessity. I have often stated that this phrase should be a “two-way street” … to date there has been little concern if a dose DOES NOT GET INTO THE RIGHT HAND… the only concern is if a dose GETS INTO THE WRONG HAND. It would appear that everyone involved has little concern if a legit pt does not get their medically necessary medication… it is just collateral damage that ALL WARS HAVE… something like deaths from “friendly fire” !
One thing that I did not see in this article and it may have been in the filed lawsuit – about the discrimination and civil rights violations that the DEA is causing to untold hundred of thousands or millions of chronic pain pts. If Walmart prevails, this could be one small step for chronic pain pts… in getting adequate pain management. It could also be the genesis of a tsunami of law firms and lawsuits against many healthcare organizations and practitioners.
Walmart fights back against DOJ opioid lawsuit and action begs question about why DEA isn’t doing its job
https://www.foxbusiness.com/politics/walmart-doj-opioid-lawsuit-dea
It’s a story that unfortunately never gets old: Career bureaucrats failing in their mission to address a major public policy issue try to shift the blame, shirk the responsibility and scapegoat the innocent.
In the case of the opioid epidemic, those bureaucrats are at it again. Despite the massive failure of the Drug Enforcement Agency (DEA) to recognize and deal with the enormous growth in the production of opioids (which is literally their job – to regulate production levels), and despite their crisis-fostering failure to end prescribing by problematic doctors (again, literally their job), the DEA is targeting pharmacists and pharmacies for blame.
Enter the Department of Justice with a headline-seeking, deep-pocket-targeted pending lawsuit.
But for once, one of their targets is fighting back. The Wall Street Journal reported in late October that Walmart had filed a preemptive lawsuit against the Department of Justice and the Drug Enforcement Agency ahead of a potential opioid-related suit by the DOJ.
In a suit filed last month in federal court, Walmart, which runs over 5,000 pharmacies, argued that DOJ lawyers are planning to target them without being able to cite any actual law or rules that they are violating.
The company is seeking a declaration from a federal judge that the government has no legal basis for such a lawsuit.
Walmart, as it argues in its filing, is caught between a rock and a hard place on the issue of filling opioid prescriptions.
On one hand, federal government lawyers have targeted them for filling customer prescriptions from certain doctors, arguing that pharmacists at Walmart should have inserted themselves into the doctor-patient relationship and refused to fill legitimate (no evidence of fraud or forgery) prescriptions despite having no knowledge of the patients’ medical history, treatment or illness.
On the other hand – as Walmart extensively details – if they refuse to fill legitimate prescriptions, they risk having their licenses revoked. In fact, many states have already taken action against Walmart for refusing to fill opioid prescriptions.
All pharmacies lose whichever choice they make.
Walmart is asking the court to resolve these conflicting demands by declaring that the Controlled Substance Act “does not require pharmacists to second-guess a registered and licensed doctor’s decision that a prescription serves a legitimate medical purpose.”
As Walmart said in its lawsuit, “[i]n the shadow of their own profound failures, DOJ and DEA now seek to retroactivity impose on pharmacists and pharmacies unworkable requirements that are not found in any law and go beyond what pharmacists are trained and licensed to perform.”
In their threatened action against Walmart, some DOJ career lawyers have identified hundreds of doctors whose written prescriptions they claim shouldn’t have been filled by Walmart pharmacies.
Yet, 70% of these very doctors continue to be actively registered with the DEA. So, government officials cannot even take action against the doctors they claim are writing suspicious prescriptions, but they threaten private companies for not stopping those very same doctors.
DEA needs to do its job and crack down on doctors abusing their privileges, not target pharmacies for not doing the job DEA failed to do.
These threats are made worse by the fact that these government officials cannot point to any laws or official DEA guidelines that are being violated.
According to Walmart, the claims are based instead on alleged “violations” of informal letters and PowerPoint presentations. It should also be noted that by their own rules, DOJ is not allowed to base a case on such unofficial guidance.
The full power of federal law enforcement should not be unleashed on the basis of bureaucratic presentations!
Walmart is asking the court to declare that DOJ and DEA “must follow their own regulations and may not base any enforceable legal positions on the alleged violation of agency guidance rather than obligations found in a statute or duly promulgated rule or regulation.”
Clearly, the likely action by the Justice Department is not about addressing the real issue or enforcing the law, it is about shifting blame – and finding deep-pocketed targets to shake down.
Walmart should be commended for calling their bluff and taking steps to ensure that those responsible for fighting this crisis implement clear rules and regulations for pharmacists across the nation.
The opioid addiction crisis has been crying out for leadership by our government agencies and it’s time put an end to their blame games and hold them accountable for real action.
Walmart’s turn to the court is a bold and important move by the company to stop this intimidation effort. Pharmacies and pharmacists – whether Walmart or small corner pharmacy – deserve clarity, resolution and simple justice.
Steve Forbes is chairman and editor-in-chief of Forbes.
Filed under: General Problems
Facts and logic have a nasty habit of persisting, long after the screaming and shouting have ended. Mr Forbes’ editorial reminds me of another famous case of “open mouth, insert foot”, when Douglas was debating Lincoln on the Slavery issue during the 1860 election campaign. Douglas managed to paint himself into a corner arguing with Lincoln, and infamously argued that only about one person in 20 was actually smart enough and educated enough to vote wisely. The other 19 in 20, said Mr Douglas, were basically incapable of managing their own affairs without a boss to tell them how to organize their day. For some years Abolitionists had been asserting that a shadowy group, the ‘Knights of the Golden Circle” wanted to build a feudal society in America and export slavery to Mexico and the Caribbean. The leaders of this shadowy group had kept insisting that they were not a real group and had no such intentions. When Mr Douglas shot off his mouth and uttered that admission, that 19 of 20 voters were too dumb to vote and should shut up and take orders, he convinced many listeners that the pro-slavery conspiracy was a real organization, and that he was part of it. The harshest accusation Abolitionist leaders had been able to hurl at pro-slavery forces, was that the pro-slavery forces intended someday to turn White people into slaves. And here was candidate Douglas sounding exactly that note! If “Voters are too stupid to know what’s good for us”, who, then, is to speak for 19 of every 20 of us?
DEA has, according to the Complaint in the Washington v Sessions case currently on trial in US District Court for the Southern District of New York, operated during it’s entire history as primarily an instrument of political repression and intimidation. The Complaint is lengthy and very detailed. It’s great reading and can be found at http://t.co/AXFlo9w8mf with they key point of the story at Pages 46-53, in which is demonstrated that the Agency’s mission was never intended to be one of promoting public health, but to be an agent of political terrorism. The Agency had a history from the date of it’s founding, says the Complaint, of modifying the story to fit the political mission, and not to stick to any particular set of facts. In their defense, AG Jeff Sessions asserted, through counsel, that the Complaint was very difficult to comprehend and that it should be dismissed. The trial court found that argument unbelievable, then granted dismissal on an obscure technicality unique to the courts of New York and Connecticut. On appeal to the Second Circuit Court of Appeals, that court threw out the technicality as a defense to this case and ordered the trial to go forward. The new AG, Mr Barr, proposed settlement terms under which DEA Administrative Law judges would hear the claims of each of the civil plaintiffs in the case, before any trial was held. Meanwhile, the FDA licensed the drug Epidiolex, made from cannabis, which eliminated DEA’s jurisdiction of the plaintiff who had epilepsy and Congress legalized cultivation of CBD, which partially mooted some of the other cases. As for the basic point that DEA keeps changing the verbal rules as they go, and never writes the actual rules down on a piece of paper so that a physician or pharmacist knows for a fact if they obeyed or broke the law? That appears to have been the case from the Agency’s founding under Nixon, until the present day.
Our Constitution forbids Ex Post Facto laws. The DEA may not lawfully wait for people to do a thing, then make up a claim that their actions are illegal and prosecute them for doing what everyone understood to be a lawful activity. If the Agency wants to rely on guesswork, Power Point presentations, word-of-mouth rumors of “red flags” that a doctor or a patient might be doing something illegal, it violates our Constitution. Does the Agency really think that 19 of every 20 of us lacks the brains to make our own decisions about our medical treatment? Must we have a taskmaster from DEA standing above us cracking the whip, to make sure we are not shirking our work? Did Nixon create a monstrosity that Jefferson Davis only dreamed about? This case needs to go forward in the courts, and CPPs need to make ourselves heard in court. We must write and litigate, as if our lives depend on it.