RESOLUTION
SUBJECT: The National Medical Association Strategic Plan Regarding The Criminalization Of Medicine
INTRODUCED BY
Walter F. Wrenn III M.D.
Morris Brown M.D.
MICHEAL JONES MD
Dralves Edwards DO
Joseph Webster M.D.
1. Whereas Physicians are being arrested and incarcerated and
2 Whereas black Physicians are incarcerated at a greater percentage than their white colleagues and
3. Whereas the black community is left without medical care from these black Physicians and
4. Whereas states have passed laws restricting physician prescribing of opiate pain medication, and
5. Whereas the 2016 CDC guidelines have been misapplied and
6. Whereas Preston Phillips M.D. was a victim of restrictive laws by the state of Oklahoma and
7. Whereas Physicians are forced to surrender their medical and DEA licenses before they are convicted of criminal charges THEREFORE BE IT 8. RESOLVED that the NMA is opposed to the criminalization of medicine and the arrest and incarceration of physicians who prescribe opiate pain medication
9. The NMA develop a policy and procedure for prescribing opiate pain medication
10. The NMA form a committee to review all state laws concerning the prescribing of opiate pain medication by physicians
11. The NMA opposed the 2016 CDC guidelines on opiate prescribing and the proposed revisions.
12. The NMA investigate the murder of Preston Phillips M.D. and the role the Oklahoma 2018 law on opiate pain medication prescribing played a role in his death
13. The NMA opposes bringing criminal charges against physicians before a medical board review of the circumstances leading to those charges.
14 The NMA opposes all actions where physicians’ medical and DEA licenses are seized before a criminal conviction or medical board review.
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REFERENCE:
Dr. Xiulu Ruan was a pain specialist in Alabama. Following his conviction in 2017, he was sentenced to serve over 20 years in federal prison for violating several provisions of the federal Controlled Substances Act (CSA) relating to his prescribing practices. Dr. Ruan appealed his conviction and, in March of this year, argued before the US Supreme Court that he had been wrongfully convicted because the trial court had denied his ability to assert a good-faith defense concerning the prescriptions he issued.
FEDERAL LAW ENFORCEMENT AGENCIES ARE UNQUALIFIED TO DETERMINE WHETHER DRUGS “HAVE A USEFUL AND LEGITIMATE MEDICAL PURPOSE
The Supreme Court has long recognized that the state’s protection of “the health of its citizens . . . is at the core of its police power,” Sporhase v. Neb. ex rel. Douglas, 458 U.S. 941, 956 (1982), and has expressly rejected the notion that the CSA grants either DOJ or DEA the broad authority to regulate the practice of medicine:
[t]he [CSA] and our case law amply support the conclusion that Congress regulates medi- cal practice insofar as it bars doctors from us- ing their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the [s]tates “[ ]great latitude
un- der their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons. [ ]”
Gonzales, 546 U.S. at 269-70 (emphases added).
Not only does Congress know how to explicitly delegate the authority to regulate controlled substance prescribing to a federal agency, it has done so in one— and only one—narrow category: opioid use disorder (OUD) treatment. Id. at 271 (holding that 42 U.S.C. § 290bb-2a is the only arena in which Congress has set federal medical standards and “indicates that when Congress wants to regulate medical practice in the given scheme, it does so by
explicit language in the statute”); see also Anderson et al. at 98 (“Despite the longstanding norm of federal noninterference in medicine, . . . the federal government can regulate medical practice if it makes its intention to do so clear and un- ambiguous.”). And even then, Congress expressly delegated the authority to set federal medical standards regarding OUD treatment to the Department of Health and Human Services (HHS) and not a federal law enforcement agency. 42 U.S.C. § 290bb-2a (“The Secretary of Health and Human Services, after consultation with the Attorney General . . . shall determine the appropriate methods of professional practice in the medical treatment of the narcotic addiction. . . .”).
Federal law enforcement agencies are unqualified to determine whether drugs “have a useful and legiti- mate medical purpose and are necessary to maintain the health and general welfare of the American people.”
21 U.S.C. § 801(1). Congress, therefore, did not even leave it to DEA to perform one of its core CSA functions—the scheduling of controlled substances— without health care agency oversight and evaluation. See id. § 811(b) (“The Attorney General shall, before in- itiating proceedings . . . [to schedule or reschedule a drug] . . . request from the [HHS] Secretary a scientific and medical evaluation, . . . The recommendations of the Secretary to the Attorney General shall be binding . . . as to such scientific and medical matters.”).
Furthermore, this Court has expressly held that DOJ cannot criminally prosecute OUD prescribers under CSA Section 841(a)(1) unless they sell “drugs, not for legitimate purposes but ‘primarily for the profits to be derived therefrom’ ” and are acting outside the usual course of professional practice such that their behavior is akin to
that of a “large-scale [drug] pusher, not as a physician.” Moore at 345.
Congress’s refusal to permit a federal agency to regulate the practice of medicine beyond illegal trafficking is further evidenced by the Narcotic Addict Treatment Act (1974) (NATA), which amended the CSA to permit HHS to regulate OUD treatment. NATA’s legislative history demonstrates that the Senate Judiciary Committee carefully weighed the states’ long- standing authority to regulate “the general practice of medicine” against
“the specialized circumstances within the purview of the bill [e.g., OUD treatment], which entail inordinate risks of di- version and unethical profiteering.” S. Rep. No. 93-192, at 13 (1973).
The Committee report further explains that the purpose of the NATA amendments was to “re- affirm the commitment Congress made to the nation when it passed the [CSA] by . . . facilitating the pros- ecution of those who engage in the criminal distribution of legitimate narcotic drugs for profit.” Id. at 15.
In sum, the CSA permits the federal prosecution of prescribers who operate as drug traffickers as tradi- tionally understood and, thereby, knowingly or intentionally engage in prescribing conduct that exceeds the bounds of professional practice. Congress never intended to delegate to law enforcement the authority to regulate the practice of medicine by criminalizing good faith medical mistakes. See 21 U.S.C. § 903.
The CSA also depends on state law to determine which medical professionals constitute “practitioners” acting “in the course of professional practice” and are, therefore, presumptively eligible for federal controlled substance registration. 21 U.S.C. § 823(f ) provides that “[t]he Attorney General shall register practitioners . . . to dispense . . . controlled substances . . . if the applicant is authorized to dispense . . . controlled sub- stances under the laws of the State in which he practices”) (emphasis added); id. § 802(21) (defining “practitioner” to include “a physician . . . licensed by the United States or the jurisdiction in which he practices . . . to . . . dispense . . . a controlled
substance in the course of professional practice”) (emphasis added).
The CSA further mandates that DOJ defer to state medical licensing authorities before denying, suspending, or revoking a state-licensed prescriber’s registration. Id. § 823(f )(1) (explaining that the Attorney General may deny, suspend, or revoke a state-licensed prescriber’s registration if doing so is in “the public interest” and that the first of the five factors that the Attorney General must consider in making such a determination is “[t]he recommendation of the appropriate State licensing board or professional disciplinary authority”).
TARGETTED LIST DOJ-DEA
