Citation
The role of state legislatures in removing chronic pain and their ability to remove barriers to managing such pain

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Title:
The role of state legislatures in removing chronic pain and their ability to remove barriers to managing such pain
Creator:
Dinegar, Leonard Allan
Publication Date:
Language:
English
Physical Description:
v, 83 leaves : ; 28 cm

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Subjects / Keywords:
Pharmaceutical policy -- United States ( lcsh )
Chronic pain -- United States ( lcsh )
Chronic pain ( fast )
Pharmaceutical policy ( fast )
United States ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 81-83).
General Note:
Department of Humanities and Social Sciences
Statement of Responsibility:
by Leonard Allan Dinegar.

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|University of Colorado Denver
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Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
41461156 ( OCLC )
ocm41461156
Classification:
LD1190.L58 1998m .D56 ( lcc )

Full Text
THE ROLE OF STATE LEGISLATURES IN REMOVING CHRONIC PAIN AND
THEIR ABILITY TO REMOVE BARRIERS TO MANAGING SUCH PAIN
by
Leonard Allan Dinegar
B.A., The Catholic University of America, 1985
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Humanities
1998
\
1


This thesis for the Master of Humanities
degree by
Leonard Allan Dinegar
has been approved by
j 9
Date


Dinegar, Leonard Allan (M.H., Humanities)
The Role Of State Legislatures In Removing Chronic Pain And Their Ability To
Remove Barriers To Managing Such Pain
Thesis directed by Thad Tecza
ABSTRACT
Chronic pain is as old as humanity. As long as pain has existed, there have
been efforts to relieve or control it. This thesis defines chronic pain and the impact it
has on the individual and society. Evidence shows that chronic pain is a growing
problem in our society. It clearly impacts patients and is costly to the healthcare and
business industries. Despite the increasing need to appropriately manage chronic
pain, the health care community, educators, insurance industry, government and
others have created barriers to effectively managing chronic pain. Recently,
legislatures have attempted to meet the challenge of removing such barriers.
In the past ten years sixteen states passed laws or resolutions regarding the
treatment of chronic pain. After analyzing the efforts of state legislatures to address
complex issues, the data suggests that, if certain circumstances exist, legislatures have
a role and ability to affect meaningful change on complex issues such as chronic pain.
This thesis explores those instances when a legislature can affect change on a complex
issue.
This abstract accurately represents the content of the candidates thesis. I
recommend its publication.
Signed


CONTENTS
CHAPTER
1. INTRODUCTION AND OVERVIEW...............................I
Types of Pain.....................................1
History of Pain Management........................3
Chronic Pain: A Growing Problem...................6
Effects of Chronic Pain...........................9
2. METHODOLOGY........................................... 12
3. BARRIERS AND RECOMMENDATIONS TO
APPROPRIATE PAIN MANAGEMENT............................19
Appropriate Pain Management....................19
Pain Relief vs. Pain Management..................20
Barriers to Effective Pain Management............22
Patients...................................22
Education..................................23
Health Care Professionals..................24
Health Care Organizations..................25
Cost.......................................26
Government and Society.....................28
Proposed Recommendations.........................30
Patients...................................30
Education..................................31
Health Care Professionals..................31
Health Care Organizations..................32
IV


Cost.......................................33
Government and Society.....................33
4. LIMITATIONS ON THE ABILITY OF A STATE
LEGISLATURE TO DEAL WITH A COMPLEX ISSUE...............37
Limitations......................................37
Strategies for Introducing Complex Legislation...44
Legislative Outcomes............................ 46
Exceptions to the Rule...........................49
Summary..........................................51
5. THE ROLE OF STATE LEGISLATURES TO REMOVE
BARRIERS TO MANAGING CHRONIC PAIN......................53
Matching Criteria with the Issue of Chronic Pain.53
State Overview...................................55
Response to Physician-Assisted Suicide...........61
California Model.................................63
Colorado Model...................................69
Comparison.......................................72
6. ANALYSIS AND CONCLUSION................................77
REFERENCES.........................................................SI
v


CHAPTER ONE
INTRODUCTION & OVERVIEW
Chronic pain is as old as humanity. As long as pain has existed, there have
been efforts to relieve or control it. In every civilization, in every culture, are found
prayers, exorcisms, and incantations that bear testimony to the dominance of pain
(Raj 3).
The focus of this investigation is the management of chronic pain, a complex
issue, and the role and ability of state legislatures to remove barriers to managing
chronic pain. Chapter one defines the different types of pain, provide a brief history
of pain management, and explains why certain individuals consider chronic pain a
defining illness of our time.
Types of Pain
There are three types of pain germane to this investigation: 1) Acute pain,
which is defined as traumatic pain from injury, surgery, or illness that is expected to
be resolved as the underlying problem is treated. An example is a broken leg. Acute
pain subsides quickly and can usually benefit from conventional medical treatment.
2) Cancer pain, which can be intermittent or ongoing and is directly related to cancer.
3) Chronic pain, which is a pain state in which the cause cannot be discovered,
1


removed, or otherwise treated, and no relief or cure has been found after reasonable
efforts. Chronic pain can be caused by migraine headaches, arthritis, and back pain.
For the purposes of this investigation, the terms chronic pain and intractable pain are
interchangeable. This investigation will focus on chronic pain.
The major distinction between cancer pain and chronic pain is life expectancy.
Although both have a similar type of pain, cancer pain has a shorter life expectancy
because cancer patients have a shorter life expectancy. Patients with chronic pain
may live for many years with their pain. Therefore, there may be a significant
difference in the therapies for the two types of patients. For example, cancer patients
are more likely to be treated with narcotics (the strongest pain relieving drugs) which
may cause side effects such as drowsiness, nausea and vomiting (American Cancer
Society 35). Chronic pain patients may receive a different therapy because they need
to continue to meet the economic, familial and vocational demands of their lives for
years to come (Angel). These individuals may not be able to take the stronger
narcotics to reduce their pain because of the side effects which may limit their
lifestyle.
A second difference between cancer pain and chronic pain is that the cause of
cancer pain is a diagnosable disease. In many cases, chronic pain is not associated
with a disease and cannot be diagnosed. An example of the cause of chronic pain is a
laborer who lifts heavy materials every day for 25 years and develops an aching back.
2


In the cases where chronic pain does have a diagnosable cause, such as arthritis, most
often it is not curable or treatable and eventually, as is often the case with chronic
pain, the pain becomes the disease that is being treated or managed.
Within each type of pain, there are different levels of pain and different levels
of treatment. For example, some headache and back pain can be relieved with aspirin.
Acute pain, such as a broken bone, can be healed with appropriate medical attention.
Chronic pain, however, is the type of pain which cannot be relieved. Although
chronic pain may be intermittent, it is ongoing. By its very definition, chronic pain
cannot be eradicated. In many cases, however, chronic pain can be managed in such a
way that a person can perform their normal activities.
History of Pain Management
Ancient myths and oral histories reveal that early efforts to relieve pain
focused on superstition and religious mysticism. Many years later, as knowledge
increased, efforts to relieve pain relied more on reason. Unfortunately, the results
were still not encouraging. The earliest efforts to relieve pain included physical
therapeutic methods, such as rubbing an injured part, exposing it to cold water or the
heat of the sun, or applying pressure in the right area. Aboriginal tribes considered
pain an evil spirit that needed to be appeased or frightened away by using symbols
such as tiger claws and other charms.
There was a gradual change in how man interpreted pain. Instead of seeing
3


pain as an evil spirit, man began to view pain as punishment handed down by an
offended deity. This change of thinking also affected the way pain was treated. The
priest, servant of the gods, was given the responsibility of relieving pain, usually
using prayer at the shrine of the deities.
Christianity brought on a new understanding of pain. Jesus used the laying on
of hands and other forms of divine healing and prayer to heal the sick and relieve their
pain. Priests also used natural remedies, such as herbs, which were eventually handed
down to the medicine man. The use of analgesic drugs derived from plants was
common in most ancient cultures. During the Middle Ages, an Arabian named
Avicenna became known as The Prince of Physicians.
In his [Avicenna] Canon of Medicine, in which he codified all available
medical knowledge, he described fifteen types of pain and suggested such
methods for its relief as exercise, heat, and massage, in addition to the
use of opium and other natural drugs. This became the authoritative
medical textbook of Europe for six centuries. (Raj 7)
However, other than the work of Avicenna, little else moved forward during
this period of ignorance and superstition. Although the Renaissance brought about
many advances in science, there were few advances in medicine. At the end of the
18th century, many of the herbs and drugs, such as opium, that had been used for two
thousand years were still the primary source of relief from pain.
The contemporary era of pain management was ushered in in 1772 with the
introduction of nitrous oxide, which contained analgesic properties. In 1846, the first
4


public demonstration of surgical anesthesia was used at Massachusetts General
Hospital. This allowed doctors for the first time to attack pain through surgical
procedures.
During the 19th century physical medicine made rapid advancements and the
scope of pain management was enlarged. Although there have been great strides in the
management of pain during the first half of the 20th century, including the use of
anesthesia, blood transfusions, and antibiotics, the medical community is far from
understanding pain (Raj 11).
Just as there has always been efforts to control or relieve pain, there have also
been barriers preventing appropriate pain management. Until the first half of this
century, there have been two major obstacles standing in the way of scientific
investigation to effective pain management. Both are housed in the human mind
religion and philosophy. For centuries religious beliefs held back any scientific
investigation into the relief of pain. Pain was considered a form of discipline for the
sinners. Christianity believed pain to be a form of sacrament because it was regarded
as a trial, a judgement given down from God that was good for the soul. These beliefs
precluded pain from being studied and any attempts to abolish pain were frowned
upon. Separately, philosophers such as Aristotle and Plato viewed pain as an
emotional process, a passion of the soul (Raj 11). This view was accepted for two
thousand years and was decidedly instrumental in delaying scientific investigations in
5


the area of pain.
Chronic Pain: A Growing Problem
Chronic pain is a growing problem in society today. David Morris wrote in
his book, The Culture of Pain, that Chronic pain, mysterious, dull, and nonfatal,
might be the defining illness of our... era (66). It is difficult to believe that an
illness that is not deadly, or one that almost goes unnoticed by those not directly
impacted, might be described as the defining illness of our era. Morris says that
chronic pain works almost completely in secret, its presence completely undramatic,
like white collar crime or a terrorist in a business suit. It does not inspire telethons
and rock concerts (66). Chronic pain is invisible in society because it is
commonplace and nonfatal. Charles S. Cleeland, Ph.D., President of the American
Pain Society says that Mainly because of its invisibility, pain has rarely been a
priority of organized health care at any level (1). However, the issue of chronic pain
is not as invisible as it once was.
The issue of chronic pain has recently become more widely recognized because
of the attitudes both patients and physicians have toward pain. In recent years, due
to medical advances, expectations for relieving pain have changed for both the patient
and the doctor. In the past, doctors would only treat acute pain patients whose pain
could be removed through traditional treatment. Today, doctors and patients both
believe and expect that a cure for the patients pain is the standard of medical service,
6


whether it be acute or chronic. Unfortunately, these expectations do not meet with
the reality of treating chronic pain. Patients believe that somewhere in the world
there is a doctor who, or a drug which can completely relieve their pain. This just is
not so for everyone, especially chronic pain patients (Angel).
Reasons for the increased prevalence of chronic pain in society today include:
Technology. Technology today is saving more lives, e.g., premature babies and
cancer patients, than ever before. However, although their lives are saved,
many of these patients will live with some form of chronic pain for the rest of
their lives. Therefore, technology actually adds to the number of people living
with chronic pain.
Society. Our society promotes not only compassion for those in pain, but it
provides a cmtch for people in pain. Through government and employer-run
benefit programs for the disabled, chronic pain patients are rewarded with
benefits that encourage them to stop seeking pain relief. Benefits can range
from parking permits for the disabled to complete disability payments for
those no longer able to work. For many people, there is no incentive to find
relief from their pain and certainly not to participate in their own therapy.
Once their pain is managed to such a level where they can lead as normal a life
as can be expected, they may lose their benefits. Therefore, in certain cases,
societal benefits can prevent chronic pain patients from seeking relief.
7


Aging Population. The population is living longer than ever before. This
creates more patients with chronic pain. Older people suffer more from a
degeneration of bones, their nervous system, etc. These realities of an older
generation lead to diseases causing chronic pain.
The cost of managing chronic pain is a concern in todays society. The annual
cost of chronic pain includes the expense of medical diagnosis and treatment,
compensation for lost wages, and lost productivity costs (Tollison 1-5). Chronic
back pain alone is estimated to cost $16 billion annually in the United States. Pain
results in one quarter of all sick days taken, or 50 million in lost workdays a year
(Brownlee 56). This adds to the argument that managing chronic pain is a growing
problem.
Another area that adds significantly to the increased prevalence of chronic pain
is the many barriers to providing effective pain management to patients. This issue is
discussed in detail in chapter five.
Due to a convergence of the changes in attitude toward managing chronic pain
with the increased prevalence of chronic pain, and the media attention generated by
this issue, state legislatures are beginning to take action. Legislatures are addressing
this issue in growing numbers. In fact, prior to 1988 no states had laws concerning
this issue. In the past ten years, 16 states passed laws or resolutions regarding the
treatment of chronic pain. Chapter five discusses this issue further.
8


Effects of Chronic Pain
Pain affects different people in different ways. Symptoms of pain can include
nausea, headache, dizziness, weakness, drowsiness, and diarrhea. Pain can affect a
persons ability to sleep and eat and can elicit strong emotional responses such as
fear, anger, depression, crying, mood swings and suicidal feelings. Worst of all, pain
can impact a persons entire lifestyle, including his or her work, recreation,
relationships, mobility, and degree of autonomy or independence (American Cancer
Society 4-5).
In an article titled The Magnitude of the Pain Problem, Dr. David Tollison
describes a typical chronic pain patient:
More than 75 million Americans suffer chronic, handicapping pain.
These individuals have typically suffered through several years of
agony, have undergone two or more failed surgeries for pain relief,
are restricted in their jobs if not totally unable to work, take various
and multiple medications for pain, experience chronic sleep disturbance
and marital andfamily dysfunction, suffer depression and emotional
distress, and are physically and psychologically depleted (1)
In the case of chronic, ongoing, unrelieved pain, the pain becomes the illness
that is being treated or managed. David Morris offers these real-world examples of
how chronic pain can affect the life of an individual:
What will a crippling disability mean to a mans self-esteem or to his
career? A young woman with arthritis worries whether her pain will
prevent her from living a full life as wife and mother. A working-class
woman already supporting her disabled husbandfears that her family
will fall apart when they discover that even turning on the water tap is
too painful for her to manage. (18)
9


Dr. Angel says that emotional and spiritual problems such as damaged
relationships, loss of work, inability to participate in activities, and depression,
manifest themselves over time in all chronic pain patients. This highlights the need
for help from psychologists, psychiatrists, and social workers as well as a cadre of
other medical experts.
The undertreatment of pain in todays society is not just a problem for the
patient. Chronic pain also affects the patients family and friends. It is difficult both
financially and emotionally for friends and family to care for a person who simply
does not get better. In addition to helping with the medical needs of the patient,
family and friends are impacted by the psychological repercussions and changes in the
patients lifestyle due to chronic pain. Because of chronic pains economic impact on
business (chronic pain results in 50 million lost workdays a year), industry and even
the national health care system ($16 billion annually to treat chronic back pain
patients in the U.S.), the community as a whole is also affected. But it is the patient
who suffers most when pain is undertreated.
Chapter one attempted to provide an overview of the issue of chronic pain and
explain why it is a growing problem. Within this broad and complex issue, the
investigation will focus on 1) barriers and recommendations to effective pain
management, 2) the limitations on the ability of state legislatures to deal effectively
with complex issues such as pain management, and 3) the role state legislatures are
10


taking to remove barriers to managing chronic pain.
11


CHAPTER TWO
METHODOLOGY
Chapter one defined the different types of pain, provided a brief history of
pain management, and explained why chronic pain is a growing problem in todays
society. Chapter two describes the methodology used to investigate the issue of the
role and ability of state legislatures to remove barriers to effective pain management.
My interest in this issue was piqued through my participating in the activities
of the State of Colorados Task Force on Intractable Pain in 1996. The Task Force
was directed to study and provide recommendations to the Colorado General
Assembly on policies or legislation relating to the management of intractable pain. As
the lobbyist for the University of Colorado Health Sciences Center (HSC) and
University Hospital (UH), I met with the chair of the Task Force, State
Representative Marcy Morrison, to discuss the role of the Health Sciences Center in
educating future health care professionals in appropriate pain management.
In assisting Representative Morrison in determining the current level of
education offered at HSC concerning pain management, I met with the Dean of the
School of Medicine, Dr. Richard Krugman, and Dr. Paul Seligman, a professor in the
School of Medicine who teaches a multi-disciplinary course in pain management. I
12


participated in lectures and small group discussions on the issue of pain management
within the School of Medicine and reported on HSCs progress to Representative
Morrison. Throughout the life of the Task Force, I began to identify some of the
barriers to effective pain management and the role that state legislatures are taking to
remove those barriers.
After monitoring the activities of the Task Force, I thought it was unusual that
the state legislature was attempting to address an issue that I thought to be beyond
their scope in terms of their ability to affect change. I observed the various methods
used by both the Task Force and the Colorado General Assembly in attempting to
affect change in this area, both legislative and otherwise. For example, Representative
Morrison told me, as lobbyist for HSC, on more than one occasion, I dont want to
run legislation forcing the School of Medicine to teach more about pain management,
but if you dont do more in that area voluntarily, I will be forced to take on the issue
legislatively. Her concern about the amount and level of education in chronic pain
management that is available to health care professionals prodded the School of
Medicine to make some changes to its curriculum to improve the level of education
about pain management.
After the Task Force completed its work, I decided to research the issue
further to determine if there was enough information to write a thesis on the topic. I
began by researching the issue in a very broad manner; defining chronic pain,
13


identifying the barriers to appropriate pain management, discussing the ethics of pain
management, etc. This broad overview allowed me to review the issue from a global
perspective before zeroing in on a more narrow area of focus for my investigation.
The more I studied, the more I realized the complexity of the issue. I clearly
needed to narrow my focus. Finally, with the help of my thesis advisor, I chose to
specifically investigate the barriers and proposed recommendations to effective pain
management, the limitations on a state legislatures ability to deal with a complex
issue such as pain management, and what state legislatures are doing in this area.
As I said, I began my research with no outline, simply trying to gather
information on every aspect of pain management that I could find. This included
reading countless articles from journals, newspapers, magazines, and other periodicals.
Once I determined a more narrow focus, I went back through the materials and
focused on the information that pertained directly to my investigation. However, the
ancillary material was helpful in providing background information that would be
useful to me later. The next step after studying the issue was to begin interviewing
individuals who have expertise on the issue.
My first interview was with Dr. Ben Rich, a bioethicist at the University of
Colorado Health Sciences Center and a member of the Colorado Task Force on
Intractable Pain. Dr. Rich provided me with his perspective on the issue and outlined
what he thought the positive outcomes and shortcomings were of the Task Force and
14


what he believed the role of a state legislature is in addressing this issue. Dr. Rich also
encouraged me to read two books: The Culture of Pain by David Morris, and The
Nature of Suffering and the Goals of Medicine by Eric Cassell. Morris book was
especially helpful in discussing the ethical and social issues surrounding chronic pain
and its impact on the patient, their family and friends, and society.
After collecting data and background information on the issue of pain
management, I began to focus on the role of state legislatures in addressing chronic
pain. I began by contacting Geoffrey Johnson who works for the Colorado
Legislative Council Research office, the research arm of the Colorado General
Assembly. Mr. Johnson provided staff assistance to the Colorado Task Force on
Intractable Pain and provided me with copies of the written testimony, studies, and
research and background information from other states used by the Task Force. The
material provided me with a valuable overview of what is occurring across the states
on the issue, with special emphasis on Colorado. His assistance in providing me with
boxes of material to review and copy was invaluable.
The material from the Task Force left me with several questions that needed to
be answered that were specific to my investigation. I spoke with individuals at the
American Pain Society and the American Association of Pain Management. The
representatives I spoke to from the organizations provided me with additional
materials describing the role that legislatures have taken to address the issue, including
15


passage of legislation, creation of task forces and pain commissions, and issuance of
guidelines. The members of the these organizations I spoke to also have their own
opinions on the ability and appropriateness of legislatures becoming involved in this
issue. Their opinions vary widely. Some believe that the legislature has no role in
affecting change and that appropriate pain management will only become a reality
when patients demand that it be available. Others believe that legislatures can play a
major role in effecting change by easing regulations and mandating changes in the
medical professions. Each group I spoke to offered a unique perspective and made me
realize that there is plenty of room for debate on this issue. This made me feel more
comfortable about selecting a thesis topic that was not a settled issue.
So as to not bore myself with any one aspect of my investigation, my research
turned back to the issue of barriers to effective and appropriate pain management. I
requested an interview with Dr. Jose Angel, Director of Colorado University
Hospitals Pain Management Center. Dr. Angel was excited to hear about my
selected topic and invited me to the hospital the next day to discuss the issue. This
meeting provided me with a unique experience. When I arrived at the hospital, Dr.
Angel asked if I would interview him in the operating room because he was with a
patient. With much reluctance, and a weak stomach, I agreed. When I entered the
operating room I was met by Dr. Angel who was the anesthesiologist for an operation
that was underway. The man being operated on was having a colostomy. After a
16


quick peek at his opened body, I quickly settled into my seat. Sitting directly
between Dr. Angel and myself sat the head of the man being operated on. Although
the circumstances of the interview made me a little uncomfortable (read nauseas), the
information and perspective I received from Dr. Angel was extremely helpful.
Next, it was back to the legislative side of pain management. With some good
background on the issue, it was time to learn more about the legislative process and
the limitations state legislatures face in dealing with complex issues. Dr. Julie Bell
from the National Conference of State Legislatures provided me with excellent
information during an interview. Much of what she told me was common sense,
especially to someone who was familiar with the legislative process. She discussed
how the entire legislative process was structured to limit their ability to easily make
systemic reform in any area. Dr. Bell also provided me with written case studies of
legislatures attempting to address other complex issues and the barriers they faced.
At a certain point in the process it came time to stop researching and start
writing. It became clear to me that the research portion of my proj ect was coming to a
close because the new material I was collecting was repetitive. Also, the process of
writing allowed me to see where the holes are in my research and allowed me to go
back and do additional research with a more narrow focus. I was no longer thinking
globally. Instead, I was looking for specific material to support claims or provide
background information on a particular aspect of my investigation.
17


Before I began writing, I sat down and outlined the paper as I thought
appropriate. Of course this changed with input from my advisor and others I
interviewed, but it allowed me to start writing. I began by dividing the research
materials into chapters. This way, I only had to focus on the materials that were
relevant to the chapter I was working on rather than become overwhelmed with
reviewing all the material for each chapter. The structure of this thesis is such that
one chapter builds on another. This allowed me to continue my research and
interviews for the next chapter while at the same time I could be writing an earlier
chapter. Again, this way I could move back and forth between research and writing
and not become overwhelmed by working on just one or the other.
18


CHAPTER THREE
BARRIERS AND RECOMMENDATIONS
TO APPROPRIATE CHRONIC PAIN MANAGEMENT
Chapter three defines appropriate pain management and distinguishes pain
relief from pain management. It concludes with a detailed list of current barriers and
proposed recommendations to appropriate pain management.
Appropriate Pain Management
The goal of appropriate pain management is to relieve the pain and suffering
so that patients may lead a normal life. Dr. Angel agrees that this should be the ideal
in pain management. However, he also realizes that it is not realistic for a patient or
physician to believe that all pain and suffering can be relieved. Therefore, a second
goal emerges: the management of a patients pain to the level where they can lead as
normal a life as can be expected in their situation. This may include participation in
normal, everyday activities such as work, recreation, relationships, etc.
Appropriate pain management is difficult because pain elimination is difficult,
says Dr. Angel. As a doctor, you do all you can to allow the patient to do other
things in their life. Because this requires different therapies for each individual
patient, appropriate pain management is unique to each individual and their
19


circumstances and what can be expected of their situation. The main goal for treating
chronic pain patients is to help them manage their pain (Angel). This may require a
long term strategy and ongoing therapy, which probably includes medication.
Managing chronic pain is similar to treating diabetes -- Both the physician and the
patient must become actively involved in the process to help manage the pain.
Patients cannot be bystanders and be expected to be healed (Angel). For example,
after a patient leaves the doctors office, he/she must, on their own, continue to take
medication appropriately, continue with their physical therapy, etc.
Treating chronic pain is not easy for the physician or for the patient.. .If it
was easy, the patient wouldnt be chronic, says Gary W. Jay, MD, medical director
of the Headache and Neurological Rehabilitation Institute of Colorado (Denver
Medical Society 2). Unlike other types of pain, such as acute pain, pain management
for chronic pain does not stop when the patient leaves the doctors office.
Pain Relief vs. Pain Management
Today, patients have willingly handed over to the medical profession the job
of explaining pain. Unfortunately, pain is still a mystery to doctors as well. Despite
enormous advances in biomedical research in the areas of the anatomy, physiology,
and pharmacology of pain, the fact is that no cure for chronic pain has been found, or
even an explanation for its existence in many cases (Morris 19). Lack of scientific
knowledge is still the major barrier to complete pain relief. People believe that science
20


can find a cure. To date, that is not true. This causes a problem, says Dr. Angel,
because so many patients believe this to be true and they clamor and expect to be
cured and free of their pain. The state of the art in pain treatment is in its infancy
(Angel).
Appropriate pain management is not the complete relief of pain because that
is not realistic, but it is the management of a patients pain to the level where they can
participate in everyday activities in their life. Here lies the distinction between pain
relief and pain management for chronic pain patients. Because of limitations in
medical knowledge, complete pain relief is not yet an option. However, there have
been enormous medical advances in the area of pain management. Yet despite these
advances in pain management, chronic pain has reached epidemic proportions in part
due to the factors outlined in chapter one (technology, aging, society, etc.) and in part
due to barriers that prevent appropriate pain management.
Today, there are still many barriers to pain management. However, these
barriers no longer are due to a lack of scientific investigation into effective pain
management. Inadequate pain management is not the result of a lack of scientific
information, says Regina Fink, author of a study on the attitudes of healthcare
professionals in a hospital setting (Fink 2). There has been an explosion in the
research of pain management therapy and assessment. Today, there are many forces
that work to thwart efforts to use these advances for effective pain management.
21


The remainder of this chapter will review the barriers to effective pain
management caused by patient education, health care professionals, health care
organizations, cost, and government and society. Much of this information comes
from a 1994 National Institute of Nursing Research (NINR) report. I also provide
proposed recommendations listed in the References section of this paper for
overcoming many of those barriers from a variety of organizations and individuals.
Barriers to Effective Pain Management
Patients
A lack of knowledge on the part of the patient is a major barrier to appropriate
pain management. For example, many patients are not told, do not remember, or do
not understand what they are told about their pain, its expected course, and treatment
options. In many cases they are not aware that pain relief or appropriate management
is available and that it is their responsibility to communicate their needs to their
physicians. A lack of communication by patients also contributes to unclear
expectations on their part. They unreasonably expect that health care professionals
will automatically address their pain needs without them having to communicate their
needs to them. This communication breaks down when the patients fail to report
incidence of pain, conceal their pain, deny they have pain when they do, underreport
the severity of their pain, fail to request treatment for their pain, or fail to tell their
22


doctors their preferences for treatment.
Fear is also a driving force in cases where patients contribute to a lack of their
own appropriate pain management. Patients often fear what continuing pain will
mean in their lives, or they are afraid of the types of treatment, i.e., injections, side
effects of drugs, or the fear that the drugs will lose their effectiveness. Other patients
fear dependency on drugs or that the drugs they are taking for their pain will alter
their mental ability and will no longer allow them to lead a normal life. Finally, many
patients fear that they will become a burden to their family and friends because of
their chronic pain.
A patients behavior and attitude can also have an impact on how successful
their pain management program is. Some patients refuse to take medicine because
they believe that pain builds character, or that good patients do not bother their
doctors with their pain. Others only take pain medication when their pain becomes
unbearable, rather than as needed to manage the pain. Others believe that as patients,
they are powerless and are completely dependent on their doctors for pain relief.
Education
In medical school, health care providers receive little, no, or incorrect
information on pain and its treatment in their course work (NINR 165). Clinical
practicums and rotations, which build on the courses taken by students studying to be
healthcare professionals, also have little or no emphasis on pain management. This all
23


leads to a lack of knowledge on the part of health care professionals in the areas of
assessing pain, the effects of drugs used in pain management, appropriate dosing, and
the incidence of dependence and tolerance.
Health Care Professionals
Attitudes of health care professionals is critical. Incorrect attitudes or beliefs
concerning pain management can have a devastating impact on a patients pain
management. Some physicians mistakenly believe that a patients pain is being
managed effectively, when in reality it is not. Some physicians believe that complete
pain relief is not a goal or that patients must look like they are in pain before they
should receive treatment. Still others believe that some pain is good for patients or
that those who take narcotics will become addicted.
Another inappropriate belief by health care providers is that treating pain only
masks important symptoms to the real problem. Disagreeing with this statement, Dr.
Angel suggests that although it is possible that physicians whose training did not
expose them to chronic pain issues may see chronic pain as psychosomatic
complaints.. .this may be the case for some chronic pain patients, but it does not
justify labeling all chronic pain patients as such (Angel).
This lack of education and inappropriate attitudes leads to several problems in
pain management practice. Because of these factors, many doctors are uncertain
about when pain exists within a patient and they fail to communicate with a patient
24


about their pain. Other failures include how to use tools to measure pain and read
patient cues concerning their pain. Either that, or they altogether discount what a
patient says about their pain, assuming that they know more than the patient. Some
physicians tend to rely more on their diagnosis than what the patient is telling them
about their pain.
Lack of education also leads to not knowing about alternative methods of pain
management, such as non-pharmacologic strategies. There are several alternative
therapies for relieving pain outside the traditional prescription and non-prescription
medicines. Alternatives include relaxation techniques, imagery, skin stimulation,
massage, nerve blocks, biofeedback, acupuncture and hypnosis (American Cancer
Society 55-57). Although many patients have experienced relief from these methods,
there is skepticism within the medical community and an avoidance by insurance
companies to provide coverage for these alternative therapies.
There are also the liability issues surrounding appropriate pain management.
For example, even though narcotics are the most powerful painkillers available, many
doctors are afraid to prescribe them because they fear prosecution from overzealous
law enforcement agencies, or that they will turn their patients into addicts. In many
cases this leads physicians to undertreating chronic pain patients.
Health Care Organizations
Health care organizations, such as hospitals, contribute in several ways to
25


inappropriate pain management. A major barrier at the organizational level is that
pain management has a very low priority. The organization may not require or offer
to its health care professionals education about pain management, including
information on new drugs or strategies in relieving pain. Or they may not encourage
interdisciplinary collaboration in the area of pain management and may not have
readily available information on effective pain management. These types of
institutional barriers are seen in organizations which have no written standards or
policies on the issue. In these institutions, more than likely, pain management is
mediocre.
Lack of accountability is also an issue within many organizations. Many
organizations fail to hold health care professionals accountable for pain relief or they
only offer legally mandated interventions. These same institutions have not
developed a criteria for pain management in their quality assurance programs or
guidelines. Therefore, they are unable to identify problem areas where pain
management practices could be improved.
Cost
Although physicians have the tools and ability in many cases to control
chronic pain, in the era of managed care, health plans are balking at the cost.
Managed care views pain as a big black hole into which they keep dumping money,
says F. Michael Ferrante, director of the pain-management service at the University
26


of Pennsylvania Medical Center. Treating pain can be very expensive. Doctors say
that they often have to spend weeks haggling with insurance companies for
permission to prescribe pain-relieving drugs, technologies, or surgery, while their
patients suffer.
Charles S. Cleeland, Ph.D., President of the American Pain Society, also
points to healthcare industry cost-savings initiatives that effectively reduce
appropriate treatment for chronic pain patients:
New canons are being invoked that limit the provision of care. These
include demonstrating economic benefit over cost, establishing efficacy,
and insisting on curative versus maintenance treatment. Whatever
the authority, the force of these canons is to restrict rather than to
expand what we can offer to help relieve pain. (1)
Financial disincentives by payors can needlessly limit and bias pain treatment.
Insurance company personnel lack an understanding and acceptance of pain
management which can result in denial of coverage; lack of access to certain pain
management procedures and medication; or use of more expensive and often less
effective treatments.
The Medical Board of California stated in a report, Prescribing Controlled
Substances for Pain, that minorities, women, children, the elderly, and people with
HIV/AIDS are at particular risk for undertreatment of their pain. The report
concluded that third-party payors, with the intention of reducing costs, often restrict
payment for pain-related services, especially for Medicaid and Medicare patients,
27


which are the traditional health care plans for the poor and elderly.
Government and Society
Although no state or federal law actually bans a physician from prescribing
sufficient narcotics to control pain, enforcement of laws intended to combat the abuse
of narcotics have had a chilling effect on the legitimate use of those drugs to alleviate
the unremitting pain associated with chronic pain (Cops and Doctors 27).
While society emphasizes drug treatment for illness, it also provides strict
legislation and mores when addressing the issue of drug abuse by the populace. For
example, critics claim legislation provides no distinction between drug addicts using
drugs and patients using drugs to alleviate pain. Therefore, confusion prevails over
the legitimate and illegitimate use of drugs in todays society. Critics claim that this
confusion affects social attitudes, health care provider prescription and
administration behaviors, and patients receptivity to proposed treatment (NDSTR.
178).
Another example is the governments War on Drugs campaign. This
campaign has resulted in increased restrictions to pain-relieving drugs. For example,
some states have initiated regulations requiring triplicate prescriptions for certain
controlled substances. In addition to the burden of filing the prescription with the
reporting agency, triplicate prescriptions require that physicians must first apply for
the appropriate forms from the reporting agency. One of the results of the
28


burdensome process is a 50% reduction in the prescribing of many of the controlled
substances which are needed for appropriate pain management (NINR 178). This
means that many patients with pain are not receiving appropriate pain drugs.
A societal stigma that has damaged efforts to effectively treat chronic pain is
the issue of addiction. Addiction, says the Colorado Board of Medical Examiners
(CBME), should be placed into proper perspective (Guidelines 4). There is a major
difference between addiction and physical dependence on drugs for pain relief.
CBME guidelines state that physical dependence and tolerance are normal physiologic
consequences of extended opioid therapy and are not the same as addiction.
Addiction is a behavioral syndrome characterized by psychological dependence and
aberrant drug-related behaviors. Addicts compulsively use drugs for pleasurable, non-
medical purposes despite harmful side-effects; a person who is addicted may also be
physically dependent or tolerant.
Pain management organizations say that this misunderstanding of addiction
and mislabeling of patients as addicts leads to unnecessary withholding of
medications. Drug enforcement agencies, however, argue that prescribing high doses
of narcotics (pain-relieving drugs) may lead to addiction or even overdose and should
be closely regulated. In addition, the agencies are concerned that prescribing large
amounts of narcotics will lead to diversion of drugs. However, pain specialists say
that efforts to stop diversion should not interfere with prescribing opioids for pain
29


management (Consensus 3-4).
Finally, many pain-relieving controlled substances are not stocked by
pharmacists for fear of robbery, inadequate prescription demand, fear of addiction,
low profit margin, and difficulty in obtaining supply from wholesalers. This also
translates into limited public access to potent opioids (NINR 178).
The result of these barriers is that the patient in pain becomes the unintended
victim. Pain experts believe there is no reason why government and society cannot
have its efforts to control substance abuse while at the same time enhance efforts to
decrease pain and suffering through the use of drugs and education.
Proposed Recommendations
Below are listed proposed recommendations1 for overcoming many, but not
all, of these barriers.
Patients
Educating patients about care to relieve pain is a critical responsibility of
physicians, hospitals, support groups, public programs, and the media. Most
patients and families need information not only about diagnosis and prognosis but
iProposed recommendations come from several sources listed in the Refences
section, including: the American Pain Society, Dr. Jose Angel, several state task
forces and commissions on pain "management, American Academy of Pain Medicine,
Ezekiel Emanuel, Regina Fink, Colorado Board of Medical Examiners, Robyn Shapiro,
and the American Association of Pain Management.
30


also about what support and outcomes can reasonably be expected. They should not
be allowed to believe that pain is inevitable. Nor should patients be allowed to believe
that all pain can be completely relieved. To these ends, health care organizations and
other relevant parties should adopt policies, or even a consumers guide, regarding
information, education, and assistance related to pain management decisions and
services.
Education
Educators and other health care professionals should initiate changes in
undergraduate, graduate, and continuing education to ensure that practitioners have
relevant attitudes, knowledge, and skills to care for patients in chronic pain. Eveiy
health care professional who deals with patients with chronic pain and their families
needs a basic grounding in competent and compassionate care for these patients. This
could be accomplished by including questions on pain management in health care
licensure examinations and creating uniform expectations through state continuing
medical education requirements.
Health Care Professionals
Health care professionals should commit themselves to improving care for
chronic pain patients and to use existing knowledge effectively to assess, prevent and
relieve pain. When they identify organizational and other impediments to good
31


practice, practitioners have the responsibility as individuals and members of larger
groups to advocate for system change. Included in this is the need to develop
interdisciplinary teams of doctors to address the multidisciplinary needs of chronic
pain patients, preferably in a pain clinic setting. Pain clinics, which offer pain control
team that includes experts from several disciplines, are one place where chronic pain
patients can go to receive this type of interdisciplinary approach to their pain, which
is unique and necessary when dealing with chronic pain patients. Chronic pain is a
psychological-social-physiological problem, and treating it without an
interdisciplinary approach is most often an exercise in futility (Denver Medical
Society 2).
Health Care Organizations
With the assistance of policymakers, consumer groups, purchasers of health
care, health care professionals, medical organizations, and researchers, health care
organizations should develop better tools and strategies for improving the quality of
care and their accountability for care of patients with chronic pain. Although
individuals must act to improve care, systems of care must be changed to support
such action. One proposal is to require health care facilities to demonstrate minimum
standards of pain management for licensure.
Also, within health care organizations, palliative care should become, if not a
medical specialty, at least a defined area of expertise, education, and research. The
32


objective is to create a cadre of palliative care experts who could 1) provide
consultation for colleagues, students, and others, 2) supply leadership for
scientifically based and practically useful undergraduate, graduate, and continuing
medical education, and 3) organize and conduct biomedical, clinical, behavioral, and
health service research.
Cost
The same coalition of groups mentioned above need to work together to revise
mechanisms for financing care so that they encourage rather than impede appropriate
management of chronic pain. Special attention needs to be paid to payment
mechanisms that fail to reward excellent care and create incentives for under- or
overtreatment of those with chronic pain. Also, payors should assess the total cost
of leaving their patients in pain. Effectively managed pain can return patients to
active, productive lives. Such assessment and change can result in lower total health
care costs.
Government and Society
Government and health-related organizations need to reform drug prescription
laws, burdensome regulations, and other practices and policies that impede effective
use of narcotics to relieve pain and suffering. As long as physicians are fearful of
regulatory intrusion, they will continue to undertreat pain. Reform should be
33


accompanied by education to increase knowledge and correct misperceptions about
the appropriate medical use of narcotics and about the biological mechanisms of
narcotic dependence, addiction, and pain management.
In cases where legislation is not possible or is not appropriate, organizations
such as medical examiners or medical societies should develop guidelines for their
members to promote effective pain management. While guidelines do not have the
legal status of laws and regulations, they can explain what activities these
organizations consider to be within the boundaries of professional practice.
Guidelines can alert licensees to unprofessional practices of concern to the
organization and give their members practical information about how to avoid these
problems.
State boards should also put their licensed members on notice that a lack of
basic knowledge about pain, pain assessment, drugs, and treatment is not the standard
for patient care. Otherwise, little will change. Even federal guidelines have not had an
impact in creating change in this area.
Another alternative to state legislation is the creation of state pain
commissions. Pain commissions have been developed in several states to study and
address pain management issues in the healthcare system at the state level. Pain
commissions are ad hoc bodies established by the legislature or the state department
of health to study one or more aspects of the pain problem and develop
34


recommendations. The scope of pain commissions can be broad, and they can also
help put the issue of chronic pain in the public spotlight (Joranson, State Pain
Commissions 2-3).
At the federal level, the nations research establishment should define and
implement priorities for strengthening the knowledge base for chronic pain care. The
National Institutes of Health and other public agencies should take the lead in
organizing workshops, consensus conferences, and other projects that focus on what
is and what is not known about chronic pain care and propose an agenda for
improvement.
Also, the nations regulatory agencies should eliminate delays in the evaluation
of new drugs and devices used to reduce pain. Professional censure should also be
considered in cases of undertreatment of pain. This can be done through legislation
that creates a positive legal duty to effectively treat pain and suffering (Rich
interview). There are clear disincentives for clinicians, i.e., loss of license, which often
prevent adequate treatment of chronic pain. There should also be disincentives for
undertreatment of chronic pain, or, at least, incentives for appropriate treatment, such
as lower rates for liability insurance for physicians who take continuing education in
the area of pain management.
Because physicians can be held liable for overtreating pain, as in the cases of
patients who become addicted or overdose on prescribed narcotics, physicians should
35


be held equally liable for undertreating pain (Rich interview). This echoes David
Morris, who wrote that not relieving pain brushes dangerously close to the act of
willfully inflicting it (191).
Many of these issues have political manifestations that are now being debated
in state legislatures throughout the country. Sixteen states have passed laws or
resolutions related to pain management (see chapter five). Legislation includes
defining chronic pain, commissioning studies, creating advisory committees,
developing therapy guidelines, offering immunity from disciplinary action for doctors
prescribing large amounts of narcotics to pain patients, instituting health facility
restrictions, and addressing the issue of euthanasia. Typically, legislators have been
responding to a) the undertreatment of patients with pain, b) inappropriate medical
board discipline of some physicians, and c) proposed legalization of physician-
assisted suicide.
Chapter three discussed the barriers and proposed recommendations to
effective pain management. Chapter four outlines the limitations state legislatures
face when attempting to address such a complex issue.
36


CHAPTER FOUR
LIMITATIONS ON THE ABILITY OF LEGISLATURES TO DEAL
EFFECTIVELY WITH A COMPLEX ISSUE
As shown in chapters one and three, the barriers to effective chronic pain
management are complex and significant. Chapter four outlines the limitations on the
ability of state legislatures to deal effectively with complex issues, discusses some of
the strategies for introducing complex legislation with the intention of creating
meaningful change, and describes potential legislative outcomes of these efforts. This
chapter also lists the criteria necessary for a state legislature to pass comprehensive
legislation on a complex issue.
Limitations
Everything about the legislative process is set to make it difficult to make
substantive changes to complex societal issues (Bell interview). Whether it is
education reform or addressing the issue of chronic pain management, developing a
coordinated and comprehensive policy through the legislative process with the hope
of creating systemic reform is extremely difficult to accomplish when you are
talking about state legislatures who historically make policy changes incrementally
and in a disjointed fashion (Fuhrman 1). Political scientist Alan Rosenthal likens the
37


political process to an obstacle course, where good ideas have to leap hurdles in
order to become law (161). Attempting to make systemic reform on any complex
issue poses several political challenges, even for the best-intentioned piece of
legislation.
The structure of legislatures is not conducive to large scale reform of a complex
issue. To start with, each bill in most state legislatures goes through a lengthy
committee process. In Colorado, before it becomes law each bill is voted on a
minimum of six times before being submitted to the Governor for consideration: each
bill faces at least one committee in both the House and Senate (often they have to
withstand the scrutiny of the appropriations committee as well as a substantive
committee) and is then voted on twice in both the full House and Senate. If there are
differences of opinion on the bill between the two houses, it goes to a conference
committee made up of members of both houses. The conference committee works out
the changes and then brings it back to the respective houses for final consideration.
Therefore, the process could result in as many as 11 votes on a bill, each providing an
opportunity to amend or kill the bill, before it is presented to the governor for final
passage into law.
If a bill addresses a controversial or complex issue such as education reform, it
will go through many changes as it works its way through the political process. If
passed by the legislature, the bill often is unrecognizable from its original form.
38


Complex bills are prime candidates for being derailed somewhere during the process.
Bill sponsors who manage a bill through the process are always on the lookout for
unfriendly amendments that will change the direction of or gut the bill (Rosenthal
132).
The partisan culture in state legislatures also makes it difficult to reach
consensus on a complex issue. For example, if a Democrat introduces a bill dealing
with a complex issue in a legislature dominated by Republicans, one of three things
may happen: 1) it may be killed, 2) it may be heavily amended to either gut the bill
or change its meaning, or 3) if it is a good idea, the Republicans may kill the bill and
make it their own by reintroducing it under a Republican sponsor. Some legislators
introduce bills simply to sharpen the differences between the two parties by having
legislators of the other party on the record voting for or against a controversial
measure (Rosenthal 127).
Other legislators may introduce a complex bill for philosophical reasons or for
publicity purposes, knowing that the bill will not pass. For example, if a legislator
introduces a bill asking for highway funding for their district and it receives attention
from the media, the sponsor can tell his constituents that he is fighting for their
concerns even if the bill dies. Similarly, legislators often introduce bills out of political
courtesy for another member and are not disappointed when the bill dies.
Time is another limitation for shepherding a difficult measure through the
39


political process at the state level. Although the trend is for state legislatures to have
longer sessions, most state legislatures still meet only part-time, even as little as 30
days a year. Some legislatures meet only every other year. It is not uncommon for a
legislator to cast 1,000 to 1,500 votes during these short legislative sessions
(Rosenthal 152). With so much on the plate, and as bills are added, each bill will
receive less attention. Therefore, with limited time for debate and consideration, and
because there are so many other issues to be debated in the legislature, it makes it
more difficult for a bill that requires much time and debate to make it through the
process. This is why legislators read few of the bills on which they vote. They rely
on what people say, which is the only way to make the workload a manageable one
(Rosenthal 160).
In many cases, it is easier to simply kill a bill or limit the scope of the issue
and address it incrementally over several sessions. Many legislatures depend heavily
on task forces or interim committees to study a complex issue and report back to the
full legislature with recommendations. These groups have more time to study and
debate the issue and reach consensus with a variety of interested parties.
Another reality that legislators must consider when introducing a complex bill
is the leadership decisions that determine which road a bill may follow through the
course of its political existence. Legislative leadership decides in which committees a
bill will be heard and committee chairmen determine when the bill will be heard.
40


These decisions by leadership are very important to the life of a bill. In almost every
state legislature there are the killer committees where bills are sent to die. For
example, in the Colorado Senate it is the State Affairs Committee that is often given
the job of killing bills. The first order of business for a sponsor introducing a bill is to
try and ensure that it is not referred to an unfriendly committee. Once a bill reaches
committee, if it faces opposition by the chairman of the committee, its potential for
passage in most cases is small. If a chairman wants to derail a measure, they are rarely
overridden within committee (Rosenthal 138).
Lack of party loyalty also makes systemic reform on an important issue
extremely difficult. Over recent years party leadership has declined. There are many
reasons for this, including the fact that the trend is toward legislatures becoming more
full-time. Citizen legislatures, where individuals serve for a short time each year
and then return to their regular jobs, are becoming more scarce. With more full-time
legislatures come higher pay, more staff, longer sessions which meet more often, etc.
These changes have brought with them a new kind of state legislator the career
politician.
The problem is that these career politicians believe that the party is there to
help serve their needs and advance their political careers, not vice-versa. Career
politicians are no longer beholden to the party or to party leadership. Often they
have their own agendas and no longer blindly support the party agenda. In cases of
41


the party in power trying to push through legislation that offers systemic reform, it
can no longer automatically count on party loyalty to guarantee that the members of
the party will stick together on an issue (Straayer interview). Years ago it was
unheard of for a member, especially a junior member of a party, to oppose party
leadership. Today, this is no longer the case.
Staff also play a key role in the passage of legislation. Legislative staff are
responsible in many states for performing research on issues for legislators and for
educating members about the issue. They also draft legislation for members. With
term limits in many states, the institutional knowledge that staff have can be quite
important and influential to the political process.
Most bills are analyzed ad nauseam by legislative staff, executive departments,
fiscal committees, state agencies, etc. Besides these groups, private industry and
other special interest groups represented by lobbyists at the legislature are sure to
lobby their position on how a measure may impact their organization or constituency.
Every complex or controversial issue, by its very nature, will have a number of
supporters and opponents.
The fact that there is nothing in the state legislative structure that makes it
easy to solve a difficult or complex problem is considered by many people to be the
purpose of the American legislative system. Supporters of the system believe it
should never be an easy process for legislatures to make large scale change or reform.
42


It should be a difficult and lengthy process to implement systemic reform on a
complex issue. It is hard to have both systemic reform on an issue and have it done
quickly... They are mutually exclusive, says John Straayer, professor of Political
Science at Colorado State University. You cant have systemic reform unless it is
done incrementally. You need patience, he adds (Straayer Interview).
Unfortunately, legislatures are not structured to think long-term or strategically:
Admirable attributes such as restraint and patience are thought to be in
short supply among political leaders, not because of any innate short-
comings, but because the system provides incentives for opposing traits.
The system attracts and rewards action, not restraint, and eagerness, not
patience. (Fuhrman 10)
The road to systemic reform is usually long and full of potholes. It takes a
special kind of legislator to sponsor an important or complex bill, even though it may
not be politically beneficial or expedient (Straayer interview). Many legislators are
drawn to the types of policies that are easily explained to their constituents.
Policies with immediate effects and clear benefits are simpler to explain than longer
term efforts with more diverse or remote benefits (Fuhrman 15).
The impact of term limits on a legislatures ability to address a complex issue
is arguable. In states with term limits, legislators are only in office for a certain period
of time and they want immediate action and are not always interested in addressing
issues of systemic reform because of how long the process may take. This can have
unintended consequences if legislators only focus on short term solutions to difficult
43


problems. However, others may argue that because term limits eliminate much of the
obsession with reelection, legislators can devote more time to tackling difficult issues
which are in the public interest, without having to worry about how many votes the
issue may win them on election day.
With or without term limits, it can be argued legislators have a difficult time
addressing complex issues in need of reform. Due to the structure of a legislature and
the lengthy process a bill must travel to become law, the sponsor must make
compromises to get the bill passed. In the end, the bill that becomes law no longer
resembles the idea with which the sponsor started. The new law usually results in
tinkering around the edges of a complex problem.
Legislators also may simply want to avoid taking on complex or controversial
issues. This can be done in many ways, including enacting vague, do-nothing
legislation.
Strategies For Introducing Complex Legislation
An important mode of decision making in legislative bodies is that of
bargaining -- negotiating, compromising, deal making, log rolling, and so forth
(Rosenthal 155). On major issues before a state legislature which may be
controversial or complex, bargaining is the best way to overcome differences. These
forms of negotiation go on throughout the political life of a complex bill. As a result,
such bills usually will not move forward until all parties sign off on the bill after
44


their concerns have been appropriately addressed. Much of this consensus building is
done before the bill is introduced, either through an interim committee on the issue or
by having the sponsor meet with the affected constituencies to secure their input and
buy-in. After this is completed, the sponsor has a united front lobbying on behalf
of their bill rather than opposing or trying to amend the bill. This eliminates many
hurdles for the bills sponsor.
Finding a strong sponsor or strong supporters for a difficult measure is
necessary for a complex bills survival. In most legislatures there are several
legislators who are considered experts by their peers on certain issues. It is their job
to explain and educate the other members on the issue, especially a complex issue
with which the other members may not be familiar. The experts may have chaired an
interim committee on the issue and can therefore speak authoritatively before the rest
of the legislature. As sponsors of complex measures, it is their responsibility to carry
the message to other legislators. It becomes very difficult if there is a lack of
leadership on a complex issue. In those cases, the complex or controversial bills
usually die under their own weight and because they do not have a champion. It is
extremely helpful if the champion of a difficult issue is in the majority leadership or
has influence over other members of the legislature. Such a bill needs momentum that
can only come from a spokesperson in a strong position.
Another example of finding a champion on an issue is to have a sponsor
45


whose background is in the field the bill is addressing, i.e., a doctor, nurse, or hospital
administrator for a bill addressing chronic pain. A legislators professional
background and experience can offer immediate credibility on an issue. Legislators
turn to fellow members whom they respect and trust... When legislators develop a
reputation for being knowledgeable, members treat their opinion almost like gospel
(Rosenthal 158).
There are other factors that a bills sponsor should consider prior to
introduction of a complex or controversial bill. They need to know the political
leanings of a legislature and the history of that legislatures ability to address complex
issues. For example, many legislatures are unwilling to place mandates on private
industry or local governments. Other states may be unwilling to deviate from their
tradition of a hands off approach to certain issues. Also, the success of certain bills
may be dependent on the economic climate of the state, especially if a bill requires
ongoing funding from the state. Another consideration is the timing of elections. If a
legislator is up for reelection, they may be unwilling to take a stand on a complex or
controversial issue.
Legislative Outcomes
Because legislation which was originally designed to create systemic reform of
a difficult issue often results in merely tinkering around the edges of the issue rather
than creating any real change, critics who oppose using the political system to make
46


these types of changes say that other avenues to reform should be followed. For
example, with regard to education reform critics argue that legislatures rarely develop
standards that are ambitious and challenging. Instead, politically determined
standards are typically not challenging and are minimal in nature (Fuhrman 6). Why?
When standards are set too high, in any area, those who are unable to reach those
standards or who believe they are unattainable will create a political backlash. Also,
with higher standards in any area many times come the demand for additional funding
to implement the changes.
Even for those bills drafted with the intention of creating systemic reform, if
you look back at the action taken by a legislature it may be that the final bill was
limited in scope and resulted in minimal change. The results, therefore, are that when
legislatures take on complex issues and pass legislation, intrusion is minimized by
creating standards or requirements that are already met or exceeded by most parties
affected. Therefore, critics argue, the best thing legislatures can do is to not get
involved at all.
A combination of the many limitations on the ability of a state legislature to
address a complex issue can lead to quick-fix solutions rather than comprehensive
strategies (Fuhrman 18). Legislators can tell their constituents that they took on a
complex issue and passed legislation, regardless of the fact that it offers meaningless
change. They hope that the incremental, meager accomplishments dripping forth
47


from a system they see as hopelessly muddled will at least, in the words of
Hippocrates, do no harm (Fuhrman 18).
Although the reasons cited in this chapter would seem to make it clear to
many legislators that they may want to think twice before introducing any legislation
that seeks to create meaningful change with respect to a complex social issue, it should
be noted that even the smallest change approved by a legislature is a foot in the door.
Once a controversial or complex issue is addressed by passing a law, even laws with
minimal power, it makes it easier to take the next step. Although incremental change
is slow, it can be substantive over time (Straayer Interview).
Besides using it as part of an incremental strategy to removing barriers to
appropriate pain management, there are many benefits of legislatures becoming
involved in the issue by passing laws, even ones with minimal effect. The major
benefit is that many of these laws recognize the legitimate place for narcotics in the
treatment of chronic pain. These laws also present some protection from discipline
for those physicians who dispense narcotics to chronic pain patients. By passing
such laws the issue of effective pain management has received increased public and
professional awareness of the issue. Also, with the intent of the state legislatures no
longer in doubt on the issue, these laws could lead to further investigation of pain
management policies by state agencies, state pain commissions, state medical boards,
and other regulatory bodies that oversee individuals or organizations who play a role
48


in the treatment of chronic pain.
Exceptions to the Rule
Based on the information provided above, because of the limitations on
legislators, the rule is that legislation attempting to implement systemic reform will
only be successful if it is done incrementally and over a long period of time. There are
instances, however, when creating systemic reform quickly in state legislatures may
be possible. In these cases, although a bill may be altered through the political
process, the bills original intent to create real reform remains intact. These are the
potential exceptions to the rules.
Responding to federal mandates. Federal mandates are requirements placed on
states by the federal government. For example, in 1997 the federal government
mandated that states implement their own welfare reform plans if they were to remain
eligible for federal dollars. In Colorado, because there was a time limit on instituting
welfare reform, the legislature worked furiously during the 1997 session to pass
significant reforms to the states welfare system.
Responding to a crisis. Swift action by a legislature on a large and costly issue
will also take place if the issue reaches crisis proportions. An example of this is any
case where there might be a devastating tragedy effecting large numbers of citizens in
the state, i.e., a major flood or other natural disaster. Citizens would demand the
legislature act quickly to assist those affected and restore appropriate infrastructure
49


damaged by the event. These cases usually receive significant media coverage and
impact a majority of the voters of a state, not just a small number of individuals.
When an issue receives significant media attention and is a major concern of their
constituents, there will be immediate action by legislators. Legislators need to see the
link between the issue and voter behavior.
Responding to an important issue whose time has come. An issue whose time
has come can be an issue that draws much attention, for whatever reason, from the
citizens of a state. Education reform is an example of an issue whose time has come
and often demands immediate attention by state legislatures. Most people are
affected in some way by the quality of public education offered in the state. Most
adults have a vested interest that the states children are being well-educated. With
test scores plummeting across the nation, many states are tackling the difficult issue
of education reform in the state legislature.
Having a strong sponsor who will champion the bill through the process. If
the bill has the right sponsor, that may be enough to overcome all the other limitations
that may halt a similar bill by other, less-effective legislators. These legislators, often
by their own power and will are able to ramrod a difficult bill through the process.
Because of this ability, they are often the most effective and respected legislators in
the legislature.
Responding to constitutional mandates and deadlines. The State of Colorado
50


passed a constitutional amendment requiring the State to return to taxpayers any taxes
that exceed the States revenue limits as outlined in the amendment. In 1998, the State
exceeded the revenue limits and had to return the surplus to the citizens. The
legislature held a special three-day session in 1998 to decide how it was going to
refund the surplus. You can bet that if the legislature was not constitutionally
mandated to do this, and if it did not have a deadline for deciding how to refund the
money, it may have taken years for the legislature to make the decision. Instead, it
was done in only three days.
Summary
Because of the many limitations placed on a legislatures ability to effectively
deal with a complex issue, most issues needing comprehensive reform must be done
incrementally and over a long period of time. As I noted, this strategy can have many
benefits. However, there are cases when quick action leading to systemic reform may
be possible. As cited above, comprehensive legislation might pass if it meets one or
more of the following criteria: 1) it responds to a mandate by the federal government,
2) it addresses emergency situations, 3) it is in response to a very important issue
whose time has come, 4) it has an influential legislator as its champion, or 5) it is
mandated by constitution or deadlines.
Chapter five provides an overview of state legislative action on the issue of
pain management and look at two state models. In the conclusion, chapter six,
51


provides a brief summary and then draws conclusions based on the data as to the role
of state legislatures in removing chronic pain and their ability to remove barriers to
managing such pain.
52


CHAPTER FIVE
THE ROLE OF STATE LEGISLATURES TO REMOVE
BARRIERS TO MANAGING CHRONIC PAIN
Matching Criteria with Issue of Chronic Pain
In dealing with complex issues, legislatures may choose a variety of methods.
They can pass legislation or they can act as a catalyst for change or as a facilitator.
Whichever of these they choose, five factors seem to determine whether a legislature
will address the issue at all. Based on how many of the five criteria outlined in
chapter four are met, this will determine the ability of a legislature to deal with a
complex issue.
The five criteria for determining whether or not a legislature might successfully
address a complex issue are: 1) if it responds to a mandate by the federal government,
2) if it addresses emergency situations, 3) if it is in response to a very important issue
whose time has come, 4) if it has an influential legislator as its champion, or 5) if it
is mandated by constitution or deadlines.
Now I will apply this criteria to the issue of managing chronic pain and
determine whether or not a legislature could successfully address this issue. We can
eliminate the first criteria because there is at present time no federal mandate for states
to address the issue of chronic pain. As a general rule, the federal government does
53


not regulate medical practice 2 3. This is a function of the states. As for number two,
although it may be an emergency situation for people with chronic pain and although
chronic pain does have an economic cost to society, it is difficult to label chronic pain
as an emergency situation. Chronic pain does not compare to responding to an
earthquake or tornado ripping through a community. The fifth criteria, similar to the
first, is not an issue because there are no constitutional mandates for a legislature to
address the issue nor are there any associated deadlines.
This leaves legislatures with two possibilities. The first is that chronic pain is
an issue whose time has come. There is evidence supporting this claim. Prior to
1988, no states had laws concerning this issue. As I state below, in the past ten years
sixteen states passed laws or resolutions regarding the treatment of chronic pain.
According to the American Pain Society (APS), legislatures have been responding to
a) the undertreatment of patients with pain, b) physicians who are concerned about
the attitudes of their state medical boards and c) proposed legalization of physician-
subst
detoj
of op:
issued
used
thircj
2 Federal regulations established in the early 1970s govern the prescribing of controlled
inces. In 1974, Congress adopted a law to prohibit physicians from prescribing opioids to
ify or maintain opioid addiction. To clarify the critical distinctions between the treatment
oid addiction and the use of opioids to treat pain, the Drug Enforcement Administration
a regulation in 1974 stating that the law was not intended to interfere with physicians who
Dpioids to treat intractable pain.
n
r
3 A 1991 survey showed that the majority of members of state medical boards would
discohrage a physician from prescribing narcotics for chronic noncancer pain. Further, about one-
:>f state medical board members said they would investigate the practice as a potential
violation of law (APS March/April 1995).
54


assisted suicide (APS March/April 1995 2). The role of physician-assisted suicide in
this debate is discussed later in this chapter.
The APS believes that state legislatures will continue to consider intractable
pain policy. With the national focus on assisted suicide likely to return to the states
following 1996 United States Supreme Court decisions that allows states to decide the
issue, and with the development of model pain legislation by the American Medical
Association, state legislatures may become even more interested in legislative action to
improve pain management (Joranson, Journal of Law 345).
The second possibility for a state legislature to effectively deal with pain
management is if the issue has a strong sponsor or champion. For those states where
pain management is an issue whose time has come and that also have a strong
champion to shepherd legislation through the process the chances of success can be
greatly increased. California and Colorado offer contrasting models and are discussed
later in this chapter.
State Overview
State legislatures are increasingly deciding the legal parameters for appropriate
pain management. In the past ten years 16 states passed laws or resolutions regarding
the treatment of chronic pain (see Figure 5.1).
Most Intractable Pain Treatment Acts (IPTAs) define chronic pain and
include provisions stating that no physician shall be subject to disciplinary action for
55


Figure 5.1. States Having Passed Laws or Resolutions for the Treatment of
Intractable/Chronic Pain (APS Bulletin March/April 1997 and NCSL)
State Year Enacted
CA 1990
CO 1992
FL 1994
GA 1994
MN 1997
MO 1995
ND 1993
NJ 1997
NV 1995
OR 1995
RI 1997
SD 1997
TX 1989
VA 1988
WA 1993
WI 1996
prescribing or administering controlled substances in the course of treatment of a
person for chronic pain. Among other issues, IPTAs also include provisions
concerning the inapplicability of the law in cases where the physician prescribes or
administers controlled substances to persons with a chemical dependency and where
the physician fails to keep complete and accurate records (AMA Aug. 1997).
Examples of the types of state legislation related to chronic pain are shown in
Figures 5.2 and 5.3. Related legislation includes the creation of study committees to
examine the issue, therapy guidelines for treating chronic pain, prescriptive authority
56


Figure 5.2 Chronic Pain Issues Addressed by State Legislation (a/o 1997)
Information Provided by National Conference of State Legislatures
State Studies/ Advisory Commit- tees Defi- nition Therapy Guide- lines Prescrip- tive Authority Treatment Records Disciplin- ary Action Immunity Health Facility Restric- tions Drug Addiction/ Dependency Patient Consent Euthanasia Education of Health Care Providers
CA X X X X X
CO X X X X
FL X X X
GA X
MI X X
MO X X X X X
NV X X ND X X X X X X
NJ X
OR X X X X X X
RI
SD
TX X X X X X X X X
VA X X X
WA X X
WI


Figure 5.3 Issues Addressed by State Legislatures (CLCS)
Studies and Advisory Committees. Create study committees with legislative
membership to examine the issues associated with intractable pain.
Definition of Intractable Pain. Statutory definitions are fairly consistent among the
states and usually read: ... a pain state in which the cause of pain cannot be removed
or otherwise treated and which in the generally accepted course of medical practice no
relief or cure of the cause of the pain is possible or none has been found after
reasonable efforts...
Therapy Guidelines. Requires regulatory boards of health professions with
prescriptive authority to develop uniform guidelines to address opiate therapy for
chronic or intractable pain conditions, in accordance with national standards.
Prescriptive Authority. Authorizes physicians to prescribe or dispense controlled
substances for the treatment of intractable pain.
Treatment Records. Authorize the regulatory board to discipline physicians for not
maintaining accurate records of the purchasing, dispensing and disposal of narcotics.
Immunity from Disciplinary Action. Provisions stating that physicians are not
subject to disciplinary action by the state regulatory board solely for prescribing
controlled substances for the treatment of intractable pain.
Health Care Facility Restrictions. Health care facilities may not restrict the use of
controlled substances prescribed or administered by physicians with staff privileges
at the facility for a person being treated for intractable pain.
Drug Addiction/Dependency. Drug dependency or the possibility thereof is not in
and of itself sufficient reason to prohibit the prescription of controlled substances for
the treatment of intractable pain.
Patient Consent. Requires physicians to provide written notice that must be signed
by the patient concerning the material risks of prescribing a controlled substance.
Euthanasia. The treatment of intractable pain does not authorize euthanasia.
Education for Health Care Providers. Mandates that health care providers with
continuing education requirements must complete courses in pain management as
determined appropriate by the respective regulatory for the health professions.
58


for physicians to dispense controlled substances for the treatment of chronic pain,
and patient consent legislation requiring physicians to provide written notice to
patients concerning the risks of treatment. Some states have more comprehensive
coverage of the issue than others.
The Texas legislature approved the first Intractable Pain Treatment Act
(IPTA) in 1989. The purpose of the new law was to clarify legal ambiguities, bring
Texas into conformity with the federal intractable pain regulation (see footnote 2 on
page 51), and assure that no Texan in need of narcotics for pain relief was denied them
because of a physicians real or perceived threat of disciplinary action from a state
agency. The Texas IPTA (a) provides a definition of intractable pain, (b) authorizes
physicians to use narcotics to treat chronic pain, (c) prohibits health care facilities
from restricting the use of such drugs for chronic pain, and (d) prohibits the Texas
State Medical Board of Examiners from disciplining a physician for using such drugs
in the legitimate treatment of chronic pain.
A new law in Colorado requires insurance carriers to disclose in their contracts
whether coverage under a health plan includes treatment for intractable pain. The law
provides that if a policy is silent on the issue, the coverage shall be presumed. Other
states have passed laws or resolutions to create special committees to investigate the
issue of pain management and forward recommendations to the legislature. Although
the development of curricula for medical schools has traditionally been outside the
59


purview of state legislatures, a few states have taken steps to further educate
physicians in the area of pain management. For example, California requires the
notification of all licensed physicians of pain management guidelines published by the
U.S. Department of Health and Human Services.
Chapter four briefly discusses the benefits of passing these types of laws,
including the fact that they recognize the legitimate place for narcotics in the treatment
of chronic pain and that by passing such laws it draws attention to the issue.
However, these laws also can present some problems for treating chronic pain,. For
example, IPTAs vary from state to state and can create a balkanized approach to pain
management. Another problem with EPTAs is that they are being written by
politicians with input from special interest groups, such as insurance companies,
rather than solely relying on medical experts and patients rights organizations. The
political process is very complex and may not necessarily be the best vehicle for
establishing policy on the treatment of chronic pain patients. And, because the
process itself is political, it is very difficult to determine what may be the long term
consequences of a legislatures actions. For example, after a law is passed, state
agencies are responsible for adopting regulations to codify the treatment of intractable
pain, potentially leading to new issues.
Some states passed laws that define the medical use of narcotics as a therapy
of last resort and require a signed informed consent form in every case. Obviously,
60


this type of restrictions could actually impede rather than enhance access to
appropriate treatment for chronic pain patients.
Rather than adopting IPTAs, some states have approved a simpler model
chronic pain language as a part of other existing statute, such as the states uniformed
controlled substances laws. Although there are no state laws or regulations that
specifically consider the use of narcotics for chronic pain to be an illegitimate practice,
this new language affirmatively clarifies that it is a legitimate medical practice to use
narcotics for intractable pain (APS March/April 1997).
Another form of government response to address the problem of pain
management has appeared recently. State pain commissions are ad hoc bodies
established by the legislature to study one or more aspects of the pain problem and to
develop recommendations for action by the legislature. State pain commissions also
run the risks of having those with an economic interest in pain management negatively
impacting the results of the commission or that policies may be recommended that
favor treatments not supported by the scientific evidence (APS Feb. 1996, 2).
Response to Physician-Assisted Suicide
Physician-assisted suicide (PAS) has played a major role in bringing the issue
of effective pain management to the policy-making arena. According to a U.S. News
and World Report article, pain is one of the principal reasons the sick ask for their
doctors help in dying. And the fear of an agonizing death underlies the support of
61


more than 50 percent of Americans for legalizing physician-assisted suicide (USNWR
56). Opponents of assisted suicide argue that the best antidote to the appeal of
assisted suicide is better treatment for pain. In the belief that many, if not most,
suicides could be prevented if people had adequate pain relief, opponents of assisted
suicide have urged legislation that would improve peoples access to adequate pain
relief.
Following two recent Supreme Court decisions allowing states to address the
issue of PAS and the growing debate that has fueled ballot initiatives in some states,
several state legislatures are using the PAS issue as a catalyst to improve pain
management. The State of Michigan is one example.
In 1992, in response to the actions of retired pathologist Jack Kevorkian who
attended more than 20 suicides up until then, the Michigan legislature established a
Michigan Commission on Death and Dying to develop recommendations on what the
legal status of assisted suicide should be. The commission could not reach consensus
on the issue. However, the commission did make a number of specific
recommendations on issues related to assisted suicide, including the treatment of pain.
Recommendations included 1) that the legislature provide for public education about
the patients right to treatment for pain, 2) improving access to palliative care, and
3) to modify the use of triplicate prescriptions for those with . severe pain.
62


California Model
David Joranson, editor of the American Pain Society Bulletin argues that a
new intractable pain law, by itself, probably will do little directly to change practice
patterns or improve the management of patients pain (APS March/April 1995,16).
However, he does say that in California the legislative sponsor of a recent IPTA and
other supporters have spurred other positive actions to improve pain management in
the state, including an unprecedented Summit on Effective Pain Management.
Below is a history of pain management in the State of California leading up to
the historic summit (State of California 24-26).
1990
Senator Leroy Greene sponsored the Intractable Pain Treatment Act in 1990,
making California the second state to specifically recognize by statute the
importance of the use of controlled substances in the treatment of intractable
pain. The Act authorizes a physician to prescribe or administer controlled
substances to a person in the course of treatment for chronic pain and
prohibits the Medical Board of California from disciplining a physician for
that prescribing or administering.
1992
In December 1992, a professional symposium on pain management, including
regulatory impediments, was held at the University of California at San
Francisco.
Senator Robert Presley sponsored a resolution that established the Controlled
Substances Prescription Advisory Council (Council) to examine the triplicate
prescription program, alternate methods of monitoring and enforcing the laws,
and regulations governing drug diversion.
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1993
Senator Leroy Greene sponsored legislation in 1993 that requires the Medical
Board of California to ensure that its licensees are made aware of the
Intractable Pain Treatment Act and federal clinical practice guidelines for the
treatment of acute, post-surgical, and cancer pain. The bill passed.
Assembly Member Jack OConnell sponsored Assembly Concurrent
Resolution (ACR) 34 in 1993. The resolution directs the Medical Board to
conduct and complete a survey of medical school curricula to determine
whether medical students receive adequate training in pain management and
palliative care of the terminally ill. The resolution also directs the Board to
determine whether physicians and surgeons adequately understand pain
management and palliative care for the terminally ill and to report their
recommendations to the legislature for modifications in medical school
curricula to ensure physicians and surgeons have adequate training in this area.
In December 1993, the Council issued a landmark report, recommending the
implementation of electronic monitoring of controlled substances prescriptions
in place of the triplicate prescription program and numerous reforms of laws,
regulations, and practices governing drug diversion monitoring, investigation,
and enforcement. It recognized the importance of using controlled substances
for medical purposes and the problem of undertreating pain as well as the
problem of abuse of controlled substances.
In early 1993, a forum on pain management and regulatory issues was
proposed and was in initial planning stages at the Department of Consumer
Affairs, when the Medical Board of California's task force issues its report.
In February 1993, the University of California at Los Angeles held a
symposium on barriers to effective health care; in October 1993, a similar
program entitle Cancer Pain, Opiates and the Law was held at the California
Cancer Center in Fresno. In november 1993, a similar program was held at
Cedars Sinai in Los Angeles, at which time the Southern California Cancer Pain
Initiative was organized.
During 1993, the Medical Board of California established a task force on
appropriate prescribing. Its report recommended that a pain forum be held
and that the Board create a statement on the need for effective pain
management. [The draft statement was circulated to Summit attendees, and
the final statement was adopted in May 1994; the Board has adopted
Guidelines for Pain Management; the Board of Registered Nursing also
adopted a policy and curriculum guidelines on pain management; the Board of
Pharmacy also did the same.]
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Assembly Member Richard Polcano sponsored Assembly Bill (AB) 2155 in
1993 which would have established a pain management committee to, among
other things, clarify standards for appropriate procedures and techniques for
the management of acute, chronic, or intractable pain, study the impact of the
triplicate prescription program on prescribing and dispensing for pain, and
examine the adverse impact of the undertreatment of pain.
The Governor vetoed Ab 2155 but agreed that the proponents of such a
committee made: .. a compelling argument that the medical community and
law enforcement community need to work together in a cooperative fashion to
make certain patients are receiving medically necessary pain treatment... .
The Governor directed the State and Consumer Services Agency to establish a
committee with representatives from various health boards to work with the
Attorney General . . on appropriate pain management procedures and
recommendations on how to overcome the obstacles that contribute to
inadequate pain management.
1994
The March 18, 1994 Effective Pain Management Summit is the result of the
Governors mandate, prompting from Senator Leroy Greene and
Assemblyman Richard Polcano, and a culmination of the many other activities
and legislation described above.
The Medical Board of California, along with the California Medical
Association, the Board of Pharmacy, the Board of Dental Examiners, the
Board of Registered Nursing, the Department of Consumer Affairs, and the
State and Consumer Services Agency became sponsors of the Summit on
Effective Pain Management.
The Summit helped to identify public policy issues relating to the management
and treatment of chronic pain within Californias health care, regulatory, and law
enforcement environment. More than 120 health care practitioners, professional and
public educators, representatives of professional schools and associations, and health
care consumers met to identify and recommend solutions to legal, professional, and
educational barriers to effective pain management (Summit Report 1).
65


The participants reached consensus on several non-legislative
recommendations, including the need to:
Inform patients that they are entitled to quality pain management.
Establish accountability in the health care system for the assessment and
management of pain.
Ensure that health care coverage includes pain management services and
medications.
Accelerate the education of the public, patients, regulators, and health care
professionals about pain management.
In addition to the above recommendations, the summit participants provided
the following statement concerning legislative involvement:
Our legislators should, provide continuing leadership for pain-
management by assessing the values of laws, regulations, andpolicies
concerning the prescribing, dispensing, or administering of controlled
substances. Legislators should strike a balance between the efficacy of
identifying and controlling abuses, the scope of the problem, and inter-
fering with legitimate medical care. (Summit Report 2)
Summit participants also reached consensus on the following specific
recommendations for legislators to consider:
Replace the state requirement for a triplicate prescription form with electronic
monitoring of narcotics prescriptions that can foster better, more effective
pain management and better diversion detection.
Revise laws and regulations to reflect the current practices of those involved in
pain management.
Eliminate the apparent prohibition on prescribing controlled substances to
those with a history of drug abuse.
Evaluate mail-order restrictions on drugs, including limitations on the number
of doses, and the impact of such restrictions on patient well-being.
Identify funding sources for the Food and Drug Section of the California
Department of Health Services to eliminate delays in the evaluation of new
drugs and devices.
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Ensure that individuals who are prescribed narcotics for chronic pain are not
denied employment or discharged solely based on results of employer-based
drug tests.
Create, by statute, a positive legal duty to effectively treat pain and suffering.
Legislate pain management education as a requirement for licensure.
Healthcare facilities should demonstrate a minimum standard of pain
management.
When the final report was approved, the Effective Pain Management Summit
Planning Committee within the California Department of Consumer Affairs assigned
responsibility for implementation of individual recommendations to the appropriate
groups and entities. This oversight committee, consisting of the regulatory boards,
was responsible for the overall implementation. The American Pain Society said the
State of Californias actions to make pain management a priority are exemplary.
Although there has not been a comprehensive report outlining what actions
took place following the summit, research shows that there has been some significant
follow-through of the recommendations by both the legislature and other
organizations involved in the summit.
In May, 1994 the California Medical Board adopted a statement on
Prescribing Controlled Substances For Pain Management. It is the first formal
statement of its kind in the nation made by a licensing board (Medical Board, July
1994 4). In July, 1994 the Medical Board adopted guidelines based on the policy
statement. In addition to these actions, the Board provided information to all state
physicians about new clinical practice guidelines for pain management that have been
67


prepared by a panel of experts. The Board also developed guidelines to help
physicians avoid investigation if they appropriately prescribe substances for pain
management. The new guideline states that No physician shall be subject to
disciplinary action by the board for prescribing or administering controlled substances
in the course of treatment of a person for intractable pain. The Medical Board
created the requirements to complement Senator Greenes Intractable Pain Treatment
Act of 1990.
The Medical Board also worked with the Drug Enforcement Administration,
the Bureau of Narcotic Enforcement, the Office of the Attorney General, the Board of
Pharmacy and its own investigators in an attempt to develop policy and guidelines
based on the physicians diagnosis and treatment program rather than amounts of
drugs prescribed.
According to Candis Cohen, Information Officer for the California Medical
Board, both the Board of Pharmacy and the Board of Registered Nursing also took
action on the issue of pain management. The Board of Registered Nursing established
guidelines for managing pain and implemented them in all Registered Nurse (RN)
programs in the state and the Board of Pharmacy put out a brochure to all its
members (Cohen Interview). Ms. Cohen also said that in California there has been a
reversal on the part of regulators to hold harmless those physicians who treat chronic
pain patients.
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On the legislative front, in 1996 Senate Bill 402, sponsored by Senator Leroy
Greene passed into law. The Act establishes the Patients Bill of Rights for effective
pain management. It provides that a patient has a right to a referral to a physician
who is willing to prescribe narcotics, authorizes a physician who prescribes narcotics
to prescribe any dosage necessary, and requires physicians who treat patients with
chronic pain to register with an organization designated by the Secretary of health and
Welfare or the Attorney General.
Colorado Model
To respond to the unmet needs of people with long-term chronic pain, and
because of the opposition to Physician-Assisted Suicide (PAS) by many
policymakers in Colorado State Representative Marcy Morrison, starting in 1996,
decided to drive the legislative agenda on the issue of effective pain management.
However, because she was not in a leadership position and because there were no
other legislators who stepped forward with her on this issue she was limited in her
strategy to make pain management an issue at the legislature. Prior to 1996 the
Colorado legislature had only passed minimal legislation concerning pain management.
Because of the human and monetary costs due to inadequate pain management
Rep. Morrison wanted consensus on issues related to pain management before
introducing legislation. In 1996 Rep. Morrison sponsored House Joint Resolution
(HJR) 1023. The Resolution created the Interdisciplinary Task Force on Intractable
69


Pain. The resolution passed. The purpose of the task force was to study and
provide recommendations on policies or legislation relating to the management of
intractable pain.
The resolution noted that many patients with chronic pain suffer severe pain
and are seeking more effective methods of alleviating that pain. The resolution stated
that the under treatment of intractable pain often occurs for many reasons, including
fear of liability and exposure to professional discipline on the part of health care
providers or concerns regarding the possibility of addiction of patients to strong
narcotic drugs.
The resolution established an interdisciplinary task force with members
representing hospice care, physicians, medical and nursing schools, the field of
medical ethics, nursing, and home care nursing, physical therapy, health maintenance
organizations, health insurance carriers, patients, patient advocated, and family
members of patients who have suffered intractable pain.
The committee was authorized to consider the following issues relating to
chronic pain management: strategies to improve knowledge in the healthcare
community about effective pain management, the effect on health care costs of pain
management in reducing hospital stays and side effects from surgery, health care
providers liability or exposure to professional discipline for inappropriate pain
management, legal distinctions between pain management and euthanasia or physician-
70


assisted suicide, whether medical practice laws should be clarified to facilitate pain
management, whether concerns regarding addiction of patients to pain medications
lead to unnecessary suffering by patients, and methods of facilitating interdisciplinary
approaches to pain management.
The resolution specifically prohibited the task force from proposing measures
legalizing euthanasia or physician-assisted suicide.
The Task Force met four times during the summer of 1996. Based on the task
forces findings, it recommended three bills and one House Joint Resolution to the
Colorado General Assembly for introduction during the 1997 session. The three bills
passed into law and the House Joint Resolution was passed.
Bill A Access to pain management specialists. Bill A requires an insurer
offering a managed health care plan to disclose whether the plan includes coverage for
the treatment of chronic pain. If the insurer does not indicate such information on the
policy, it is presumed the coverage is included.
Bill B -- Prescriptions in emergency situations to hospice patients. Bill B
permits pharmacists to dispense prescriptions without written authorization from the
physician in emergency situations involving hospice patients as long as such
dispensing is consistent with federal law on emergency prescriptions.
Bill C Unprofessional conduct and intractable pain. Bill C ensures that
licensed physicians would not be disciplined by the Board of Medical Examiners
71


solely for prescribing controlled substances for patients with intractable pain. Bill C
also provides a definition of intractable pain.
Resolution A Incentives for continuing education. Resolution A encourages
medical malpractice insurance carriers to provide incentives for physicians to attend
pain management training classes.
In the summer of 1997 the task force reconvened for an informal meeting to
assess the amount of progress make in improving pain management in Colorado. The
task force was pleased with its efforts and by the fact that all the legislation it
recommended passed. Rep. Morrison stated that this legislation will help provide
Colorado with a framework for our medical community to address pain management
and emphasize a more humane and comfort focused treatment.... these bills will
create a process for addressing intractable pain while examining liability issues,
addiction concerns and professional discipline laws.
Comparison
Colorado and California represent a contrast in styles and effectiveness in
addressing the issue of pain management. The State of California provides a good
example for other states on how to put pain management on the policy agenda of a
state. This effort required the right combination of preparation, opportunity,
leadership, and timing. Californias approach is more comprehensive than Colorados,
perhaps because in California two of the criteria were met, i.e., it was an issue whose
72


time had come and it had influential supporters, while Colorado only had the first.
These and other factors led to the different approaches to removing the barriers to
appropriate pain management.
In Colorados case, a single legislator drove the legislative agenda because she
believed pain management was an issue whose time has come. In large part, Rep.
Morrison said she was responding to the opposition to physician-assisted suicide
(PAS) and the undertreatment of people with chronic pain. On the issue of PAS,
Rep. Morrison believes that to limit the number of requests for PAS society needs to
do a better job managing the pain of chronic pain patients.
At the time the legislation was introduced, although Rep. Morrison was a
member of the majority party and the vice-chair of the House Health, Environment,
Welfare and Institutions Committee, she did not hold any key leadership position and
was a junior member of the legislature. She was also the only champion at the time in
the legislature with an interest in the issue. These facts limited her ability to gamer
votes for a more comprehensive piece of legislation. She realized these limitations and
smartly narrowed the scope of her legislation to something that she believed was
passable. She also effectively used the task force to crystallize her concerns and
bolster her argument before her colleagues in the legislature. The task force made up
of experts gave her argument credence.
In California, several pain-related bills passed prior to the convening of the
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summit in 1994. The first major bill passing into law was the Intractable Pain
Treatment Act in 1990. The bill was sponsored by Senator Leroy Greene, a nearly
30-year veteran of the state legislature in 1990. According to his Chief of Staff, Alex
Ives, Senator Greene was a lone wolf on the issue in 1990. For him, Ms. Ives said,
the issue was personal because his wife had terminal cancer (Ives Interview). This bill
and other bills, coupled with the efforts on behalf of improving pain management of
the healthcare community and other parties, led to the bill sponsored by Assembly
member Richard Polcano creating a committee to study the issue and make
recommendations. A combination of leadership in the legislature and the leadership
shown by the Governor after vetoing Assemblyman Polcano's bill created a climate
for change in the policy arena. This was the catalyst for bringing together interested
parties that would hopefully lead to comprehensive change.
Both states used a task force or summit to gather recommendations. However,
in Colorado the task force did not have the leadership behind it that the summit did in
California. Therefore, in Colorado the task force was forced to limit the scope of its
recommendations. Another difference was that in Colorado the task force limited its
activities to recommending legislation. In California the summit participants made
recommendations to the legislature, regulators, consumers and caregivers, healthcare
professionals, payors, law enforcement agencies, and manufacturers. Because
representatives from each of these groups participated and because the participants
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realized they had the support of the Governor and the legislature, they may have been
more optimistic and daring about creating comprehensive change than in Colorado.
Although certain members of the task force in Colorado wanted more forceful
and comprehensive recommendations to come out of the process, the committee
agreed to recommend legislation had a chance to actually pass. The results were three
bills and a resolution that offered small changes in policy with a longer term strategy
being that the issue would be pursued through the legislative process incrementally
and over time.
Rep. Morrison realized that the issue of appropriate pain management, while
important and possibly even an issue whose time has come in Colorado, did not meet
the level of criteria outlined in chapter four necessary to create comprehensive change
through the legislative process in a swift manner. However, at Rep. Morrisons
prompting, the legislature did begin to take an incremental approach to addressing the
issue of pain management by passing all four measures.
Before the task force convened for the first time, one of its members
prophetically asked, one could argue that every step helps, but in what is sure to be
a long and protracted effort, is this an issue worthy of state support? Rep.
Morrison certainly believed it was. Rep. Morrison saw this initial legislation as a first
step that would assist the medical community to better address the issue of pain
management. In addition, she saw it as the first step in a long process that would lead
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to addressing related issues such as liability issues, addiction concerns and
professional discipline laws.
California was able to be more comprehensive than Colorado because in
California the issue met two of the criteria outlined in chapter four. First, it was an
issue in California whose time had come. This was evident from the level of
recognition and support the issue received from both the state government and the
groups involved in the summit, which is discussed earlier. In Colorado, although
chronic pain could be considered an issue whose time had come, it did not have a
strong enough champion or enough external support to push for more comprehensive
change.
The results in Colorado were minor changes in policy with the hope that an
incremental strategy will create change by a series of small victories over several
years. The results in California were that after the legislature took the lead on the
issue, a variety of government and non-government groups rallied together to set up a
framework for future change that may be more comprehensive than any one of the
parties involved could have done by itself. In California, the recent actions of the
legislature, the Medical Board, and other regulatory agencies and boards have shown
that reform is taking place.
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CHAPTER SIX
ANALYSIS AND CONCLUSION
Chapters one and three define chronic pain and the impact it has on individuals
and society. They also offered a list of barriers and recommendations to appropriate
pain management. These barriers included a lack of knowledge and unreasonable
expectations by patients and health care professionals, poor education and attitudes in
the area of managing chronic pain, managing chronic pain being too low a priority for
health care organizations, financial disincentives by insurers for physicians to manage
chronic pain, and burdensome rules and regulations by state and federal government.
Recommendations to overcoming those barriers included improved education
for patients and health care professionals, a new commitment by health care
professionals to use available knowledge to manage chronic pain, charging health care
organizations to develop better tools to manage chronic pain, revising mechanisms for
financing care so that managing chronic pain appropriately is encouraged rather than
impeded, and having government reform drug prescription laws, burdensome
regulations, and other practices and policies that impede effective use of narcotics to
relieve chronic pain.
Chapters four and five outline the limitations on state legislatures in dealing
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with a complex issue and the exceptions to the rule that may allow legislatures to
create comprehensive reform. Limitations include the structure of legislatures which
make it difficult to develop a comprehensive plan because legislatures make major
policy changes incrementally, the political process which offers many opportunities
to kill or amend a complex bill, partisan politics, time constraints of part-time
legislatures to deal with a complex issue, overcoming leadership decisions that may
decide the fate of a bill, and the potential impacts of term limits.
Exceptions to the rule that may allow legislatures to effectively deal with
complex legislation were that the issue 1) responds to a mandate by the federal
government, 2) addresses emergency situations, 3) is in response to a very important
issue whose time has come, 4) has an influential legislator as its champion, or 5) is
mandated by constitution or deadlines. Finally, chapter five provides an overview of
what state legislatures are doing in the area of pain management and examine the
contrasting strategies of two state efforts.
Based on the evidence, conclusions can be made about the role of state
legislatures in removing chronic pain and their ability to remove barriers to managing
such pain. The data suggests that a state legislature can have a role in removing some
of the barriers to providing appropriate pain management. The types of barriers they
can remove include those that the government created, including disciplinary action
against physicians solely for prescribing controlled substances for the treatment of
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chronic pain and other burdensome regulations.
In addition, legislatures can provide certain mandates that lead to removing
barriers, i.e., mandate pain management education as a requirement for licensure, create
by statute a positive legal duty of health care professionals to effectively treat pain
and suffering, and require health insurance companies to provide coverage for pain
management. Legislatures can also create incentives to remove other barriers,
including requesting insurance companies to provide lower premiums to physicians
who take pain management education courses.
Legislatures can also use its bully pulpit to help educate the public, patients,
regulators, health care professionals, and other state agencies about appropriate pain
management.
The ability of a legislature to remove barriers to managing chronic pain is a
separate issue. The ability of a legislature to remove barriers is tied to the criteria
outlined in chapter four. It seems that since emergencies and federal and
constitutional mandates are lacking, what is needed is a combination of external
pressure and an influential sponsor. This is what the research suggests. The
California model shows that a combination of external pressures and influential
sponsors and supporters can lead to change.
In states such as Colorado where the issue of chronic pain meets very few of
the criteria necessary to allow a legislature to pass substantive reform it may be
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difficult to create any comprehensive reform. However, a review of the Colorado
model shows that if a state like Colorado still wants to address the issue legislatively,
an incremental strategy over a long period of time may have to suffice.
These findings are important because they reveal that no legislature has
effectively been able to remove the multitude of barriers to managing chronic pain
through legislation alone. However, as in the case of California, the state legislature
has a role and the ability to bring about change. It was able to act as a catalyst and
facilitator for change by using its bully pulpit to bring together interested parties,
including patients, insurers, health care professionals, health care organizations,
government, and regulatoiy bodies. California provides hope that collectively these
groups can both develop and implement a strategy, one that includes legislative action,
that will remove many of the barriers that are currently in place that make it difficult
for patients to receive appropriate pain management.
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