Pain Management: Texas Legislative and Regulatory Update

Tex. Rev. Civ. Stat. Ann. art. 4495c (West 1996). The Pain Act states that “no physician may be subject to disciplinary action by the board for prescribing or administering dangerous drugs or controlled substances in the course of treatment of a person for intractable pain.” “Intractable pain” is defined as “a pain state in which the cause of the 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.” The Pain Act is not part of the Texas Medical Practice Act (MPA). This provides strategic benefit in Texas because MPA is subject to the Texas sunset law, which requires that it be reviewed every ten years and either approved or modified accordingly. By not being a part of MPA, the Pain Act avoids this requirement and thus avoids being deleted.

Tex. Admin. Code tit. 22, §§ 170.1-.3 (1996).

Medical Board of California, “Guideline for Prescribing Controlled Substances for Intractable Pain,” adopted unanimously July 29, 1994.

“Narcotic Drug Prescribing,” Texas State Board of Medical Examiners Newsletter, Fall/Winter (1988): At 6.

“Narcotics and Pain Relief,” Texas State Board of Medical Examiners Newsletter, Spring/Summer (1992): At 1.

Stasney C.R. Hill C.S. , “Pain Control and the Texas State Board of Medical Examiners,” Texas State Board of Medical Examiners Newsletter, Spring/Summer (1993): At 1.

Ralston D.L. , Texas Physicians' Perceptions of Regulatory Barriers to Adequate Pain Treatment (Houston: University of Texas Health Science Center, unpublished M.P.H. thesis, 1995). The hypothesis tested in my thesis was that the propensity of a physician to treat pain adequately will be lower among those physicians who perceive themselves to be at risk of regulatory sanctions, regardless of their knowledge level. The results were statistically significant when comparing the dependent variable (the propensity of a physician to treat pain adequately) and the independent variable (those physicians who perceive themselves to be at risk of regulatory sanctions). A physician respondent who perceived himself to be at risk of regulatory sanctions was less likely to treat pain adequately. Indeed, among individuals who perceived the risk of regulatory sanctions to be low, 39 percent had a high propensity to treat pain adequately. Among individuals who perceived the risk of regulatory sanctions to be high, 22 percent had a high propensity to treat pain adequately. Thus, individuals who thought the risk of regulatory sanctions was low were 1.8 times more likely to have a high propensity to treat pain adequately. However, the strength of this association as measured by the phi coefficient was not very high. This suggests that other variables may affect a physician's propensity to treat pain adequately. This finding is further elucidated by the fact that the hypothesis cannot be accepted because the control variable, “knowledge factors,” was associated with the dependent variable, “propensity to adequately treat pain.” The greater a physician's knowledge level as expressed by the five knowledge level factors surveyed in this questionnaire, the more likely the physician was to treat pain adequately. This suggests that knowledge is one of the variables, along with perception of risk of regulatory sanction, that affects a physician's propensity to treat pain adequately. Efforts to increase adequate pain treatment, therefore, might be affected by increasing physicians' knowledge in the areas surveyed, that is, respiratory depression, dosage, and route of administration.

Tex. Rev. Civ. Stat. Ann. art. 4495b, §§ 1.02(7)(C), 1.02(7)(E) (West 1996).

Id. at §§ 3.08(4)(F), 3.08(18) (emphasis added).

Tex. Rev. Civ. Stat. Ann. art. 4495, § 3.08(4)(E) (emphasis added).

Cleeland C.S. , “Factors Influencing Physician Management of Cancer Pain,” Cancer, 58 (1986): 796–800.

26 C.F.R. §§ 151.90, 151.67 (1939).

21 C.F.R. § 1306.04(a) (1996).

U.S. Department of Justice, Physician's Manual: An Informational Outline of the Controlled Substances Act of 1970 (1990) (interpreting 21 U.S.C. §§ 801 et seq.).

See 21 C.F.R. § 151.90 (1939) (emphasis added).

21 C.F.R. § 151.167 (emphasis added).

51 Fed. Reg. 13759 (1914) (emphasis added).

See 21 C.F.R. § 1306.04(a) (1996).

21 U.S.C. § 801 (1996) (emphasis added).

21 C.F.R. § 1306.04(a) (1996) (emphasis added).

United States v. Rosen, 582 F.2d 1032 (5th Cir. 1978).

See United States v. Green, 511 F.2d 1062 (7th Cir.), cert. denied, 423 U.S. 1031 (1975); United States v. Varma, 691 F.2d 460 (1st Cir. 1982); United States v. Rogers, 609 F.2d 834 (5th Cir. 1980); United States v. Moore, 423 U.S. 122 (1975); United States v. Jamieson, 806 F.2d 949 (10th Cir. 1986); United States v. Fellman, 549 F.2d 181 (10th Cir. 1977); United States v. Dunbar, 614 F.2d 39 (5th Cir.), cert. denied, 447 U.S. 926 (1980); 582 F.2d 1032; United States v. Warren, 453 F.2d 738 (2d Cir.), cert. denied, 406 U.S. 944 (1972); White v. United States, 399 F.2d 813 (8th Cir. 1968); Brown v. United States, 250 F.2d 745 (5th Cir.), cert. denied, 356 U.S. 938 (1958); United States v. Brandenburg, 155 F.2d 110 (3d Cir. 1946); United States v. Daniel, 3 F.3d 775 (4th Cir. 1993); United States v. Roya, 574 F.2d 386 (7th Cir.), cert. denied, 439 U.S. 857 (1978); United States v. Bartee, 479 F.2d 484 (10th Cir. 1973); United States v. Rosenberg, 515 F.2d 190 (9th Cir.), cert. denied, 423 U.S. 1031 (1975); United States v. Hooker, 541 F.2d 300 (1st Cir. 1976); United States v. Chin, 795 F.2d 496 (5th Cir. 1986); and United States v. Kaplan, 895 F.2d 618 (9th Cir. 1990).

See 423 U.S. 122.

See 423 U.S. 122; 423 U.S. 1031; and United States v. Hoffner, 777 F.2d 1423 (10th Cir. 1985).

See 582 F.2d 1032; United States v. Behrman, 285 U.S. 280 (1922); 453 F.2d 738; 155 F.2d 110; United States v. Abdallah, 149 F.2d 219 (2d Cir.), cert. denied, 326 U.S. 724 (1945); United States v. Jackson, 516 F.2d 46 (5th Cir. 1978); 479 F.2d 484; 895 F.2d 618; United States v. Larson, 507 F.2d 385 (9th Cir. 1974); United States v. August, 985 F.2d 705 (6th Cir. 1992); and 423 U.S. 122.

See 423 U.S. 122; 479 F.2d 484; 806 F.2d 949; 507 F.2d 385; and 149 F.2d 219.

See Rogers, 609 F.2d 834; Fellman, 549 F.2d 181; Dunbar, 614 F.2d 3; 582 F.2d 1032; 285 U.S. 280; Webb v. United States, 249 U.S. 96 (1919); 453 F.2d 738; White, 399 F.2d 813; 576 F.2d 46; 985 F.2d 705; and 149 F.2d 219.

See 609 F.2d 834; and Daniel, 3 F.3d 775.

See 806 F.2d 949; and United States v. Potter, 616 F.2d 384 (9th Cir. 1979), cert. denied, 449 U.S. 832 (1980).

See 149 F.2d 219.

See 582 F.2d 1032; 149 F.2d 219; Bartee, 479 F.2d 484; Hoffner, 777 F.2d 1423; and Larson, 507 F.2d 385.

See 582 F.2d 1032; 479 F.2d 484; and 507 F.2d 385.

See McBride v. United States, 225 F.2d 249 (5th Cir.), cert. denied, 350 U.S. 934 (1955).

See Green, 511 F.2d 1062; Jamieson, 806 F.2d 949; Daniel, 3 F.3d 775; and United States v. Harrison, 651 F.2d 353 (11th Cir.), cert. denied, 454 U.S. 1126 (1981).

See 582 F.2d 1032; 507 F.2d 385; 479 F.2d 484; and August, 985 F.2d 705.

See Dunbar, 614 F.2d 39; 582 F.2d 1032; Warren, 453 F.2d 738; 479 F.2d 484; Rosenberg, 515 F.2d 190; Hooker, 541 F.2d 300; Chin, 795 F.2d 496; and Abdallah, 149 F.2d 219.

See Hoffner, 777 F.2d 1423.

Rosen, 582 F.2d at 1035.

Tex. Rev. Civ. Stat. Ann. art. 4495b, §1.03(b) (West 1996).

Balla v. Texas State Board of Medical Examiners, 693 S.W.2d 715 (Tex. App. 1985); Texas State Board of Medical Examiners v. Guice, 704 S.W.2d 113 (Tex. App. 1986); and Dotson v. Texas State Board of Medical Examiners, 607 S.W.2d 36 (Tex. Civ. App. 1980), rev'd on other grounds, 612 S.W.2d 921 (Tex. 1981).

693 S.W.2d 715.

Id. at 716.

In Texas State Board of Medical Examiners v. Guice, 704 S.W.2d 113, Dr. Leroy Guice prescribed Ritalin, Fastin, Ionamin, and Dalmane without performing a medical examination or discussing a medical history. Patients, who were actually investigators for the Texas State Board of Medical Examiners, obtained the drugs saying they needed something to help them stay awake. The court upheld the board's revocation of the physician's license for prescribing drugs in a nontherapeutic manner.

In Wood v. Texas State Board of Medical Examiners, 615 S.W.2d 942 (Tex. Civ. App. 1981), the court relied on Dotson (612 S.W.2d 921) to vacate the suspension of Dr. Eugene Wood's medical license because the state board had failed to take expert testimony “to contradict the unassailed testimony of Dr. Wood regarding the therapeutic nature and dosages of the drug prescribed.” Id. at 943.

Hoover v. Agency for Health Care Administration, 676 So. 2d 1380 (Fla. Dist. Ct. App. 1996).

Id. at 1381.

Id. at 1382.

Id. (emphasis added).

Id. at 1383 (emphasis added).

Id. (emphasis added).

Tex. Admin. Code tit. 22, § 170.3(6) (1996).

Id. at § 170.3(4) (emphasis added).

See Ralston , supra note 8.

See Id.

See Id.

The text of the three statutory provision is as follows. Tex. Rev. Civ. Stat. Ann. art. 4495d (West 1996) Continuing Medical Education in Pain Treatment A physician licensed under the Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes) who submits an application for renewal of a license that designates a direct patient care practice and whose practice includes treating patients for pain is encouraged to include continuing medical education in pain treatment among the hours of continuing medical education completed to comply with Section 3.025(a)(2), Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes). Tex. Health & Safety Code § 102.009 (West Supp. 1997) Powers and Duties of Council (c) The Texas Cancer Council and/or its contracted projects shall maintain for physicians a listing of available continuing medical education courses in pain treatment offered by accredited Texas medical and osteopathic schools, hospitals, health care facilities, or professional societies or associations for physicians. Tex. Educ. Code § 61.785 (West Supp. 1997) Pain Treatment Medical Education Course Work (a) Each medical school shall determine the extent to which pain treatment medical education course work is meeting the instructional elements described in Subsection (b) and is offered to all students enrolled in medical schools. (b) Pain treatment medical education course work should include instruction in: (1) pain assessment in adults, children, and special populations, including elderly and impaired individuals; (2) pain anatomy, physiology and pathophysiology, and pharmacology of opioid and nonopioid analgesic drugs, including pharmacokinetics and pharmacodynamics; (3) the advantages and disadvantages of various methods of drug administration, side effects, treatment outcome, and the outcome of behavioral and other psychological therapy for pain; (4) the psychological, social, economic, and emotional impact of malignant and nonmalignant acute and chronic pain on patients; (5) indications for and outcomes of anesthetic and neurosurgical pain-relieving techniques, including nerve blocks and neuroaugmentative and neuroablative techniques; and (6) the outcome of treatment of pain emanating from a damaged nervous system and neuropathic pain.