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Pain Management: Texas Legislative and Regulatory Update

Published online by Cambridge University Press:  01 January 2021

David L. Ralston
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My purpose is to provide an update on recent Texas regulatory and statutory changes adopted , since the passage in Texas of the Intractable Pain Treatment Act in 1989 (Pain Act) (see Table l). First, I describe the rules adopted by the Texas State Board of Medical Examiners (TSBME) that authorize physicians to prescribe opioids for the treatment of pain (Pain Rules) (see Table 2). Second, I detail recent statutory changes that pertain to education of physicians and medical students about pain treatment. All of these changes attempt to create a better legal environment for the treatment of chronic pain in Texas.

Before describing the Pain Rules adopted in Texas, the question Why adopt rules, rather than simply ask TSBME to issue a policy statement? must be answered. Many states, most notably California, have issued policy statements that clarify for physicians the parameters within which they may treat pain? Policy statements, unlike administrative regulations, do not have the force of law.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 24 , Issue 4 , Winter 1996 , pp. 328 - 337
Copyright
Copyright © American Society of Law, Medicine and Ethics 1996

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References

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.Google Scholar
Tex. Admin. Code tit. 22, §§ 170.1-.3 (1996).CrossRefGoogle Scholar
Medical Board of California, “Guideline for Prescribing Controlled Substances for Intractable Pain,” adopted unanimously July 29, 1994.Google Scholar
“Narcotic Drug Prescribing,” Texas State Board of Medical Examiners Newsletter, Fall/Winter (1988): At 6.Google Scholar
“Narcotics and Pain Relief,” Texas State Board of Medical Examiners Newsletter, Spring/Summer (1992): At 1.Google Scholar
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.Google Scholar
Id.Google Scholar
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.Google Scholar
Id.Google Scholar
Id.Google Scholar
Tex. Rev. Civ. Stat. Ann. art. 4495b, §§ 1.02(7)(C), 1.02(7)(E) (West 1996).Google Scholar
Id. at §§ 3.08(4)(F), 3.08(18) (emphasis added).Google Scholar
Tex. Rev. Civ. Stat. Ann. art. 4495, § 3.08(4)(E) (emphasis added).Google Scholar
Cleeland, C.S., “Factors Influencing Physician Management of Cancer Pain,” Cancer, 58 (1986): 796–800.3.0.CO;2-#>CrossRefGoogle Scholar
26 C.F.R. §§ 151.90, 151.67 (1939).CrossRefGoogle Scholar
21 C.F.R. § 1306.04(a) (1996).Google Scholar
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.).Google Scholar
See 21 C.F.R. § 151.90 (1939) (emphasis added).CrossRefGoogle Scholar
21 C.F.R. § 151.167 (emphasis added).Google Scholar
51 Fed. Reg. 13759 (1914) (emphasis added).Google Scholar
See 21 C.F.R. § 1306.04(a) (1996).Google Scholar
21 U.S.C. § 801 (1996) (emphasis added).Google Scholar
21 C.F.R. § 1306.04(a) (1996) (emphasis added).Google Scholar
United States v. Rosen, 582 F.2d 1032 (5th Cir. 1978).Google Scholar
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).Google Scholar
See 423 U.S. 122.Google Scholar
See 423 U.S. 122; 423 U.S. 1031; and United States v. Hoffner, 777 F.2d 1423 (10th Cir. 1985).Google Scholar
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.Google Scholar
See 423 U.S. 122; 479 F.2d 484; 806 F.2d 949; 507 F.2d 385; and 149 F.2d 219.Google Scholar
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.Google Scholar
See 609 F.2d 834; and Daniel, 3 F.3d 775.Google Scholar
See 806 F.2d 949; and United States v. Potter, 616 F.2d 384 (9th Cir. 1979), cert. denied, 449 U.S. 832 (1980).Google Scholar
See 149 F.2d 219.Google Scholar
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.Google Scholar
See 582 F.2d 1032; 479 F.2d 484; and 507 F.2d 385.Google Scholar
See McBride v. United States, 225 F.2d 249 (5th Cir.), cert. denied, 350 U.S. 934 (1955).Google Scholar
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).Google Scholar
See 582 F.2d 1032; 507 F.2d 385; 479 F.2d 484; and August, 985 F.2d 705.Google Scholar
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.Google Scholar
See Hoffner, 777 F.2d 1423.Google Scholar
Rosen, 582 F.2d at 1035.Google Scholar
Tex. Rev. Civ. Stat. Ann. art. 4495b, §1.03(b) (West 1996).Google Scholar
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).Google Scholar
693 S.W.2d 715.Google Scholar
Id. at 716.Google Scholar
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.Google Scholar
Hoover v. Agency for Health Care Administration, 676 So. 2d 1380 (Fla. Dist. Ct. App. 1996).Google Scholar
Id. at 1381.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id. at 1382.Google Scholar
Id. (emphasis added).Google Scholar
Id. at 1383 (emphasis added).Google Scholar
Id. (emphasis added).Google Scholar
Tex. Admin. Code tit. 22, § 170.3(6) (1996).CrossRefGoogle Scholar
Id. at § 170.3(4) (emphasis added).Google Scholar
See Ralston, , supra note 8.Google Scholar
See Id.Google Scholar
See Id.Google Scholar