The DEA and the Opioid Crisis
It’s difficult to know how the Drug Enforcement Administration is adjusting tactics following media scrutiny about a new law’s impact on its regulatory authority, namely what is called “immediate suspension orders.” These orders allow the agency to freeze suspicious shipments of prescription opioids involving manufacturers, distributors, pharmacies, and doctors.
The Ensuring Patient Access and Effective Drug Enforcement Act of 2016, enacted last year requires a higher standard before DEA can issue these orders, raising questions about how such a measure sailed through Congress and was signed into law by President Obama in the middle of a raging drug epidemic. While some see red flags, with the drug industry exerting undue influence in getting the measure passed, others say immediate suspension orders vested too much authority in federal law enforcement powers, citing civil liberty and due process concerns.
Nevertheless, an October Washington Post – “60 Minutes” investigation highlighting DEA whistleblowers prompted Tom Marino, President Trump’s drug czar nominee, to withdraw his name from consideration, and now Congress is considering bills to restore powers under the Controlled Substances Act to freeze more suspicious opioid shipments.
Communicating with the public, press, and Congress in a clear and complete manner will go a long way to restoring confidence that there is a strong law enforcement response to the worst drug crisis in our nation’s history. Despite the increased scrutiny of the opioid epidemic, and more recently the inner workings of the DEA, there are more questions than answers at this point.
Acting DEA Administrator Robert Patterson participated in a press conference last month in which he was asked about suspension orders. He provided few answers. Explaining the agency’s diversion control division “moved to other tools in the administrative toolbox,” as the law sharply curtailed the use of immediate suspension orders, the director highlighted other regulatory powers still authorized. But he did not provide specifics to back up his claim that one alternative tool, known as “voluntary surrenders,” is stemming the diversion of prescription opioids for illicit use on par with suspension orders.
Similarly, it’s difficult to find current data on immediate suspension orders. Numbers provided by the auditing office of Congress are reported only through 2013, and conservative media outlets cited that analysis in asserting that use of the enforcement measure was on the decline anyway. More recent years, as the opioid epidemic spiked, are missing from the Congressional report. The Government Accountability Office report relies on DEA to provide data. It would help inform the debate if recent numbers were available so we can all see if DEA can do its job with less unilateral power.
Members of Congress are likewise frustrated as bills are being considered to restore DEA’s ability to issue suspension orders. Rep. Greg Walden (R-Ore.) asked the DEA’s head of diversion control if Congress should subpoena the agency in order to get documents related to suspension orders after repeated efforts to obtain them. Sen. Claire McCaskill (D-Mo.) wants to know why the DEA refuses to let a critic of the law testify before her committee. John J. Mulrooney, II the agency’s chief administrative judge, wrote an article for the Marquette Law Review outlining how legislation diluted the effectiveness of immediate suspension orders.
Even the data that does exist sheds little light on how immediate suspension orders actually work in practice. The 2015 GAO report, which seems to be the best online source for DEA administrative actions, describes agency processes but offers little analytics that could be used to determine strategy. For example, how many opioid shipments were frozen according to key parts of the supply chain? Widely covered in the press is the example of Kermit, West Virginia, a town with a population of 400 that received 9 million hydrocodone painkillers. How many other Kermits are there? More important than knowing the number of orders issued is the volume of opioids pulled from the market. What is the breakdown according to hydrocodone, morphine, and oxycodone?
This information is sitting on peoples’ desks at the DEA. It certainly was when former DEA personnel and whistleblowers came forward to discuss their successes cracking down on illicit distribution in earlier years. Congress could overturn a law that many say harmed the DEA’s ability to take down illegal drug markets. Then again, maybe DEA can actually work around existing law and use other enforcement powers, or as agency personnel like to say “other tools in the toolbox.” Until we see the tools, how they work, and their results, Congress is going to have a difficult time drafting an effective bill. As for DEA leadership, providing a candid, public assessment of various enforcement actions will ensure a legal and regulatory framework that recognizes opioid abuse as a national health emergency while enabling legitimate commerce.
Matt Mossburg is a recovering opioid addict and former Maryland legislator active in seeking public policy solutions to the epidemic.