Mr. Chairman, Senator Leahy and members of the Senate Judiciary Committee, I thank you for holding this hearing today and allowing me to come before you to speak on H.R. 2260, The Pain Relief Promotion Act, and the important implications it has for the treatment of pain and other end of life symptoms including clarifying the use of federally-controlled substances by caregivers throughout the country. Senator Lieberman and I have offered identical legislation to address these issues, S.1272 the Pain Relief Promotion Act. It is my understanding that today we will also be discussing the substitute amendment to H.R.2260 which Chairman Hatch is offering to this legislation. This substitute amendment goes even further to ensure that the needs of patients who are suffering in pain and other distressing symptoms will be adequately treated. It does so without undermining the intent of the original legislation and I believe improves the original legislation to even more clearly address the role of the federal government regarding federally-controlled substances.

It has been nearly three years since Senator Lieberman and I first offered legislation to make clear Congress’ intent when it comes to employing federally-controlled substances especially in end-of-life situations, That bill, the Lethal Drug Abuse Prevention Act, had 23 bipartisan cosponsors. A hearing was held on the bill in the Senate Judiciary Committee and it was passed out of the Committee by a vote of 11-6, on September 24, 1998. Identical legislation was also offered in the House by Chairman Hyde which, following a hearing, passed out of the House Judiciary Committee. However, due to the few legislative days left in the session it was not brought to either the House or Senate floor.

Immediately following the close of session in 1998 we began work on new legislation to respond to the concerns of the medical community on the impact of the Lethal Drug Abuse Prevention Act. We started from scratch in re-drafting legislation with three goals: 1) make clear under the Controlled Substances Act the federal standard that no one can use federally-controlled substances for assisted suicide, and do so without creating new regulatory authority. 2) promote a greater understanding of pain management and palliative care both in the medical community and the law enforcement community. 3) gain the support of the National Hospice Organization, and American Medical Association, who previously opposed the bill.

On June 23, 1999, Senator Lieberman and I introduced legislation that accomplished those three goals, S.1272, the Pain Relief Promotion Act.

First, it clarifies federal law on the use of controlled substances. The bill:

+ Provides an additional “safe-harbor” for physicians by establishing, for the first time in federal law, that under the Controlled Substances Act the relief of pain and discomfort is a “legitimate medical purpose”, even if the large doses used in treating pain may increase the risk of death (sometimes called the principle double effect). However, the intentional use of these drugs to cause death or assist in causing death is not allowed.

+ Restore the current federal policy against assisted suicide in 49 states to all 50 states.

+ Provide for the education of federal, state, and local law enforcement personnel in how to better accommodate the appropriate and necessary use of controlled substances for pain and discomfort.

Second, the bill provides federal support for training and research. It:

+ Establishes in the Agency for Healthcare Research and Quality (AHRQ), a program of “Palliative Care Research and Quality” to develop and advance scientific understanding of pain management and palliative care and make available that information.

+Provides in Health Research Services Act (HRSA), $5 million per year for grants and contracts to medical schools, hospices and other sites to train physicians and other health practitioners in the treatment of pain and associated symptoms, especially at the end of life.

Third, it is supported by over 40 organizations including:

+ American Medical Association, National Hospice Association, Hospice Association of America, American Academy of Pain Management, American Society of Anesthesiologists, American College of Osteopathic Family Physicians, Americans for Integrity in Palliative Care, Catholic Health Association, Physicians for Compassionate Care, Vitas Healthcare Corporation, National Right to Life, Christian Medical & Dental Society, Eagle Forum, Hope Hospice and Palliative Care (Florida), National Conference of Catholic Bishops, Union of Orthodox Jewish Congregations of America, Not Dead Yet, Oklahoma State Medical Association, and Aging With Dignity.

The House and Senate both have taken action on the Pain Relief Promotion Act. In the House, hearings were held in the House Judiciary Committee, the bill was passed out of both the House Judiciary Committee and House Commerce Committee, and on October 27, 1999, the bill was passed in the House by a vote of 271-156. In the Senate a hearing was held in the Health, Education, Labor and Pensions Committee on October 13, 1999. Following passage of H.R. 2260 in the House, the bill was referred to the Senate Judiciary Committee. Today we are again meeting to hear testimony on this bill and the substitute amendment to be considered. It is my hope that this will be the final hearing on this issue and the bill will be passed out of the Judiciary Committee and sent to the Senate floor where it will be debated, passed, and signed into law.

It is essential that Congress does not remain silent. Congress has acted with one voice previously to ensure that no federal program, facility or employee is involved in assisted suicide. Enactment of the Pain Relief Promotion Act will ensure that federal authorization to prescribe DEA-regulated drugs does not include the authority to prescribe such drugs to specifically cause a patient’s death.

Since 1914, the federal government has had jurisdiction over dangerous drugs. In 1970 Congress passed the Controlled Substances Act which gave responsibility for such substances to the Drug Enforcement Administration (DEA) and charged them with the responsibility of overseeing these narcotics and dangerous drugs. The Controlled Substances Act states that these federally-controlled drugs can only be prescribed for a “legitimate medical purpose” and only by a physician who has a DEA registration. It is important to understand that while a physician receives his license to practice medicine from state medical boards, he receives a separate DEA registration to prescribe federally-controlled substances from the federal government. In 1984 Congress strengthened the Controlled Substances Act out of concern over the use of prescription drugs in lethal overdoses. Nowhere in the history of the Controlled Substances Act has death ever been considered a “legitimate medical purpose.” However, on June 5, 1998, Attorney General Janet Reno issued a decision which overturned the previous DEA ruling that assisted suicide, intentionally causing a patient’s death, was not a legitimate medical purpose and therefore federally-controlled substances could not be used for that purpose. The Attorney General concluded the Controlled Substances Act does not authorize adverse action against a physician who prescribes a controlled substance to assist in a suicide in compliance with the Oregon law. She stated that Congress did not “intend to override a state determination as to what constitutes legitimate medical practice in the absence of a federal law prohibiting that practice.”

The Attorney General failed to point out that federal law is clearly intended to prevent the use of these drugs for lethal overdoses, and contains no exception for deliberate overdoses approved by a physician. Nor does that law contain any exception for giving dangerous drugs to terminally ill patients -- on the contrary, the federal government has successfully argued before the Supreme Court against allowing any such loophole in its drug laws. Every federal agency, health program, health care facility and health professional is forbidden to treat assisted suicide as though it were part of legitimate medical practice. Also, President Clinton maintains his longstanding position against assisted suicide and any Federal support for that procedure.

In spite of the Attorney General’s determination the fact is that federally-controlled substances are exactly that....federally-controlled. Under present federal law, the Controlled Substances Act, these federally-controlled substances can only be prescribed for a “legitimate medical purpose” in the usual course of professional practice, to promote public health and safety. A lethal overdose, otherwise known as assisted suicide, has never been considered a legitimate medical purpose and certainly does not promote public health and safety.

When Oregon passed a state law to allow physician assisted suicide, it had that right. But it did not have the right to change or amend an existing federal law. If Oregon were to legalize the use of heroin for any purposes that wouldn’t change the federal law prohibiting its use. The Controlled Substances Act is a federal law governing all 50 states, not 49.

The Attorney General’s letter carving out an exception for Oregon to use federally-controlled substances for assisted suicide was in direct opposition to her own Drug Enforcement Administration and is also in direct conflict with 29 years of practice under the Controlled Substances Act. Present law states these drugs can be used only for a “legitimate medical purpose.” The Pain Relief Promotion Act makes clear, for the first time, that aggressive treatment of pain is a legitimate medical purpose and provides new legal protections, an additional safe harbor, for physicians to use these medications to alleviate pain and discomfort. It also restates that the use of these federally- controlled drugs to cause death or assist in causing death is not a legitimate medical purpose. The Pain Relief Promotion Act does not overturn any state law. The bill does not tell States they can’t pass their own laws on assisted suicide - they can - it just clarifies that those State laws have no effect on this long standing federal law.

The substitute amendment offered by Chairman Hatch goes even further to clarify that the bill will neither pre-empt state laws or standards for pain management and palliative care, nor allow states to pre-empt Federal law regarding controlled substances. It also clarifies that the Attorney General does not have the authority to create federal standards (dosage requirements) for the practice of pain management and palliative care. It makes certain that all types of pain including acute, chronic, and end-of-life, can be addressed in the education, research, and grant programs for pain management and palliative care. Additionally, it highlights the importance of pain management and palliative care by declaring the decade beginning in 2001 the “Decade of Pain Control and Research.”

The Pain Relief Promotion Act has strong bipartisan support with currently, 42 cosponsors. In addition to the underlying support for the bill the AMA has reaffirmed their support for the substitute amendment and the Pain Care Coalition (made up of the American Pain Society, American Academy of Pain Medicine, and American Headache Society) has confirmed their support for the substitute. The Pain Relief Promotion Act and the Chairman’s substitute amendment gets the federal government back in the business of caring for people in pain rather than participating in causing their death. To date, over 42 people in Oregon have died using federally-controlled substances to cause their death. It is time the federal government ends its involvement in this tragedy. The Pain Relief Promotion Act is good for physicians, it is good for patients and it is necessary to restore the federal law.

I ask your support for this bill and the substitute amendment, and I thank you for the opportunity to appear before you this morning on this critical issue.