Dear President Trump,
For several years the prescription drug epidemic has ravaged communities across the United States. During that time, the Drug Enforcement Administration (“DEA”) has aggressively pursued enforcement actions against the regulated industry. Despite admirable efforts to curtail the epidemic through enforcement actions, prescription drug abuse continues to be a public health crisis. There have been many solutions put forth in the past several months. These solutions, while well-intended, failed to address the root causes of the epidemic – overprescribing of controlled substances. Mr. President, this is a unique opportunity for you to reset our approach to this crisis. As a first step, we need to reassess the enforcement-first approach of the past several years.
Before I go further, I would like to make a few things very clear.
- I have a tremendous amount of respect for law enforcement. My father was a police officer for more than 24 years and I greatly admire the law enforcement personnel I had the pleasure of working with in my 12 + years at the Department of Justice.
- While many of the recent past administrators of DEA came from DEA and law enforcement backgrounds, this is not a criticism of the work they did. This is also not a criticism of DEA’s and state and local law enforcement’s approach to addressing the issue. Rather, this is about taking a different approach to combating the prescription drug abuse epidemic.
Now that I have gotten that out of the way, let me explain myself. The prescription drug abuse epidemic has continued in this country for more than a decade. The Office of National Drug Control Policy, DEA, and others have repeatedly stated that enforcement alone will not solve the problem. Refreshing in this day and age, I think that is something that we can now all agree on. What we can’t seem to agree on is how to make real measurable progress in addressing the root causes of prescription drug abuse and to stop prescription drug abuse from turning into addiction.
Reassessing the enforcement first approach and perhaps appointing someone from outside of the law enforcement community as the next Administrator would be a good first step in making measurable progress. Enforcement has been DEA’s and state and local law enforcement’s default response to prescription drug abuse. Let’s be fair. Reporting arrest and seizure statistics are an easy way to show progress, right? Unfortunately, that is not the case with the prescription drug abuse epidemic. DEA has long discussed the balloon effect of its enforcement efforts. That is to say, you squeeze the balloon in one area and another area grows. Despite the realization that addressing controlled substance diversion operates in nearly the same manner, enforcement first seems to be the agency’s go-to response. Again, an observation and not a criticism.
DEA is first and foremost a law enforcement agency. DEA personnel say as much at conferences – “enforcement is our middle name.” It has shown to be uncomfortable in its own skin when operating as a regulator. Instead of looking at everyone as a potential “bad guy,” a regulator must collaborate, educate, and work with the regulated industry, using enforcement as a last option and for the most egregious misconduct. Moreover, a regulator must understand how its regulated industry operates and should stay on top of technological and process advancements in the regulated industry.
Perhaps it is time for a change in addressing prescription drug abuse. An approach that is in line with how the Food and Drug Administration (“FDA”) operates would be a good starting point. Publishing guidance on its website that it provides to registrants should be a no-brainer. Currently, DEA will meet with industry groups and respond to individual letters from registrants seeking guidance. On a daily basis DEA is providing guidance to registrants, but does not share such guidance on its website. Same for when DEA speaks to industry groups. A more educated registrant population will lead to a more compliant registrant population, which will ideally lead to less diversion of controlled substances.
Another approach may be to appoint a DEA Administrator, from outside the ranks of law enforcement, who may bring a different perspective to the job. I am not advocating bringing someone who will treat industry with kid gloves. We need someone with a willingness to work with DEA registrants first, while using enforcement as a last resort. Of course, there will always be the most egregious cases where enforcement as the primary tool must be used. But, as DEA has acknowledged, only a very small percentage of the approximately 1.7 million DEA registrants are actively engaged or otherwise involved in the diversion of controlled substances. DEA registrants fund the Diversion Control Division through registration fees. Instead of using the registrant community’s money for additional enforcement mechanisms, such as tactical diversion squads or Special Assistant United States Attorneys, perhaps non-enforcement options can be funded to better educate and collaborate with the registrant community. I understand that DEA does provide some education and training for registrants, but it can certainly do more. Prescribers of controlled substances should be DEA’s main focus.
As a law enforcement agency, DEA is also understandably opaque when it comes to managing the regulatory aspect of its Congressional mandate. Perhaps a leader outside of law enforcement will move the agency to be more transparent with the regulated industry. Appointing someone without a law enforcement background is obviously not the silver bullet that will eradicate prescription drug abuse. It is, however, time for a new perspective and a new approach to addressing prescription drug abuse. Taking a different approach when choosing DEA leadership and regulating DEA registrants may be a good first step.