In one of the first lawsuits of its kind, the American Civil Liberties Union has filed suit against the Medical Licensing Board of Indiana challenging the constitutionality of a new rule requiring some pain patients to submit to mandatory drug testing.
The lawsuit, filed in federal court in Indianapolis, seeks a court order to prohibit the Licensing Board from requiring patients who receive certain levels of opioid pain medications to sign a “Treatment Agreement” that consents to drug testing at least once a year.
The rule took effect in Indiana last month, but does not require drug tests until January 1, 2015. Physicians who don’t comply with the rule risk losing their license to practice medicine in Indiana.
Similar drug testing rules and policies for pain patients are already in effect around the country at private medical practices and pain management clinics.
“The Fourth Amendment protects all of us from government-mandated searches unless there is cause or justification. The mandatory drug testing simply goes too far,” said Kenneth J. Falk, Legal Director of the ACLU of Indiana.
The lawsuit, which seeks class action status, was filed on behalf of James Wierciak, who’s been prescribed medications for more than 18 years to treat chronic pain, according to the ACLU.
The drug tests are aimed at detecting “inconsistent medication use patterns or the presence of illicit substances,” according to an emergency rule posted on the Licensing Board’s website.
The tests are required for patients taking more than 60 opioid containing pills a month or a morphine equivalent dose of more than 15 milligrams a day for more than three consecutive months.
The rule exempts patients in a terminal condition or those enrolled in hospice or palliative care programs.
Bryan Corbin, a spokesman for the Indiana Attorney General’s office, said the rule was adopted by the Licensing Board after extensive input from health care providers and regulators.
“The Medical Licensing Board — with the assistance of the Prescription Drug Abuse Prevention Task Force which includes medical professionals, and the Indiana State Medical Association — has undertaken reasonable efforts to curb the dangerous overprescribing and diversion of addictive opioids by establishing new rules for physicians,” Corbin said in an email.
According to the Indiana Prescription Drug Abuse Task Force, over 700 Hoosiers died of unintentional drug poisoning in 2011. Most of the cases involved opioid painkillers.
“There are a lot of dangerous drugs being prescribed by physicians but it’s only those people with chronic pain receiving opioids that are required to submit to random drug screens,” said Mark Collen, a California artist and pain patient who became an advocate for chronic pain sufferers after years of living with neuropathic pain caused by a herniated disc in his lower back.
“I see it as physicians discriminating against those with chronic pain — mostly out of fear — but many still violate their patients’ 4th Amendment protections against unreasonable searches and seizures. I have written a number of articles on this issue and believe drug testing of people with chronic pain constitutes suspicionless and warrantless searches. The ACLU is correct in filing their lawsuit,” said Collen, who is the founder of PainExhibit.org, an online exhibit for artists with chronic pain.
In a 2012 article published in the Journal of Pain & Palliative Care Pharmacotherapy, Collen wrote that profits, not patient care, was a driving force behind the soaring number of drug tests given to people with chronic pain. He has also questioned the efficacy of drug tests in determining whether a patient is complying with their treatment program.
A large study conducted by the drug screening company Ameritox in 2012 found than one in three urine samples (35%) from pain patients contained no evidence of a prescribed opioid medication – indicating that patients are reluctant to use painkillers, the drugs are not needed, or that the drugs are being diverted and used by other people.