Missouri Shows the True Meaning of the "Show-Me" State: Missouri's Unfounded Hesitation to Enact a Prescription Drug Monitoring Program.

• Author: Masse, Emma
• Position: NOTE

1. INTRODUCTION

   Drug overdoses in the United States have more than doubled over the last two decades, resulting in more deaths due to opioid overdoses than to vehicle accidents. (1) In 2014, there were over 28,000 deaths due to opioid abuse. (2) Out of the total number of drug overdoses in 2013, illicit drugs were not the primary culprits. (3) Rather, over half of the deaths were associated with prescription drugs. (4) Opioids contributed to 42,249 deaths in 2016 and were responsible for the vast majority of accidental overdoses, which more than quintupled since 1999. (5) As prescription drug deaths became an epidemic, forty-nine states as of early 2017 joined to combat this trend by enacting prescription drug monitoring programs. (6) After New Hampshire became the forty-ninth link in the chain in June of 2012, (7) the "Show-Me" state stood alone from 2012 to 2017 in the battle against prescription drug abuse. (8)

   All fifty states have now enacted a prescription drug monitoring program ("PDMP"). (9) A PDMP is a statewide database that monitors the prescriptions distributed within a given state. (10) PDMPs have been shown to act as useful tools in a variety of ways. For example, they aid in decreasing prescription drug abuse through intervention, and they are powerful mechanisms to help physicians realize if they are unknowingly treating addicts searching for unnecessary painkillers (11) (this is known as "doctor shopping"). (12) Because prescription drug abuse is one of the most pressing drug-related problems in the United States, (13) PDMPs have the ability to save lives. Between the years of 1999 and 2014, drug overdose fatalities increased by 386%, (14) and out of the 28,000 opioid abuse-inflicted deaths alluded to above, over 1000 of the lives claimed belonged to Missourians. (15) This is no surprise considering Missouri's controlled substance death rate is far higher than the national average. (16)

   This Note examines the reasons why Missouri took so long to enact any form of PDMP legislation. Part II of this Note introduces the background of PDMPs as they emerged across the country. Part III highlights the hurdles that states encountered in passing PDMP legislation and how they overcame them. Part III also discusses some of the recent developments in Missouri's own efforts to pass PDMP legislation. Part IV of this Note examines the benefits of PDMPs as they apply to both preventing statewide prescription drug abuse as well as aiding prescribers in knowing exactly what their patients have previously been prescribed. Part IV then discusses the criticisms PDMP legislation has received across the nation, specifically in Missouri. Finally, this Note concludes with a brief comment on the outlook of drug abuse in Missouri now that Missouri has joined the war against prescription drug abuse.

2. LEGAL BACKGROUND

   This Part traces the history of PDMPs in the United States and discusses how PDMPs have evolved to become law across the country. Though PDMPs are not mandated in every state, the federal government provides financial aid to states that want to construct and implement statewide PDMPs as part of a combative fight against drug abuse. (17) As of 2012, all states had implemented operational PDMPs or had enacted PDMP legislation, except for Missouri. (18) In 1918, New York became the first state to enact a PDMP. (19) California and Hawaii followed suit in the early 1940s, chased by many others during the 1970s to 1990s, including Washington, Texas, Illinois, Michigan, Rhode Island, and Indiana. (20) In 1991, Oklahoma became the first state to enact an electronic PDMP. (21)

   1. What Do PDMPs Monitor?

      Though each state's PDMP differs, the basic information collected and utilized through the programs remains consistent. Dispensers (22) are asked to submit data that includes patient identification (name, address, birth date, gender), prescriber information, dispenser information, drug information, quantity dispensed, and date dispensed. (23) Specifically, PDMPs are formulated to operate by monitoring the collected information for possible abuse or diversion (such as funneling opioids into illegal uses, etc.) and can prove to be life-saving devices. (24) For example, consider a situation in which a patient visits a physician in hopes of obtaining opioids in addition to the prescription medications he has already been prescribed by his treating physician. Had he tried to obtain unnecessary opioids in Missouri prior to July of 2017, he would have likely succeeded with no monitoring program in place for a prescriber to reference to see if the patient had already been prescribed the medication. However, if the patient attempts the same goal in Missouri today, the likelihood of the patient receiving a prescription for unnecessary opioids drops significantly if his prescriber is able to verify through a statewide database whether another physician has already prescribed the patient these medications. This is, at its most basic level, how PDMPs help to save lives across the nation.

      With respect to the prescription medications monitored by PDMPs, the Controlled Substances Act (25) is the federal drug policy through which the United States classifies and categorizes prescription medications into five separate classes (referred to as "Schedules") based upon the federal government's viewpoint of each drug's potential abuse, dependency, and addiction level. (26) Roughly sixty percent of state PDMPs collect information on Schedules II through V drugs, with the rest primarily collecting Schedules II through IV only. (27)

      Schedule I drugs (the most restricted schedule) include non-prescription, illegal drugs, such as heroin, LSD, and cocaine, and are not monitored by many PDMPs because they have no accepted medical use and therefore are not the type of drugs PDMPs first and foremost seek to monitor. (28) Schedules II, III, and IV drugs contain approved prescription medications that have varying degrees of potential for abuse, dependence, and addiction. (29) For example, Schedule II drugs include drugs that have the highest severity of addictive potential, such as codeine, fentanyl (50 to 100 times more powerful than morphine), (30) oxycodone, morphine, and the barbiturates. (31) Opioids also fall under Schedule II drugs. (32) Schedule III drugs have a lower potential for dependence and abuse than Schedule II drugs and include steroids and low-dose codeine. (33) With an even lesser anticipation of addictive outcomes, Schedule IV drugs include the majority of anti-anxiety medications, sedatives, and sleep aids. (34) Finally, Schedule V drugs, which go un-monitored by some PDMPs, have a lower potential for abuse and addiction and include prescribed drugs for common ailments, such as coughing or diarrhea. (35) Schedule I and Schedule V drugs appear at opposite ends of the spectrum but go unmonitored for different reasons. Because Schedule I drugs are inherently illegal in nature, they are not the "prescribed" drugs that PDMPs seek to monitor, whereas Schedule V drugs' abuse potential is so low that many states choose to focus their efforts on monitoring the more addictive Schedules II through IV drugs.

   2. Funding of PDMPs

      Relative to most states' total budgets, PDMPs do not require a large sum of money to begin operating effectively. An average PDMP's startup cost ranges between $450,000 to $1,500,000. (36) Some of the program costs may include sources of hardware (servers), the actual software to operate the database, information security mechanisms, connectivity between pharmacies and prescribing physicians, staff, and overhead expenses. (37) States finance their PDMPs through state funds, licensing fees, registration fees, and direct-support organizations. (38) But often even a combination of these efforts still leaves states without all of the funding they need. In an effort to curb prescription drug abuse and provide an incentive to states committed to developing a PDMP, the federal government created two grant programs that support PDMPs--the Harold Rogers PDMP grant and the National All Schedules Prescription Electronic Reporting Act ("NASPER"). (39)

      Enacted in 2002, the main goal of the Harold Rogers grant is "to enhance the capacity of regulatory and law enforcement agencies and public health officials to collect and analyze controlled substance prescription data... through a centralized database administered by an authorized state agency." (40) It is a competitive grant and is dispersed by the Department of Justice, the Office of Justice Programs, and the Bureau of Justice Assistance. (41) The grant aids states in the "planning, implementation, and enhancement of their PDMPs," and states may apply for the Harold Rogers grant for any of these three purposes. (42) States lacking operational PDMPs typically apply for planning grants (of up to $50,000), states with regulations requiring the implementation of a program like a PDMP may apply for implementation grants (of up to $400,000), and states that currently have operational PDMPs but wish to enhance them may apply for enhancement grants (of up to $400,000). (43)

      Three years after the creation of the Harold Rogers grant, the NASPER grant emerged and is currently dispersed by the Department of Health and Human Services, the Substance Abuse and Mental Health Services Administration, and the Center for Substance Abuse Treatment. (44) The program was originally an amendment to the Public Health Service Act and now provides funding for states to either establish a PDMP or to improve their existing PDMPs. (45) NASPER has two primary goals: "(1) [to] foster the establishment of state-administered PDMPs that providers can access for the early identification of patients at risk for addiction in order to initiate appropriate interventions, and (2) [to] establish a set of best practices for new PDMPs and improvement of existing PDMPs." (46) The NASPER grant amount is...