By R Carter
The court of public opinion
Public shame and humiliation are old tactics often leveraged by indirect methods which have worked well for as long as there has been recorded history. They work especially well on those who arrogantly view themselves as better than others. The fear they tap into damages those who know what is at risk once shaming tactics are used. Such understanding lends credence to “it’s not so much what you know as who you know”. So it’s also not surprising that when looking for leverage against those whose values differ from the main stream, affluent, white, Christian orthodoxy, public shame, humiliation and your finances are the first thing they come after. These tactics are also the foundation of our laws and regulations, as the latter, monetary fines, work on everyone.
Public announcements for violations of the Controlled Substance Act now carries as much weight as the actual facts behind such accusations and sometimes more, with few if any of the major news outlets making an effort to look behind such headlines and investigate the facts. Our world is now driven more by gossip and hearsay than by facts as such tactics sell and the standards for truth and accuracy are all but non-existent.
Since the White House declared the opiate crisis a National Public Healthcare Emergency in 2016, the nation has seen federal agencies step up efforts to rain in violators with ever increasing fervor and a sometimes questionable interpretation of federal rules and guidelines. When federal and state laws fail, public shaming and humiliation becomes the tip of the spear in forwarding the agenda of these agencies.
A Rhode Island article on April 16, 2019 in the Providence Journal “CVS to pay $535,000 for filling forged prescriptions” is an example of reports seen all too often which make damning allegations, followed by fines, charges and jail time for offenders. Many suspect the DEA of using data from prescription drug monitoring programs as the basis for such actions as pharmacist report the inability to distinguish forged scripts from the real thing. Such actions suggest pharmacies must start doing much of the data mining efforts done by the DEA in order to avoid such fines before dispensing scripts to patients adding to labor costs and delays in processing. Fines and charges of wrongdoing are not limited to just pharmacies. Drug manufacturers, distributors, hospitals, clinics, doctors, others with prescriptive authority such as Advanced Nurse Practitioners and Physician Assistants and lower skilled healthcare providers such as certified lab techs, pharmacy technicians, clinic and hospital aids, licensed practice nurses, and such are also feeling the sting. In some cases charges are brought against such individuals with the loss of license, certifications but almost uniformly with the loss of employment due to such actions. Few can survive without deep pockets to mount a legal defense, the only winners are corporations and lawyers.
Beyond these devastating consequences, once identified in such matters, individuals go on a list of known offenders, charged but not prosecuted, essentially black balling them from future business or employment, when their involvement may have been nothing more than being in the wrong place at the wrong time. In fact, the use of public disclosures is now a mainstay of pressuring or penalizing others, forcing them to settle on lesser charges and in doing so, granting DOJ agencies access to property and funds they would otherwise not be able to gain through congressional budgets.
While DOJ agencies are quick to publicize arrests, charges and seizures, more often than not, their efforts are justified. But such successes don’t justify the use of agency powers to wreck the lives of those whose only offense is a view on treating chronic pain that differs from the ideology of the agency, especially when doing so is within the limits of the law. When their efforts fail in court, you don’t see any DOJ agency issuing a public announcement of, “Oh we screwed up”. By then the lives of individuals and businesses are damaged, sometimes beyond repair, as the court of public opinion is held to no standards of innocent until proven guilty, allowing your competitor’s bad luck to be your break of great fortune. Our weapons are no longer clubs and stones in our fight for survival, they are rules, regulations and laws, most of which are so complicated or ambiguous as to require a small fortune in order to interpret and survive even a casual accusation of wrongdoing.
In many cases facts are few for drawing rational conclusions, as the war plays out in the headlines of news outlets that appear to care more about drama and controversy than anything else. Claims of wrongdoing are often ambiguous, reflecting the laws and regulations which are allegedly violated; the Controlled Substance Act is one such example. Look at the meaning of the phrase “the reporting by registrants of the theft or significant loss of controlled substances.” is the basis for many fines levied by the DEA against drug manufacturers, distributors and pharmacies.
A reading of Title 21 CFR Part 1301 of the CSA leads to multiple interpretations, allowing the DEA to interpret on an individual basis what constitutes a violation. Take for example a fine imposed on CVS in New York for $1.5 million dollars for failure to report a loss of inventory. No specific details are listed in a DOJ press release for which aspects of the CSA were violated, nor what actions were taken by CVS which warranted this fine. Neither is there a disclosure from CVS on any specific wrongdoing. Reading the specific language of Title 21 CFR Part 1301-July 2003 regarding theft and loss, leads one to believe that policing manufactures, distributors and pharmacies for a regulation which took effect in 1970, has been an afterthought. One which only became relevant after 2010 once there was a problem. In the interim, business and industry was left to police itself and now with government hysteria run amok, agencies want these same groups to exercise Jedi mind powers for what was the original intent of the law. Failing to do so, they are fined .
When the same standard is applied to small business and individuals who can’t afford the fines or legal expense of defending themselves, many innocent lives are destroyed. With allegations that lack evidence or have circumstances preventing charges or fines and jail time, the act of making such information publicly available through the media is a death sentence in itself as the jury of public opinion does what the DOJ can’t.
A new era in conservative idealism
All such actions are part of a new era of conservative values now spilling over into federal and state law, some of which role back laws and precedence which have been in effect for the last sixty years. But they do more than that, some changes like the new HHS ruling for healthcare providers which add the “moral consciousness” clause, give wide latitude to individuals to act out their bias, prejudices and bigotry in ways that haven’t existed since the 1800’s.
An example is the initiatives of Office of Civil Rights operating under Health and Human Service, to prioritize mainstream Christian values over the rights and values held by other religious groups. A new Department of Health and Human Services ruling which provides a reaffirmation of a healthcare provider’s rights to deny care based on religious beliefs, standards for which we have clear and unambiguous case law, now has an added clause of “moral consciousness”, essentially making it lawful for any healthcare provider to deny care, treatment or referral for any reason which seems objectionable or violates an individual’s moral code and ethics.
With no case law for such precedence the ruling is like an open barn door, allowing any individual to discriminate for any reason. Walk into the office of an Ascetic Jewish doctor wearing a “Jesus is Lord” T-Shirt and you may find yourself being shown the door. Operate an Urgent Care Center where you don’t like people of color, then regardless of a bleeding gash you can send them somewhere else never lifting a finger to stop the bleeding. If you’re a female of childbearing age the stakes are higher. Most women don’t know they are pregnant until eight to twelve weeks into a pregnancy. If that pregnancy is ectopic, (not in the uterus), then you have a life threatening situation. If the ectopic ruptures you can easily bleed to death, yet showing up at an ER may result in your denial of care because you have no insurance and it is now the “moral consciousness” of the facility not to take cash paying patients for any reason.
These are only a few of the potential consequences of a “moral consciousness” clause with no case law to define those boundaries, placing the general public’s assurance of health and safety at great risk and it affects everyone. Over the next couple of years expect to see more reports of people denied care for anything imaginable, with no legal precedence for what ideas constitute a moral conviction.
Rolling back laws which have protected those who are outside affluent, white, Christian orthodoxy is a dangerous ideological game which ultimately has less chance of succeeding now than it did when the original legislation was passed. Many who have tasted freedoms granted them by laws which make all men and women equal, will not easily give up that which all hunger and thirst for. Given the sweeping changes brought about by the MeeToo movement, it will be interesting to see how this group responds to this new gender based threat.
The notion that white makes right, died many decades ago. In a world powered by instant communication via the internet, where everyone is connected and social awareness goes viral in a matter of days, the idea of returning to yesteryear when an affluent white middle class kept outsiders impoverished and under thumb, is probably the most telling aspect of the denial that operates in such individuals. And when failing once again to forward such agendas, they will no doubt return to the usual course of public shame and humiliation as the only tool they have for forwarding such agendas.
Take for example the case of Montana’s Dr. Mark Isben, who believes a competing medical doctor, who had been appointed to the state medical board, used his position to claim that Dr. Isben was both over prescribing and illegally prescribing controlled substances. While most doctors attempt to hide from the public humiliation of such charges, Dr. Isben took a different approach. Recognizing the greater consequences rested in the court of public opinion, he went on the offensive, defending his position and his practice in the press. The outcome for Dr. Isben was far better than for most who hide and settle for sanctions in an effort to avoid a lengthy and expensive legal defense. Dr. Isben is a heroic example of what many doctors have failed to recognize, which is, there are no safe haven for them through state medical boards or professional organizations. Doctors must now ban together to protect their rights and interest or risk losing all they have worked for.
It was the public allegation of wrongdoing which were the consequences which could not be completely overcome by Dr. Isben. During the two plus years his case was before the medical board, he was allowed to practice but his ability to prescribe controlled substances remained suspended pending the outcome of the accusations. The public defamation he suffered during this time was the only leverage his opponents had, yet not settling for this alone, a state appointed special prosecutor assigned to the medical board, made it clear, that medical boards are now nothing more than an extension of law enforcement and the DEA. Both of which have wide latitude in their powers to publically assault individuals, waging a war on the livelihood of those they oppose by drawing out a protracted and extended process designed to expend their financial resources and force capitulation.
Beyond opiates, the war on Roe vs Wade
This new wave has extended conservative values, most often based on Christian orthodoxy, provide peace of mind for those who believe this way but with no burden in living with the consequences. Take for example an Ohio Legislator who, based on two case reports, one of which is hundred years old. The legislation will force doctors to replant ectopic zygotes less than eight week old, back into the uterus of pregnant women in an effort to avoid the loss of a nonviable pregnancy. He promotes the legislation as saving lives, cutting costs which is good for business and tax payers. But the legislation fails to address the burden it places on parents who would spend the next twenty years raising a child if the procedure succeeded or in dealing with the consequences if it failed and produces new medical problems, which it would 100% of the time. Such narrow minded ideology has no medical basis and is nothing short of science fiction. It has no benefit for anyone other than the ideological zealots who support such ideas.
New threats for the Chronic Pain Community?
For the near term a “moral consciousness” clause for healthcare providers gives doctors a new tool which requires no proof, no medical justification and no scientific facts on which to refuse care. Furthermore, prior to this ruling, chronic pain patient could at least file an ethics complaint to a state medical board, Medicare or Medicaid under HHS guidelines, for any healthcare provider who violated existing ethical standards of care. The most important of which was a doctor’s obligation to accept and treat patients for which they had medical expertise and for treatment covered by programs under HHS, such as Medicare and Medicaid.
Now doctors have license to refuse care for any reason including skin color, ethnic origins, non-English speaking individuals, religious differences, age, gender, sexual preference, disability and the most dangerous of all, type of insurance coverage, and all they have to do is claim that it violates their individual moral code and ethical values.
Considering that many chronic pain practices have a high number of Medicare and Medicaid patients, new HHS regulations will no longer penalize providers who participate in these programs if and when they discriminate under the moral consciousness clause. Prior to the new ruling if a healthcare provider discriminated they took a risk of losing participation in Medicare and Medicaid, after July 2019 this will no longer be the case. Now some healthcare providers can weed out undesirables without fear of an impact on their livelihood, thereby reintroducing a component of bias, prejudice and bigotry into healthcare delivery.
This gives some providers new leverage against patients, enabling them to force procedures and treatments which are not necessary, have been tried previously and failed, steer patients away from treatments which are good for them in favor of treatments which benefit providers. If providers are questioned, they can give some ambiguous justification based on their individual moral code and face no consequences whatsoever. Today those types of issues are typically hidden behind the idea of “professional judgement” which by itself must meet the standards of care, but now, there is no standard for moral and ethical values, every healthcare provide is a free agent, empowered to defined their own morality with the states blessing. The criminals with love this.
The new “moral consciousness” clause places a greater burden on chronic pain patients to be well educated, well informed about their medical condition(s), the appropriate treatments for them and the order in which treatments should or can be tried before moving on to another. Without such an understanding and despite knowing these things, patients can be easily manipulated by such an ambiguous concept as moral consciousness.
Taking a lesson from the MeToo movement, chronic pain patients will now need to unite in ways they have yet to consider as the worst is yet to come.