By: Mahdieh Danesh Yazdi
In previous issues, we discussed prescription drug abuse and several bills currently on the floor of the NYS Legislature, sponsored by Sen. Hannon which addressed the issue. On February 7th, I sat down with Sen. Hannon’s director of communications, Mr. Phil Hecken, and his legislative aide, Mr. Timothy Broschardt to discuss this matter and other health care issues.
Note: The opinions expressed in this interview are solely those of Mr. Hecken and Mr. Broschardt and do not reflect the opinions of Sen. Hannon, Rho Chi Post, Rho Chi Beta Delta Chapter, or St. John’s University College of Pharmacy and Allied Health Professions.
Q: Were the Medford shootings the impetus to start working on S5880?
Mr. Broschardt: I’m not sure of the timing of the shooting, but I believe so.
Q: What was the reasoning behind the amendment of Bill S5880, to exempt hydrocodone from Schedule II regulations on storage and distribution?
Mr. Broschardt: This has the effect of moving all of them into Schedule II at the pharmacy level. I assume this is an effort to avoid placing more burdensome requirements on pharmacies.
Q: How did the Senator come to include tramadol to be part of this legislation? We do know that tramadol is an opiate but legislation has really never addressed it as such.
Mr. Broschardt: I guess he saw as a hole in how we treat these drugs. He saw it as something that had not been dealt with. I guess it is seen as a rising problem and one that has not been seen as a major addiction issue but rather one that is increasing.
Q: Where does the legislation stand right now? I read recently that the legislation was on third reading. What does that mean?
Mr. Hecken: Well, if the bill is in third reading that means it can be voted on anytime, they could vote on it tomorrow, or it could sit on third reading for two months,
Mr. Broschardt: it could sit on third reading forever,
Mr. Hecken: Well yes, sometimes if it does not get voted upon, the reason maybe that they are not in agreement with the Assembly. You could pass a one-house bill, but unless both houses approve the same bill and then the governor signs it does not become law. You could have what we call a “feel-good” bill so that they can say that we did it, knowing full well that the Assembly won’t. So as to when it will be voted upon, I don’t think anybody would know that.
Q: Has the bill faced much opposition from anybody?
Mr. Broschardt: To our knowledge, I don’t think so,
Mr.Hecken: I don’t want to say that there has been no opposition, but not to the best of my knowledge. At a law enforcement conference this morning, both the law enforcement and pharmacy community seemed to be on board with any new laws and bills and technologies that could protect pharmacists while selling these high-risk medications or to give them security within the pharmacy itself. I don’t think there is any major opposition to any of these bills.
Q: Now, with S6066, did older legislation only specify doctors and is that why there is a need for this bill to mention practitioners, pharmacists, and pharmacy interns?
Mr.Hecken:It’s to close any loopholes that there were. I believe right now the prosecution can only be of doctors who prescribe or abuse the prescription process whereas there are pharmacists, very few pharmacists, who are complicit in this, and I believe that this is to close any loop holes that may exist.
Mr. Broschardt: My understanding is that it is more clarifying in terms of the actual practitioners and applying it to pharmacists. Part of the bill is that it is a new statute, it is not changing an existing statute; it is adding a new one. Maybe in the past there was a lower sanction, like a Class D or C felony. But the bill itself would be creating an entirely new statute in the penal law. It is not just closing a hold but also acting as a deterrent.
Q: How practical is it to enforce this law? The legislation uses the term “good faith”, which is commonly used in such legislation, but how is that applied in real life?
Mr. Broschardt: Well, part of it is that enforcement is not something that can be legislated and that is going to come down to the executive and law enforcement. There is also other legislation that would be involved in this. For example, ISTOP would be related because it would set up a directory that they would have to be checked for how often someone has been prescribed a drug, whether it is chronic or not and gives them a history with this and similar drugs and allows them to make a better judgment call on the issue. Also, there is going to be a lot of involved in case law which will be up to the courts.
Mr.Hecken: I understand what you mean about that term being thrown around and obviously a lot of discretion would have to be exercised by both prosecutors and judges to deciding guilt and innocence based on a phrase like that. One of the gentlemen on the panel today a Dr. JD from Nassau mentioned a similar point that he sees people come through the emergency room or a physician’s office and sometimes the doctor’s themselves have to make a judgment call as to whether someone is there to just score painkillers or whether there is legitimate need. Even the doctor themselves, even before it gets to the pharmacy stage, have to determine this. Currently they are storing records in a database so that someone who is a known pill abuser or purchaser could be tracked so they don’t resell them down the road.
Q: What about a situation where a known pill abuser or seller has a legitimate medical need for these drugs? Or what about patients who can only take high amounts for long periods of time? Would ISTOP differentiate these kinds of patients?Mr.Hecken: This is all judgment and that is why we wouldn’t want a pharmacist who is acting in good faith to be wrongly prosecuted. For example, if they cannot tell that someone is intending to resell the drug. They may not know or be able to tell. This is more of a safety mechanism in the legislation than a penal mechanism. If you honestly did not know that you were writing or filling a prescription for someone who intended to resell it you would not be held accountable for that action. It is better than a black and white definition in the law.
Q: This would be especially true for pharmacists who may not know their patients or may not have a complete patient profile. They only know the drugs that the patient is buying from their store and may not know if a patient is going to other pharmacies as well.
Mr. Broschardt: This is part of the rationale for the ISTOP program. Because then you would have that information if they had gone to another store to get the same drug.
Q: So just to turn quickly to the anti mandatory mail order (AMMO) issue; I believe Sen. Hannon was a cosponsor on that. What were some of the reasons that he supported that bill, especially considering the backlash from consumer advocacy groups?
Mr.Hecken: There were many arguments for and against. There were arguments that it would drive up cost, and there were arguments that on the other hand you could walk to your local pharmacy and pick up your prescription rather than mail order and that it would not cost more. He [Sen. Hannon] is pro-consumer and I don’t believe he would support legislation that increases costs to the consumer even if it was for the purpose of protecting them. I don’t think the cost argument drove him but I don’t think he would support the legislation if it would make people pay more for drugs. It increased access for most people and would not raise the cost of drugs. We need more access rather than less.
Mr. Broschardt: He did it to support independent pharmacies and help protect small pharmacies be more able to compete with large mail-based pharmacies.
Q: Onto a broader topic: If you ask many pharmacists in New York, they will tell you that our state is behind in terms of legislation in the pharmacy world. We were the 49th state to allow immunizations and then only the influenza and pneumococcal vaccine. Also, 43 other states already have prescription monitoring programs. Why do you think it is that we lag behind other states in terms of this kind of legislation?
Mr. Hecken: I don’t think we lag behind. I think there is a lobby opposing such legislation. I can’t imagine why we didn’t do it sooner. I used to travel to other states and saw the CVS, Walmart, or Walgreens with signs to “Get your flu shot here” and I thought that you had to go to a doctor for that. I think there must have been people who would not want that kind of legislation. I think in fact that in New York we are quite progressive actually when it comes to adopting legislation before the rest of the country. In this instance, I imagine there is a strong opposition to these legislations.
Mr. Broschardt: Part of it could also have something to do with our insurance system and the complexity of Medicare, Medicaid, and regulations. Because we are so careful in terms of consumer protection we have a very set system. Anything we change would have more far reaching effects than other states which say have a smaller government.
Q: These are tough economic times, especially for independent pharmacies. Medicaid and Medicare reimbursement rates have been cut and small businesses are struggling against their big-name competitors. This discourages people from starting their own business, at least in pharmacy. Is there anything the state can do, on a legislative level to alleviate this?
Mr. Broschardt: That gets to the bigger picture of big business vs. small business. There are for example proposals for tax credits for small business but beyond that it’s difficult to change things. The only other thing I can think of is strengthening antitrust laws.
Mr. Hecken: I think also, in a recession or poor economic times which we are in right now, economies of scale are going to trump everything. So the mass producers, CVS, and Walgreens can do it cheaper and you think to yourself why would I go into this business if I can’t even break even let alone make a profit. In better economic times, the state may be able to do more with, as Tim said, with tax credits or small business credits to encourage them, but the state is so cash-poor right now that I don’t think they would be able to help anybody, not that they don’t want to, but they only have a limited amount of money they can spend.
Mr. Broschardt: Unfortunately, the current movement is away from offering tax credits. I think that in this year’s budget there were only two tax credits whereas there were more in the past. In the attempt to try to simplify our tax code, many legislators are hesitant to introduce that kind of legislation.
Q: I want to take a minute to talk about the Affordable Care Act. I know this is not within the Senator’s purview on the national level, but on the state level, NY is supposed to set up an exchange to implement the bill by 2014, otherwise the federal government would step in and do it for NY. What is the legislature doing in terms of setting up this exchange? Why hasn’t the exchange been set up yet?
Mr. Broschardt: Part of it is that they are banking on the pending court cases; that the entire bill might be struck down.
Mr.Hecken: The Assembly feels that certain deadlines need to be met, and the Senate feels that those deadlines have been met already. We are getting to the point where the Supreme Court would be deciding, we’ll call it “Obamacare” for lack of a better term, whether it is enforceable, or at least the health care exchange portion. Sen. Hannon proposed a bill last year to set up the health care exchange. So we are ready to go with them, if the court says its law. But they don’t want to do anything now and have it struck down by the court and have to start from scratch. It might be more difficult to amend or change if the law is codified. Whether the court strikes down the law or not, I think the states will move towards a model like Massachusetts, now called “Romney Care”, a universal health care approach. I think that ball has already been set in motion.
Q: I just wanted to come full circle and go back to the issue of security in the pharmacy. Pharmacy is moving in a direction which encourages an interactive approach. Amid growing concerns with security, that trend may slow down or stop all together, which is something that nobody wants. Do you think that the measures that are currently being taken are enough to ensure security?
Mr. Broschardt: I don’t think I can take a full stance on the issue because it would depend on how it is executed and how the reaction is to these bills. I don’t think that these will be the only bills on the issue; I think it is an ongoing process. We’re going to see more and more legislation on this issue whether at the state or federal level.
Mr. Hecken: No, they are not going to be enough. But that is not because they are not good. This is going to take the efforts federal, state, and local authorities to work together with pharmacists on the issue. At the conference I attended this morning, there was talk of distributing a flyer or pamphlet on how to best set up a store, to have more sightlines to the street, to possibly change hours. There is also this new technology, SmartDNA, which has been implemented in other pharmacies and in Europe, and is going to be tested for a year at a pharmacy nearby. I don’t know exactly how it works. But I think you set up the system at an exit, so if you are robbed, they set off a trip wire, the thief gets sprayed by an invisible compound, and if they get caught, it would be visible under an ultraviolet light. It has a 99% conviction rate. This is a deterrent now. You put this sign on your door, so it would deter the thief from going in. Nassau County has a new unit, which put out a flyer on tips to avert prescription drug abuse. Will legislation be enough? No. But there has to be effort all around. Pharmacists have to better educate themselves. And then there is trying to get people who are addicted to drugs to get off of them.
Q: And that was going to be my next question. What do we do about those who are already addicted to prescription narcotics?
Mr. Hecken: This has been a problem for years. Only now there has been an increase in addiction with prescription medication, because there is no stigma attached. After marijuana, these drugs are the most abused set of drugs: more than heroin or cocaine. These drugs are not illegal, they are controlled, but obviously people still have access to them. Do we combat drug abuse by making them less available? Do we make it socially unacceptable to even try them? Is there a way to make the drug less addictive? I don’t know the answer.
Q: Are there steps being taken to treat those who are addicted to drugs right now? Because I don’t believe that anybody thinks the right approach would be to have people go through treatment in prison.
Mr. Hecken: That’s right. I think you could try to put inside pharmacies and workplaces a yellow caution sign to encourage people to realize that they have a problem and that it does not need to be hidden to such a point where they would commit crimes or rob people. I think we have to change the social moors to tell people you are addicted and you want help. We have laws that you can’t be fired if you’re in rehab. I personally think that one is not at fault unless they do not seek help. But if they do seek help, they should not be denied the help they need. There should not be a stigma attached to it. But that requires changing societal thought. There was once a time when same-sex marriage would not be considered in this country and now it is the law. I think this is people attitude’s changing.
Mr. Broschardt: Right now, there is a proposal to close down one of only two rehab centers in Nassau County at Nassau University Medical Center. The only one left would be the one in Long Beach. However, there is also a movement now towards a more outpatient treatment for it. I know there is now a discussion over which approach is more effective in terms of budgetary costs and the actual effects you see in people.
Q: Are they closing down due to budgetary concerns?
Mr. Broschardt: Yes
Q: I know that Sen. Hannon is head of the public health committee. Are there any other initiatives he is involved in that would be relevant to the pharmacy world?
Mr. Broschardt: Yes, there are other bills. I know there is one to increase the continuing education requirements for pharmacists and I think a few other health care professions. There is a bill to require further language requirements in pharmacies. There is a bill regarding telepharmacy which is about advising via electronic systems.
I would like to thank Mr. Hecken and Mr. Broschardt. They were very generous with their time and information.
Since this interview, both Bill S5880 and Bill S6066 have passed the Senate and await passage in the Assembly.