WASHINGTON – Frustrated lawmakers threatened Wednesday to subpoena information from the Drug Enforcement Administration, accusing the agency of delaying responses to their questions about wholesale drug distributors that poured millions of pain pills into West Virginia.
Raising his voice, Rep. Joe Barton, R-Texas, promised to “bring the wrath of this committee down on the DEA.” The delays, he said, “are inexcusable when people are dying every day from opioid overdoses.
“If I were you I would go back, get the answers in plain English,” he told Neil Doherty, deputy assistant administrator of the DEA’s Office of Diversion Control, which tries to control abuse of legal controlled substances.
Rep. Greg Walden, R-Ore., said the House Energy and Commerce Committee, which he chairs, has been waiting for six months for information from DEA on which companies supplied 9 million pain pills to a small pharmacy in Kermit, West Virginia, a town with 392 residents, over a two-year period.
“Enough is enough,” Walden told Doherty. “Or do I simply need to issue a subpoena?”
Doherty said the DEA had turned over much of the information Tuesday night.
More than 60,000 people in the United States died of drug overdoses last year, according to current estimates, more than half of them from legal and illegal opioids. The epidemic is widely blamed on overprescribing of pain pills by doctors in the late 1990s and early 2000s, but has evolved to include users of illicit street drugs such as heroin fentanyl.
Officials from five federal agencies were called to speak Wednesday at the hearing, which focused on federal efforts to battle the opioid crisis.
The Washington Post and “60 Minutes” reported in a joint investigation Oct. 15 that Congress stripped the DEA of its most potent enforcement weapon against giant drug distribution companies that allowed hundreds of millions of opioid painkillers to find their way into the hands of users and dealers. The 2016 law that undermined the agency was pushed through by a handful of lawmakers allied with the drug companies.
In the House, where a drug industry attorney helped craft an early version of the bill, the leader of that effort was Rep. Tom Marino, R-Pa., who fought the DEA for nearly two years to win passage of the measure. Marino was President Donald Trump’s nominee to head the White House Office of National Drug Control Policy, but withdrew two days after the reports.
In the Senate, the law’s primary sponsor was Sen. Orrin G. Hatch, R-Utah, who negotiated a final version with DEA and Justice Department officials.
At the hearing, Rep. Marsha Blackburn, R-Tenn., a co-sponsor of Marino’s bill, asked all five officials whether any statutes were preventing them from doing their jobs, but did not specifically ask Doherty about provisions of the new law. Doherty responded that his agency would be happy to work with Congress and the Department of Justice to ensure that DEA has all the tools it needs against drug diversion. But he also did not get into specifics.
Both Hatch and Marino have blasted the news reports, contending that Justice and the DEA agreed to the final version of the law and made no attempts to halt its passage or enlist a member of the Senate to stop it. The bill passed by unanimous consent in both houses.
DEA officials have said they accepted a deal for a law they did not want after negotiating the best deal they believed they could get. Emails included in the Oct. 15 reports support that contention.
Current and former DEA officials said the law effectively strips the agency of its ability to instantly freeze shipments of controlled substances via “immediate suspension orders” against companies suspected of violating the law and endangering public health. It also diminishes the agency’s power to take more deliberate action against those companies by issuing “orders to show cause.”
Under the new law, companies are now permitted to file “corrective action plans” that outline how they will correct violations before the DEA can penalize them.
“It’s a get out of jail free card,” said Jim Geldhof, a 43-year DEA veteran who ran the agency’s Detroit field office before retiring in 2015.
Chief DEA Administrative Law Judge John J. Mulrooney II wrote in a soon-to-be-published law review article that the law cripples the agency’s authority to issue immediate suspension orders.
“If it had been the intent of Congress to eliminate the DEA’s ability to ever impose an immediate suspension on distributors or manufacturers, it would be difficult to conceive of a more effective vehicle for achieving that goal,” Mulrooney wrote in the article scheduled to be published this winter in the Marquette Law Review.
Mulrooney’s article also criticized the corrective action plan provision. He likened its effect to allowing bank robbers to “round up and return ink-stained money and agree not to rob any more banks” or letting drunk drivers pull to the side of the road and “park their previously swerving vehicles.”
The DEA has said it has other tools to use in its efforts against “diversion” of legitimate pain medications, including persuading doctors and pharmacists to voluntarily relinquish their authority to prescribe and dispense narcotics.
But such “voluntary surrenders” are used against individuals, not companies, and many are merely paperwork actions against doctors and pharmacists who retire, die or decide to go out of business. Others are brought against individuals who run into legal trouble with state authorities. A doctor who is convicted of a state felony, for instance, may voluntarily surrender his or her registration rather than fight the DEA.
“It is a tool in the tool box, but it’s not something the DEA should be relying on,” said Jonathan P. Novak, who reviewed enforcement cases as a lawyer for the agency before joining a private law firm in 2015. “These are not coming from a distributor or a manufacturer. If they are getting voluntary surrenders, they are getting them from doctors who can’t afford to fight the DEA.”