ACLU Sues over Mandatory Drug Tests

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.

ACLU_of_Indiana_logoThe 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.

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30 Responses

  1. Geno says:

    Where do I start. The Indiana AT&T.gen.sucks.IAm a chronic pain patient.I have a implant in my neck,C-4-5-6-7′I also hand ulna nerve surgery on both elbows and I have had surgery on both hands for carpel-tunnel.Wait I’ve also had surgery on my left leg ,above my knee and I hurt everyday all day.guess what because I smoke a little marijuana for comfort, I cannot get pain medicine from any doctor.All because of urine test.How long can the goverment violate our rights.I thought this only happen in communist countries.My mother died one month after this bitter pill law started. They stop her meds until she could see a pain-management doctor. Which she will never see now.No thank you Greg Zoeller.You should resign.you are not for the people.

  2. kim says:

    Can a doctor drug test me if i have never signed a treatment agreement with his office ? I signed consent to do the drug test but i was pretty upset with having to take one.. I never signed any pain management agreement with this doctor and really don’t care for him much because he brings up the fact that i don’t have good insurance every time i see him. I’m on Medicare and Michigan Medicaide. I only get 908.00 dollars a month to live on and cannot afford better insurance.

  3. IMO.. IN’s AG Zoeller is either a opiophob or is trying to raise his public profile.. to run for a higher office.. or both. IMO.. there is many more legal issues on these types of moves by bureaucrats and why the ACLU just picked on the urine testing.. is a puzzle to me.. maybe after they win on this one issue they will go back to the well to pursue some of the other legal issues around this “bitter pill” program that Zoeller “forced” the medical licensing board to enact as an emergency rule making. Since the war on drugs have been going on for some 40 yrs.. why all of sudden to have a emergency rule making process ?

  4. CW says:

    If you really want to help stop this you can also go to:

    https://www.popvox.com

    Look up ACLU sues state of Indiana and you can write to your states Congressman and or Senators about this and other issues. This site even looks their addresses up for you and all you have to do is type in your thoughts on this and any of the other legislation that’s coming at us.

  5. Cw says:

    Funny the cost should come up as I just received a report from my insurance and in it was the cost of theses tests, They appear to run around $500 each time. They are screening for all types of drugs which again is not their business and I ( nor my insurance company) should be forced to pay for this infirigment of personal privacy. To appease the government who is in our lives more every day.

    I worked for over 32 years in a job that required for cause and random drug testing, and did not not like it but understood the reasons behind it.
    This on the other hand is ABSOLUTLY WRONG as I’m now a private citizen who just happens to be in extreme chronic pain from years of intense labor. PLEASE HELP STOP THIS INVASION OF OUR PRIVACY!

  6. Dianna Colbert says:

    Last year I was charged 3727.38 and this year 2095.73 for drug testing .

  7. Brenda says:

    Just returned home after my Dr. appt. re: this Indiana drug contract. This is the most outrageous law. As I see it, I am being punished for having Chronic Pain. After 14 years of Fibromyalgia and Rheumatoid Arthritis pain, I finally have relief with pain meds.

    My doctor can tell you that I have never run out of pain meds before the month is out with my daily pill. I have one med for breakthrough pain that I get 30 pills. The last time I had this filled was in September. Just had it refilled because I fractured my shoulder but after 4 weeks, I still have pills left. I always wait until I cannot tolerate the pain before taking a breakthrough pain pill.

    Since when does a medical board know what is best for me??? My insurance company doesn’t fill any of my prescriptions unless it is time to refill according to the date I last had it filled. This stupid law will not get one more drug pusher off the streets, but it sure will cause me more inconvenience, money, and anxiety. Who will pay for all the extra Dr. visits and drug tests(which are worthless). This is the most unfair law that has been applied to me ever.

    Hope you can help us.

  8. Wendy says:

    So glad the ACLU is taking this on. It reminds me of ACLU as a resource in my state as well as locally, as I just noted that the Congressional Committee on (cannot remember what) will be holding a hearing on April 29, 2014 (the subcommittee is called Oversight and Investigations) . . . the subject of the Hearing is the “Problem of Prescription Opiate Abuse and Heroin Abuse.” They are now lumped together . . . Pain, which not all that long ago used to be treated as the Fifth Vital Sign, is now the stigma of the drug abuser, apparently.
    I am thankful for the doctors who care for me with integrity and so far have not required me to pee in a cup, but I know the day is coming. The ACLU will be very helpful to us. No need to make pain patients collateral damage in the War on Drugs. It is so hard to get real pain relief (of any kind) when politics are involved.

  9. Chuck Wasinger says:

    Similar story, I’m constantly in pain from , collapsed neck and lower back discs, diabetic neuropathy and pinched nerves to name a few. My pain clinic used to not be concerned with legal Medical Marijuana use, but just last week said I have 90 days to get it out of my system or they will drop me. DEA ORDERS….. WHAT COUNTRY DO WE LIVE IN? I use Oxycodone for pain relief , and it barley provides it. The combination of the two helps me a lot.
    Help this is not right

    I’m in AZ

  10. Steve M says:

    Attorneys for Social Security are a waste of money. They ate completely unnecessary.

    All you need to do is prove that you are ineligible for competitive employment because you will miss at least two work days per month.

    Request the CD with your records and make sure your case guile includes all relevant records.

    Do those, and you’ll be more effective than an overpriced lawyer

  11. Steve M says:

    Rick Boyd

    Tramadol isn’t an anti-inflammatory, it’s an SSNRI (like Cymbalta, Effexor, Pristiq, and Savella). It also had weak mu-opioid properties.

  12. @Donna.. if you are not using an attorney.. get one that specializes in disability… not just any old attorney.. They know how the system works.. They don’t cost you a thing up front.. they are limited to charging you 25% of your first check.. once you are approved for SS/Medicare disability.. If they can’t get you approved.. you owe them nothing..

  13. Donna Tucker says:

    i have hepatitis c and fibromyalga. for years i have been in pain and the most i could get is tramadol and i had to beg and cry for that which barely helps. i cannot do anything except lay around and have not been able to work for years. before this happened i worked all my life. filed for disability and have been denied twice. i dont know what else to do. im scared. is there any hope? i have wishard advantage.

  14. Barbara Peacock says:

    Hi again! I have severe, debilitating pain with fibromyalgia. I want to do something about this if I can. Where can we get more information about what the government is up to? I have finally found a doc who may prescribe me opiates for pain. I am trying neurontin again because l was too scared to ask for opiates outright because of the climate these days.
    However, I did say: “I know people do not like this, but opiates are what work for me.” And to my surprise, the doctor said: “You may be right! You may be a fibro patient who needs opiates!” I was stunned into silence.*laughs* To think that just hearing that my pain will be treated with whatever they have to bring to bear was such an encouragement to me. I do not have the pain meds in hand that work for me yet, but a doc that will try everything is a comfort to me! I am hopeful that the neurontin will help this month, but so far…not helping and I feel soooooo strange. The ultram l have is pretty useless right now. It took me over 3 years to find a doc that says we “might” use opiates….that is criminal, isn’t it?

    Is there someone we need to bombard with strongly worded letters about this problem? I want to do something, even if I have to do it from my bed…
    May God bless each of you that suffers from chronic pain. Hang in there. Don’t you dare give up…we will solve this enigma somehow. I hope and pray all of us have many pain free days ahead…thanks for reading!
    PS- Thank you so much Steve! Keep on keeping on!

  15. Rick Boyd says:

    I have been taking tramadol for years for arthritis relief. Tramadol isn’t even a real pain killer as much as a anti inflammatory, but it works for me. I have liver problems and can’t take aspirin or any other over the counter meds for arthritis. My Doctor is scared to prescribe any pain meds because of the DEA. So now I have to go to a pain clinic to get Tramadol because the DEA has changed Tramadol to a schedule 4 drug. Now I drive 60 mile to the next count every month (1/4 tank of gas), 50$ for the pain clinic, 238$ for the full drug test every 3 months. These are are what I pay after the insurance. I asked the Doctor if I could take a neg/pos test verse the full spectrem

  16. John Doe says:

    I lost my prescription ive been on for five years. I failed drug screen for thc. I still have need for the pain medication and I will for the rest of my life, the doctors have already told me that. Someone please tell me what my options are as of now. Just happened. PLEASE HELP WITH ADVICE.

  17. Barbara Peacock says:

    Steve, Thank you for your reply! I cannot tell you how many times l have heard *we do not use opiates to treat fibromyalgia* in the last 3-4 years. I would love it if something other than opiates would work…but l have 20 years of experience with this disease (fibromyalgia). I believe l have other injuries also…but my xrays are normal, of course.
    I am losing hope that l can find a doc to help though. They all say the same thing. I completely agree that doctors are violating the hippocratic oath, and are “doing harm” by undertreating pain. I am bedridden as a result of undertreatment of pain.
    Thanks for the response! I feel less alone hearing from others in the same situation! (although l am so sorry we are IN this situation).

  18. J Smith says:

    I was just at my pain management doctor and they asked for a urine sample. I questioned this since he had been doing them about every six months and it had only been four since the last test. The doctor and the nurse both told me that the DEA changed the rules and now required the testing every four months. Initially I was willing to accept what the doctor told me when he started this about two years ago and it was every six months, but this latest change made me suspicious because of the increased frequency. The problem I have is that I can not find anywhere on the DEA web site or in the Code of Federal Regulations where it says anything about mandatory drug testing of pain management patients. I am getting the feeling that I am being lied to. I have also recently discovered that the doctor has a financial interest in the lab that he is using to do the tesing, which only makes me that much more suspicious. Does anyone know if there actually is any DEA requirement for drug testing of pain management patients and, if so, what the applicable code number in the CFR I can find it under. Also, is it possible that this is a CA state requirement and not federal and the doctor is just mistating where the requirement comes from.

    I would appreciate any help that anyone can provide on this issue.

  19. Steve Ariens says:

    @Diane.. doctor shopping is going to multiple docs – AT THE SAME TIME – to get the same/similar meds from each.. and none of the docs knows what the other one is doing or is involved.
    My wife once saw a Rheumi like that.. what a BITCH !
    Keeping going from doc to doc.. until you find one that listens and believes you.. and will treat your pain.. if opiates work – great use opiates – if opiates don’t work – keeping trying until you find something that does resolve your pain the best you can.

  20. Diane C says:

    @Steve, those were the the exact words out of my rheumatologist’s mouth yesterday, “we don’t use opiates to treat fibromyalgia” when I asked her, in tears, if she would give me something to alleviate pain which averages 8-9. I also told her I don’t know how she sleeps @ night knowing patients are in pain & suffering. If I go to another MD I’ll get accused of doc shopping!

  21. Steve Ariens says:

    @Barbara.. its seems that the docs who use to say that FM was not a real disease.. are now saying that opiates don’t work for FM pts…Just another cop-out.. Pain is subjective… like hunger, thirst and fatigue.. only the person experiencing the pain can tell you the intensity. Prescribers are taught that everything has to have some test to be able to diagnose and/or treat.. there is no test for pain.. so how can they justify treating it. Throw in the fear of the DEA and you have a perfect storm.. IMO.. failing to treat a pt is in violation of the doc’s oath “do no harm” and failure to treat is a form of patient abuse. Pain seems to be maybe the only disease state where our society discourages treatment and/or encourages not to treat. There is no easy answer to your plight … keep going to different doctors until you can find one that will listen and treat..

  22. Barbara Peacock says:

    I am trying to figure out what l did wrong to deserve my pain not being treated at all. I had xrays done, they said they were all normal. Do I ask for an mri now? I have fibromyalgia and the pain is severe, but docs refuse to prescribe opiates for it anymore. Is it the new laws or just me? I am running out of fight now. What do l do? I have no clue where l should turn.

  23. Sandy says:

    Ameritox has been busted already over these UAs by a US District court in Maryland ruled that UAs cannot and do not tell if a patient is taking the medication properly or not because everyone metabolizes these medications differently. They simply can show whether it is in there or not. BTW I’ve had many come back as negative, despite taking it properly and even asked to have my blood drawn – and been denied – to show that it is truly in my system. Blood can show a more accurate level than urine.
    http://americannewsreport.com/wp-content/uploads/2012/06/Millennium-vs.-Ameritox.pdf

  24. Steve Ariens says:

    I believe that the law also exempts hospital and nursing home pts. 15mg/day will not treat chronic pain… chronic pain is 24/7.. even using the 15mg Morphine SR.. would only deal with minor pain for 8-12 hrs.
    IMO.. this is a discrimination on pts.. depending on where they reside .
    If you need the assistance of a Indiana/KY licensed Pharmacist that specializes in chronic pain.. please contact me.

  25. christine toscano says:

    Thank you ACLU for making this important step towards insuring our rights as pain patients. I currently suffer from fibromyalgia and have bulging discs in my back and neck. I have recently been referred to a pain management clinic and will be subjected to monthly testing and mandated appointments monthly. This is going to put a major strain on me physically. I don’t travel well, and the monthly visits will be a blow to my budget.

    I am an excellent patient and have never taken my medication in any way other than as prescribed. I feel like I am being unfairly treated. I do not understand why legitimate pain patients are being treated this way. It violates our rights in addition to making us feel as if we are doing something wrong.

    My previous doctor suddenly retired due to his own health issues. This left me in the care of a PA who has decided that after years of being on exactly the same treatment plan, she will discontinue it as of February. Without this treatment, I will simply be bedridden. Without this treatment, I will often be unable to care for myself at all.

    Thank you for what you are trying to do to help us. We really need your support.

  26. David Irwin says:

    How can I become involved in this lawsuit? I’m sick and tired of my government trying to run every part of my life. I deal with chronic pain and have for years. Who is going to pay for these tests? The state of Indiana or my insurance?

  27. Diane C says:

    I applaud the ACLU for delving into this matter. Government has no business in my doctor’s office. I suffer daily from chronic pain related to fibromyalgia. I’ve been referred to specialists because my PCP doesn’t want to deal with meeting the regulations. She told me if I could smoke pot I’d be better. Unfortunately medical marijuana is illegal in KY. The rheumatologist also refused to prescribe pain meds so I continue to be in pain. I can’t get meds to drug test for! Outrageous!

  28. Shelley Woelfel says:

    I went to a pain clinic doctor in 2005, and on. I was told that due to federal laws I had to start being drug tested montly. I had to pick from a bag of marbles, and if I drew the wrong color I was to be tested. I had toshow up at the doctors monthky to pick up scripts, no exams, nothing. Only, to show uo for scriots and oay a 40. Itwas a terrible feeling as an adult to be treated as a victim and an abuser. When I complained about it the office suggested I find another doctor. I did so willingly, since I always felt like I was putting the doctors and staff out for trying to get some sort of relief from a life in pain.i now see a new pain clinic doctor who cares, as does his staff. I would gladly join the dispute, tell me how.

  29. Kay Boyajan says:

    I suffer from chronic pain due to severe fibromyalgia, I do not like taking opioids but if I didn’t I would not be able to get out of bed. Here in Iowa I have had to take a drug test it was humiliating. I am not a criminal but sure felt like one, if I had failed the my meds would have been stopped. This is not a fair law for those who suffer

  30. It has finally happened; chronic pain patients are being recognized as people who have painful conditions they did not ask for and cannot cure instead of criminals, guilty until proven innocent.

    Thank you ACLU for understanding that the way pain patients are being mistreated and undertreated is a violation of basic human rights. Not only are we being forced to undergo humiliating drug screenings, but we are now mandated to visit the doctor’s office monthly in many cases. Since chronic pain patients are often disabled, the strain on the pocket book is often too much to handle.

    In Kentucky, the story is the same as what’s coming to Indiana. Kentucky House Bill 1 has caused cruel and inhumane treatment of the citizens of Kentucky since its inception. Check out what has been going on there at:

    https://m.facebook.com/profile.php?id=595049517218134&__user=100004736613852

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