(Pic by Fillmore Photography)
A new Florida law seeking to crack down on “pill mills” takes effect Friday, even as it remains under assault by a legal challenge in federal court.
Fort Lauderdale attorney Bernard Cassidy filed a lawsuit in a Tallahassee federal court on Sept. 23 on behalf of a company operating several pain clinics in the state, two other doctors, and a patient, all calling the new law unconstitutional.
But the lawsuit will not come before a judge until after the law takes effect, though Cassidy vowed to seek a halt to enforcement in the coming days.
“We will be seeking an injunction shortly,” Cassidy tells the Florida Independent.
At least one legal analyst believes the lawsuit may have a shot in front of a federal judge, and enforcement may not initially be as widespread as many hope, as the Florida Department of Health tries to allocate its scarce resources.
Florida lawmakers drew up the bill last year in response to the spread of prescription pain pills across the state, and amid record overdose deaths linked to powerful pain medications such as Oxycodone and Xanax.
Florida has also gotten a national reputation due to lax oversight of pain pill distribution. The state is seen as a hub for easy pill access across the country, according to the bill’s sponsor, state Sen. Mike Fasano, R-New Port Richey.
“It’s a crisis that has gotten out of control,” he says. “We have seven deaths every day in this state. It’s a mess, it’s an absolute mess.”
Lawmakers crafted a law that mandates stricter criteria for doctors who prescribe and dispense pain medication to register with the health department. The new law also puts restrictions on doctors who dispense pain medication from their offices in exchange for cash and restricts advertising by pain clinics.
The owners of the National Pain Institute — Drs. Jeffrey Zipper and Alexander Jungreis, who operate clinics in Delray Beach, Winter Park, and Tarpon Springs — and the other plaintiffs say the new law violates their rights. Neither Zipper nor Jungreis could be reached for comment.
In a complaint written by Cassidy, the doctors stated conditions for registration are so broad and far-reaching that doctors in the state cannot possibly know if they are subject to the law. The bill does not even specifically define pain management, causing some practitioners to “unknowingly be subject to registration,” Cassidy wrote on behalf of his clients.
The lawsuit goes on to attack the advertising restrictions as a violation of a business owner’s First Amendment rights and claims the law violates patients’ rights by restricting the number of pain medications a doctor can supply a patient during a visit.
“Rather than provide for rational measures to curb drug abuse and diversion through pill mills, the Act instead provides draconian measures that arbitrarily restrict patient access to health care as well as the lawful practice of medicine,” Cassidy wrote.
Sen. Fasano disagrees with the lawsuit and says he is confident it will stand up in court as constitutional.
The lawsuit calls a dispensing provision that states a doctor can only sell a patient paying cash or with a credit card, without insurance, a 72-hour supply of pain medication a violation of the patient’s right to proper medical care.
“It certainly does not infringe on a patient’s right to health care,” Fasano says. “A person without insurance can receive 72 hours of medication, and the law in no way prevents a doctor from writing a further prescription to be filled at a pharmacy.”
Fasano also scoffs at the notion that the law violates First Amendment rights.
“We are not saying they cannot advertise their services. But you can’t run an ad saying, ‘Need Oxycodone? Come and see me.’ That is a clear risk to public safety and that is what some of these places are doing,” Fasano says.
As for registration, any reputable doctor in the state who prescribes or dispenses pain medication should welcome the chance to register with the state, and the law outlines who must apply, Fasano, argues.
At least one legal expert believes the lawsuit might have merit in the eyes of a federal judge.
“There is some ambiguity there which could present a problem,” says Stetson University health law professor Jay Wolfson.
“The goal here is good,” he adds. “There have been abuses, and there are holes in the system that needs to be addressed. Unfortunately, some of the languages are overly broad.”
However, it may not be Cassidy’s injunction request that will take the new law to a higher court, but an eventual confrontation between the state and a practitioner, Wolfson says.
At some point, Wolfson says, there could be a challenge to a provision in the law that allows the state to search doctors’ medical records without a court order, should probable cause exist that a pain clinic is operating outside the new law.
“It will be the first time the state decides to go into someone’s business without a subpoena and demands to see medical records, or when a doctor refuses to go through the registration process and challenges it, that we will see a real debate in court,” Wolfson says.
Department of Health spokeswoman Eulinda Smith says it is too early to comment on the lawsuit because her agency, which is the named defendant on the lawsuit, has not been served.
A search of department records shows that the two doctors named as plaintiffs in the lawsuit, Drs. Amy Griswold and Bado Pyke, have never been disciplined by the state. National Pain Institute co-owner Dr. Zipper also has no record, while his partner, Dr. Jungreis, has twice been sanctioned by the Department of Health.
State records show that in 2008 the state fined Jungreis $5,000 after ruling a patient collapsed following surgery from a Lidocaine shot not properly documented in Jungreis’ surgery records.
Health officials also fined Jungreis $20,000 and placed his medical license on probation for a year in 2009, after ruling the doctor improperly gave a patient numerous steroid injections that later caused the patient to need a hip replacement, according to health department records.
