The DEA alleges that the dosages were so high that patients must be selling some of the drugs, even though they present no evidence of any such activity by patients.
One of the few remaining physicians willing to prescribe—and advocate for—high-dose opioids for certain patients with hard-to-treat chronic pain is now under investigation by the Drug Enforcement Agency (DEA). The case of California pain and addiction specialist Forest Tennant terrifies pain patients and their physicians, who fear that it could lead to de facto prohibition of opioid prescribing for chronic pain and even hamper end-of-life care.
The DEA raided Tennant’s home and offices on November 15, while he was traveling after serving as an expert witness in the trial of another doctor accused (and later convicted) of illegal prescribing. Tennant is accused of “profiting from the illicit diversion of controlled substances” and being part of a “drug trafficking organization.” Agents confiscated patient records and financial documents during the raid.
Tennant is the author of more than 100 scientific publications listed in PubMed. He’s the recent recipient of a lifetime achievement award for his research and work with the most difficult-to-treat patients. He helped write California’s “Pain Patients’ Bill of Rights” legislation. He served as mayor of his town, West Covina, twice. And he is widely known as the doctor of last resort for “pain refugees” whose doctors have either quit prescribing opioids or refuse to use high doses. This would be quite an unusual resume for a “pill mill” proprietor.
Tennant’s record is not spotless, however: in 1997 he was fined $625,000 by the federal government in a case related to the methadone programs he ran at the time for failing to comply with the notoriously complex regulations on the storage and dosing of the medication. And, in the early 00s, he was convicted of insurance fraud, which meant that his medical license was probationary for four years. But since then, his license is current and he remains respected in his field.
The raid comes in the context of an ongoing crackdown on the use of opioids for chronic pain, which advocates say has increased suffering and even driven some patients to suicide. Following the 2016 introduction of the Centers for Disease Control and Prevention’s opioid prescribing guidelines, many patients report either being forced to reduce their dose, even if they are more functional on the higher dose, or to stop taking opioids entirely. Although the CDC guidelines were not intended as rigid mandates, many doctors fear criminal prosecution if they do not comply—and Tennant’s case seems likely to amplify and justify those fears.
Under federal law, opioids may only be prescribed “for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice.” But doctors—not the DEA—are supposed to determine what purposes are medically acceptable. Physicians are only supposed to be criminally charged with drug dealing if they are selling prescriptions to make money or trading drugs for sex—not for simply prescribing doses that law enforcement agencies mistrust because they do not understand concepts like tolerance and genetic variation.
“I think it’s a really disturbing example of the irresponsible way in which law enforcement, including the DEA, have been deploying their resources,” says Leo Beletsky, associate professor of law and health sciences at Northeastern University, of the Tennant case. Beletsky explains that, in order to ensure balance between access to medication and drug control, targets for prosecution must be chosen carefully. He says he hopes Tennant wasn’t targeted because of his advocacy “but it certainly seems like a strange coincidence that he has also been an outspoken critic.”
Genuine illegal prescribing usually isn’t that hard to identify. James DuBois is the co-author of a 2016 study on physician prescribing prosecutions and a professor of medical ethics at Washington University in St. Louis. “We saw things like people who were listed as the physician of record who never saw the patient or saw the patient but took no medical history,” DuBois says, or “people who would take cash for a particular prescription and people who would trade prescriptions for sex or cocaine.”
Illegal prescribing can also be associated with high numbers of overdose deaths among patients. And, when it occurs, undercover agents are typically able to obtain prescriptions for cash without medical justification from the doctor in question. Dubois says the majority of doctors who were convicted in the cases he examined had a clear “profit motive,” while some cases involved physicians who had addictions themselves.
Tennant’s current practice includes around 150 patients—around 15 percent require end-of-life palliative care, he tells Tonic. That’s hardly enough to make even an ordinary practice excessively profitable (a typical primary care doc has a patient load of around 2,000 and pill mills squeeze in many more). No overdose deaths associated with Tennant’s practice were mentioned in the search warrant and no undercover agent was reported to be able to get an illegitimate prescription from him.
His patients say that Tennant spends hours examining and counseling them and requires tons of paperwork—again, the opposite of what happens in a pill mill, which typically involves a rushed exchange of payment for a prescription with little examination or record-keeping.
The main evidence presented in the search warrant in the case against Tennant is that he has prescribed extremely high doses of opioids to some patients, based on prescription drug monitoring data. The document alleges that these dosages were so high that patients must be selling some of the drugs, even though they present no evidence of any such activity by patients.
In this, it is reminiscent of the case of Richard Paey, a pain patient with multiple sclerosis who was convicted and sentenced to 25 years in prison because the dose of medication he took was seen as so high that it must be evidence of trafficking, even though surveillance video never revealed him selling any drugs. Fortunately, he was eventually pardoned.
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One of Tennant’s patients, Ryle Holder, is a pharmacist taking high-dose opioids for a painful condition called arachnoiditis. Holder told Pain News Network, “For them to even remotely think I’m out on the streets selling this stuff is a joke. It makes me angry…I’ve got a license to protect. That’s the last thing I’d do…They don’t have any evidence that I’ve sold anything. It’s just ludicrous.”
“I’ve read the search warrant,” says Stefan Kertesz, associate professor of preventive medicine at the University of Alabama and an expert on opioid safety. “The core case is that a physician in California who teaches about opioid prescribing believes that [Tennant’s] prescribing is not appropriate,” he says. “There are lots of discussions we should be having about high doses and the risk they present, but prescribing or embracing high doses of opioids does not signify a criminal intention.”
Tennant’s prescribing of fentanyl and receipt of speaking fees from one manufacturer, Insys, were also cited as evidence of criminal behavior in the warrant, because the company is under investigation for illegally marketing that drug. Tennant, however, says he last received such fees in 2015, before that investigation was public and he is far from alone in the profession in taking pharmaceutical money for speaking. In addition, his ties to a pharmacy used by many of his patients were mentioned—but evidence of actual wrongdoing was not provided. Finally, the fact that many of his patients traveled long distances to see him was touted as a further “red flag.”
“If you didn’t know what I did and who I was, I could see how you might think that,” Tennant says of the way the warrant described his prescribing patterns and the high number of out-of-state patients, “But everyone knows I’ve been taking these difficult cases who fail other treatment… it goes beyond my comprehension: why didn’t [they] just come and talk to me? This has been an open book. Patients pay low fees and there are some charity cases. We’re not a pill mill.”
Anne, who only wanted her first name published, is another of Tennant’s patients. She has a painful genetic condition called primary generalized dystonia, which causes agonizing spasms and rigidity. High-dose opioids are the only treatment that allows her to function. When her last doctor decided to stop prescribing, the Alabama woman contacted more than 60 physicians before she could find one willing to help.
She received a reply from Tennant when she was just about to give up. She’d made plans to give away her beloved tabby cat, Sissy, because without medication, she wouldn’t be able to care for her. Anne says of her reaction to learning he’d take her on as a patient: “I’ve never bawled so much in my life.”
Today, Anne is outraged—and terrified—by the investigation. She described her initial visit with Tennant as lengthy, including an extensive examination and consultation. She had to fill out highly detailed forms about her medical history and experience of prior treatment.
“It’s the best documentation I’ve ever seen,” she says. Tennant says his intake process generally takes about six hours and that he will not see patients who cannot bring a friend or family member with them so that he knows they have support to manage often-complex dosing regimens and other needs. In many cases, he winds up lowering opioid doses, when that turns out to be appropriate.
Tennant told the Pain News Network that “I understand what [DEA is] after. They figure if they go after the big guy, then no one will prescribe… If they’re going to hurt me, no doctor is going to be willing to prescribe or do anything. That’s what they’re attempting to do. They’re attempting to neutralize me if they can. And I think there needs to be an outcry.” When reached for comment, the DEA said it cannot comment on open cases.
Anne and other patients are organizing to ensure that, in this case, their side of the story is heard—as it has not been in many other instances where doctors have been put on trial for illicit opioid prescribing. Like many others, she says she doesn’t know how she’ll be able to survive if Tennant’s practice is shut down.
Tennant’s only real crime seems to be taking on complicated patients that other doctors have become scared to see. Unless there’s damning evidence that the government has unaccountably concealed, this case seems to have been brought to send a message—not to protect the public.
Under the law, to be convicted of drug trafficking, a doctor must knowingly and intentionally become a pusher rather than a physician—she shouldn’t be able to be convicted just because government agents don’t like the doses of opioids she prescribes or her political views on drug policy.
Essentially, this case is an example of letting law enforcement regulate medicine—and criminalizing what might otherwise be a malpractice case related to failure to follow the standard of care. It means that doctors who fully believe they are prescribing appropriately can be labeled as drug dealers. Consequently, even if a patient clearly requires a massive dose to function normally because of tolerance, genetic, metabolic, or other reasons, doctors cannot determine that a prescription will be seen as legal.
Prosecuting someone who is clearly practicing medicine—no matter how controversial—is legally out of bounds. For the safety of both pain patients and people with addiction, whose treatment with maintenance drugs like suboxone and methadone is also regulated by the DEA, we need to keep it that way.
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