Health Law Scan

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Hospice officials identified both best practices and challenges that hospice employees face when disposing of controlled substances in a patient’s home.

The US Government Accountability Office (GAO) released a report on April 14 detailing the challenges associated with the disposal of controlled substances in home hospice settings. As part of the October 2018 Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act), the GAO was tasked with conducting a review of controlled substance disposal in the home hospice setting. The GAO conducted a very limited review based on discussions with seven hospices and 11 state hospice association officials.

In the report, the GAO observes that challenges related to the disposal of controlled substances by hospice employees remain, notwithstanding Congress providing greater flexibility to hospice workers to dispose of such drugs following a patient’s death. Challenges include the high cost of mail-back or in-home disposal products, a lack of witnesses to the in-home disposal process, family members and caregivers who refuse to dispose of the controlled substances, and inconsistencies between state and federal laws concerning which hospice employees may dispose of controlled substances, particularly when a patient’s plan of care changes, no longer requiring pain control.

The SUPPORT Act allows only a Drug Enforcement Administration (DEA) registered physician to remove controlled substances from a hospice patient’s home, but physicians rarely conduct home visits. Noting that hospices use a range of strategies for mitigating diversion risks, the GAO report outlines various disposal practices used by hospices, including the following:

  • Educating patients and their caregivers on controlled substance use and disposal
  • Conducting prescription drug counts at each visit
  • Using a lockbox to limit access to a patient’s medications by unauthorized persons
  • Recruiting the cooperation of pharmacies to dispense smaller quantities of controlled substances with greater frequency
  • Disposing of controlled substances with a witness present
  • Using in-home disposal products
  • Documenting diversion risk assessments, drug counts, drug disposal, and the refusal of drug disposal by a patient’s family members

The GAO report also notes that the federal law and state laws related to disposal of controlled substances from hospice patients’ homes can be inconsistent. This likely inhibits the effective disposal of controlled substances, at odds with the hospice provisions in the SUPPORT Act.

Perhaps adding to the continued challenges of enacting a safe and effective controlled substance proposal is the fact that, although the US attorney general (i.e., the DEA) is authorized to promulgate regulations on this subject following the SUPPORT Act, the DEA has yet to do so.