Pain Clinic Legislation in Louisiana
John F. DeRosier, JD,
Calcasieu Parish District Attorney,
Lake Charles, LA
The Need for the Legislation
Calcasieu Parish, Louisiana, with approximately 190,000 residents, is located on the
western boundary of Louisiana adjacent to Orange County, Texas, separated geographically by
the Sabine River. The petro-chemical industry employs a substantial number of Parish residents,
and the Parish has a median family income of $41,903, with an unemployment rate below state
and national averages. According to the most recent census figures, the Parish’s racial mix is
74% White, 24% Black, with the remainder listed as “Other”.
I was elected District Attorney of Calcasieu Parish on December 10, 2005, after
campaigning against the backdrop of both hurricanes Katrina and Rita. Upon assuming office, it
became readily apparent that since the two hurricanes, DWI citations throughout the parish and
across southern Louisiana, had increased by approximately 58% from 2004 to 2006. This factor
precipitated a demographic and statistical analysis of the ongoing DWI citations. The results of
the survey indicated that impaired driving was being caused ever increasingly by the abuse of
prescription medications. Two years later, we find that drivers are impaired more often by
prescription medication abuse than by alcoholic beverages. An indication of this shift is the
number of arrested drivers refusing to take a urine test. The percentage of arrestees refusing to
take a urine test (which is more capable of detecting drug use) increased from under 40% to
substantially greater than 55% during 2006-2008 to date. In the calendar years 2006 and 2007,
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death by overdose of prescription medications was averaging 50-100 per year in Calcasieu
Parish, a rate of 25-50 per 100,000 people.
In the part of Texas across the border from Calcasieu, the difficulties with deaths caused
by overdose of prescription medications exploded between 2005 and 2006. The sheriff of
Jefferson County (Beaumont, TX) has indicated that in the calendar year 2005, five people in
Jefferson County died from overdose of prescription medications. In 2006, that number jumped
to fifty-five deaths.
In early 2007, a conference was held among various stakeholders at the Harris County
D.A.’s Office in Houston, Texas to discuss the common issues of the abuse of prescription pain
medications and “doctor shopping” along the I-10 corridor between Orange County and Harris
County, Texas and Louisiana. Forming a Texas/Louisiana Task Force and working closely with
our Parish Coroner and chief investigator (interviewing survivors and witnesses, and recovering
prescription drug containers), we learned that the points of origin for many drugs were pain
management clinics located in those counties. These are clinics that engage primarily in the
treating of pain by the use of prescription narcotics. It was determined that the proliferation of
pain management clinics along the I-10 corridor was the result, in substantial part, of the lack of
legislation controlling such clinics in the state of Texas. Texas has no law requiring that pain
management clinics be owned and/or operated by licensed physicians, nor does Texas have a
doctor shopping statute. Pain clinics located along I-10 in part for the convenience of people
driving in from Louisiana. This determination came too late for any presentation relative to these
two legal issues in the 2007 Texas regular session.1 Texas law enforcement has joined with law
enforcement agencies from Louisiana, as well as administrative agencies in Texas and several
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The Texas Legislature meets only every other year; therefore, there was no legislative session in 2008.
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federal law enforcement agencies, to address these problems from an administrative and
legislative perspective.
The Statute
The Louisiana Legislature took action relative to this problem by passing LICENSURE
OF PAIN MANAGEMENT CLINICS (La. R.S. 40:2198.11), effective July 1, 2005,which
basically defines “pain management clinics” as facilities which primarily engage in the treatment
of pain by prescribing narcotic medications. If 51% or more of the patients seen on any given
day are issued pain management medications for chronic non-malignant pain, this clinic meets
the basic definition of “pain management clinic.” This statute is supported by administrative
regulations authorizing the Louisiana Department of Health and Hospitals to act as the
enforcement arm of the State of Louisiana. One of the most important provisions of the act
requires that all pain management clinics shall be “owned and operated by a physician certified
in the subspecialty of pain management….” The licensure act was opposed by the industry,
which resulted in several exemptions being introduced into the bill.
Louisiana has also passed a related bill, La. R.S. 40:971.2, cited as the “Pain
Management Clinic Drug Abuse and Overdose Prevention Act,”, effective August 15, 2007,
which makes it unlawful for any physician or other licensed health care practitioner to assist
anyone in obtaining Controlled Dangerous Substances through misrepresentation, fraud, etc.
Violation of the statute carries a penalty of up to five years imprisonment and a fine of not more
than $50,000.00.
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It is anticipated that the Texas legislature will pass a Pain Management Clinic Regulatory
Act, as well as a doctor shopping statute in the upcoming session. I am working with various law
enforcement and administrative agencies in Texas, as well as several Texas legislators, on the
drafting of a Texas Pain Management Clinic Regulatory Act as well as a Doctor Shopping Act.
Early Experience with the Statute
The statute promulgated by the LICENSURE OF PAIN MANAGEMENT CLINICS
Act, while relatively new, shows significant promise in the war against prescription drug abuse.
While no legal challenges are known at this time, it is anticipated that there will be challenges to
the Act. Exemptions written into the original bill are currently providing some level of difficulty
in the enforcement of some provisions of the act and its administrative regulations, and
amendments are contemplated for the 2009 legislative session. Particular attention should be
paid to the exemption for “urgent care facilities” in existence prior to June 15, 2005 and to the
exemption regarding facilities supplementing the prescription of pain management medication
with “other treatment modalities.” The legislation should also expressly authorize health and
professional regulatory agencies to inspect and investigate pain management clinics.
Several states have adopted Pain Management Clinic Advisory Councils (New Mexico)
and (Wyoming – WY ST Section35-25-206) or Pain Management Commissions (Oregon), which
are designed to study chronic pain management issues and report back to appropriate
governmental agencies. West Virginia has adopted an interesting statute in W. VA. Code.
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Section 30-3A-2 which presents the issue of sanctions, civil or criminal, in a very curious
fashion. The statute states that physicians that issue dosages of Controlled Dangerous
Substances in excess of the average doses for pain relief, cannot be prosecuted criminally or be
subject to disciplinary sanctions by a licensing board if the physician can demonstrate by
reference to an accepted guideline that his or her practice complies with that accepted guideline.
Evaluation of the Statute
I believe that the very existence of the licensure act has resulted in a significant reduction
in the number of pain management clinics planning to operate in Louisiana. Though various
services might be offered by entities claiming to be pain management facilities (e.g., some
acupuncture clinics advertise themselves as such), we know that 125-150 entities advertised as
pain management facilities prior to passage of the Act. Since then, the Department of Health and
Hospitals has received only ten requests for pain management clinic licensing packets, and
estimates that no more than ten additional requests will be received. Of greater importance, our
coroner estimates that, if the current 2008 rate of deaths in the Parish from prescription drug
overdoses continues to the end of the year, the Parish will experience roughly a 50% reduction in
such deaths from the 2006-2007 time period.
Uniform state, if not national, pain management clinic regulatory schemes that would, by
definition, identify pain management clinics by utilization rather than by designation should be
passed. This should include regulations relative to ownership and operation, as well as
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administrative regulations giving investigative and inspection rights to state medical boards to
determine the status of medical providers who treat chronic non-malignant pain.
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