Update: pain management or pillbox? Supreme Court Hears Arguments Regarding Prosecution Standards for Practitioners Prescribing Narcotics | McGuireWoods LLP

Last week, the Supreme Court (Court) heard oral arguments in related cases Ruan v. United States and Kahn v. United States, regarding the application of the Controlled Substances Act (“CSA” or “the Act”) to medical practitioners. Through these cases, the Court is expected to resolve a divided circuit over the role of “good faith” as a defense for physicians charged with unlawful distribution of narcotics under section 841(a) of the Act (to see our previous article on the issues before the Court and the different approaches to good faith taken by the circuit courts). While the arguments did not offer a clear view of where the court is heading, three sticking points emerged that could inform the court’s decision.

First, the judges appeared to have differing opinions on the statutory interpretation of the CSA. Specifically, their questions focused on whether grammatically “knowingly and intentionally” can modify “except as permitted by this subchapter” in Section 841(a). Judge Alito suggested that “knowingly and intentionally” are adverbs and therefore could only “modify a verb”. Judge Breyer had a different understanding of the scope of adverbs, quoting his primary school English teacher, Mrs Chichester “who told us that an adverb could modify a verb, an adjective or another adverb”. The judges also disagreed on the significance of the “unless authorized” clause that precedes “knowingly and intentionally” in the law.

Second, judges offered variations of a hypothetical speeding offense to highlight the potential application of a subjective approach. Chief Justice Roberts began with an example of an individual stopped for speeding in Montana and noted that the individual would receive a ticket for going 70 mph in a 55 mph zone, even if the individual said to the officer he believed the speed limit should be higher because they were in the middle of Montana. The chief then moved to the prescription context and asked if a practitioner should get a jury instruction that “I realize the standard is . . . so many prescriptions per month or per year, but I think that should be it [many prescriptions].” Petitioner Ruan’s attorney conceded “you don’t get an instruction that says you can choose whatever rules you like” and countered that their proposed instruction “tells the jury to focus on intent.” Later, Justices Kavanaugh and Barrett each offered variations of the hypothetical speeding ticket to further illustrate how a subjective approach would be applied. Counsel for the plaintiffs both focused, in part, on the severity of penalties applicable to practitioners under the CSA by comparing the issue at issue to traditional regulatory offenses such as speeding.

The third, Judge Thomas asked about the overlap between the DEA’s regulatory regime and the existing framework for prosecuting physicians under the CSA. Specifically, Judge Thomas noted the lack of an “in-between step,” such as revoking a DEA registration before criminal prosecution, and expressed concern that the law currently appears to do “two things. at the same time with fairly significant criminal penalties”. .” The government attorney responded by suggesting that the law does not require revocation of a DEA registration to precede prosecution, as such a requirement would give doctors “a free shot” for breaking the law before prosecution.

The complexity of the legislative and regulatory landscape was evident from the oral arguments, and the justices did not offer their views on how the Court might rule. We will continue to monitor developments and await a decision from the Court which we hope will clarify the role of the criminal justice system in regulating the medical profession.

About Jessica J. Bass

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