Drug Diversion and Abuse: "Do Not Fill Until?"

Author: Cmdr John Burke


John Burke, commander of the Warren County, Ohio, drug task force and retired commander of the Cincinnati Police Pharmaceutical Diversion Squad, is a 39-year veteran of law enforcement. Cmdr Burke also is the current president of the National Association of Drug Diversion Investigators. For information, he can be reached by e-mail at , via the Web site www.rxdiversion.com, or by phone at 513-336-0070.


Effective December 19, 2007, the final Drug Enforcement Administration (DEA) ruling in the Federal Register was that prescribers could write prescriptions for CII controlled substances for up to a 90-day supply. This ruling was a reversal of a November 2004 ruling that indicated that writing multiple CII prescriptions was equivalent to refilling that prescription.

This new ruling once again allows prescribers to write 3 prescriptions for a CII analgesic—1 of the prescriptions is available for immediate filling, and the other 2 cannot be filled until 30 and 60 days after the date written on the prescription. All prescriptions must be dated on the same day that they are written.

This practice was lawful prior to November 2004, and I touted it to thousands of physicians as a method to effectively reduce the amount of controlled substances in a residence. The diversion of a patient's prescription medication within his or her own home occurs more often than most people realize. This may be by theft by a friend, neighbor, a person doing work in the home, or even the caregiver.

Prior to November 2004, and now once again reinstituted in December 2007, this ruling allows prescribers to give a 90-day supply to a patient experiencing chronic pain without having to subject that patient to coming in to see the prescriber unless necessary. Of course, the side benefit is that the maximum supply of a CII controlled substance in these homes could then be a 30-day supply, instead of a 90-day supply.

The decision that was published in November 2004 was heavily criticized by law enforcement, attorney generals, health professionals, pain patients, at least 1 board of pharmacy, and yours truly. Three years later, prescribers once again have the ability to write in the manner described above. Prescribers must be sure they do not violate any state laws or regulations when following this course of conduct. Pharmacists have a responsibility not to fill these prescriptions earlier than the fill date indicated on the prescription by the prescriber.

This new ruling is a win?win situation for prescribers who want to more effectively treat their chronic pain patients and patients who will not be unduly inconvenienced in coming to the prescriber's office every 30 days. Law enforcement also will indirectly benefit, as reducing the diversion of these medications within the home can be an effective tool.

Countless cases over the years have involved people that were in the patient's home legitimately. In some of these cases, the patient is very well aware that the medications are being stolen, but does not want to report it to authorities for fear of alienating the person, especially if he or she is the caregiver, and possibly the only link to the outside world and their care. With some pills being worth up to $100 per piece, the lure of profit by a person in a chronic-pain patient's residence should not be a total surprise. In the most egregious cases I have seen, the caregiver is taking the drugs and leaving the patient with a reduced supply or none at all, incurring incredible pain on the patient with no regard or remorse.

My hope is that this ruling will now put this issue to rest and will not rear its ugly head a few years from now. In this case, I applaud the DEA for having the fortitude to reverse itself by using common sense and doing what is right for all concerned.