PROTECTING DR. SMITH WHILE TREATING THE CHRONIC 
PAIN OF MRs. JONES: 

WHY THE INDIANA MEDICAL LICENSING BoARD SHOULD 
PASS GUIDELINES FOR USING CONTROLLED SUBSTANCES 

FOR PAIN TREATMENT 

Macon Jones • 

"The end of law is not to abolish or restrain, but to 
preserve and enlarge freedom. For in all the states of 
created beings, capable of laws, where there is no 
law, there is no freedom. " 
-John Locke1 

I. INTRODUCTION .......................................... ; .................................... 696 
II. BACKGROUND ................................................................................ 699 
III. THE CURRENT STATUS OF INTERESTED PARTIES FOR INDIANA'S 

POLICIES CONCERNING CONTROLLED SUBSTANCE PRESCRIBING FOR 
PAIN TREATMENT ........................................................................... 701 
A. The Patient ............................................................................... 701 
B. The Prescribing Physician ....................................................... 703 

1. Duty to Treat Patient Pain ................................................ 703 
2. Interest in Perpetuating Practice in Medicine .................. 704 

C. The Office of the Indiana Attorney General ............................. 706 
D. The Indiana Medical Licensing Board ..................................... 708 

IV. THE GUIDELINE SOLUTION ............................................................. 709 
A. The Model Policy ..................................................................... 709 
B. The Michigan Guideline .......................................................... 711 
C. Indiana's Attempt to Promulgate a Rule for Using Controlled 

Substances in 4 Pain Treatment Setting ................................... 713 
D. How a Guideline Would Operate Under Indiana's Statutory 

Scheme ................................................... -.................................. 715 
V. THE ROLE OF A GUIDELINE TO ACHIEVE AND BALANCE ALL 

INTEREST ........................................................................................ 716 
A. A Guideline Will Clarify the Law and Create Case Evaluation 

Criteria ..................................................................................... 717 

• J.D. Candidate, 2012, Indiana University RQbert H. McKinney School of Law; B.A., 2005, 
University ofNorth Florida. 

1. JOHN LocKE, THE SBOOND TREATISE OF CML GoVERNMENT CHAP. VI, SEC. 57 
(1690). 



696 INDIANA HEALTH LAW REVIEW · [Vol. 9:2 

1. The Indiana Medical Licensing Board Members Are Not 
Pain Management Specialists ................... ; .. ; .................... 717 

2; The Case of David and Charles Chube ............................. 718 
B. Clear Standards Put Physicians on Notice as to Proper 

Prescribing Practices ............................................................... 722 
1. A Guideline Will Alleviate Fear of Regulatory Scrutiny ... 722 
2. A Clear Guide Will Enable Proper Defense ...................... 723 

C. The Patients Will Receive Better Treatment ............................ 725 
VI. THE CASE AGAINST A GUIDELINE .................................................. 725 

A. There is No Enforceability With a Guideline ........................... 725 
B. Restricts the Practice of Medicine ........................................... 728 
C. Specific Standards Are Not Necessary to Achieve Physician 

Discipline ................................................................................. 729 
D. Patient Concern of Required Documentation .......................... 729 

Vll. CONCLUSION .................................................................................. 729 

I. INTRODUCTION 

A war is raging; it is one that includes all members of society: the in­
digent, wealthy, young, old, and all flavors of race, nationality, and gender. 
It is the war on prescription medication. According to the Drug Enforce­
ment Administration ("DEA"), six million Americans currently abuse a 
prescription drug, which is more than abusers of heroin, cocaine, hallucino­
gens, and inhalants combined.2 1.85 million people are estimated to be de­
pendent on or abusing schedule II controlled substances, also known as 
opioids.3 In 2009, 1.2 million individuals were treated in an emergency 
department for conditions involving pharmaceutical drug use, which is a 
ninety-eight percent increase from 2004.4 This increase is especially star­
tling considering that emergency room treatment involving illicit drugs has 
remained virtually unchanged over the same period.5 In response, Federal 
and State governments have taken multiple steps to address this serious and 
growing problem. On September 25, 2010, the DBA held its first ''National 

2. Practitioner's Manual, DRUG ENFoRCEMENT ADMIN. OFFICE OF DIVERSION 
CoNTROL, http://www.deadiversion.usdoj.gov/pubs/manuals/ptact/sectionl.btm (last visited 
Mar. 11, 2012). 

3. Cynthia Gregorian, Addiction to painkillers hobbles more patients, STL TODAY 
(Oct. 27; 201 0), http://www.stltoday.comllifestyleslhealth-med-fitlfitnesslarticle _ :ffi777202-
785b-5703-9319-l7df8d32c29b.html. Schedule II controlled substances are beneficial and 
effective medications that also have a high potential for abuse and addiction, thus, their use 
is regulated. 21 U.S.C. § 812(bX2)(201l). 

4. Abby Goodnough, Prescription Drug Abuse Sends More People to the Hospital, 
N.Y .. TIMES, Jan. 5, 2011, http://www;nytimes.com/2011/01/06/bealth/06drugs.html?_ 
r=2&ref=bealth. 

5. Id 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 697 

Prescription Drug Take Back Day" which allowed anyone to return unused 
prescription medication with no questions asked 6 This activity was moti­
vated by the desire to reduce the amount of unused medication available for 
diversion.7 Further, in recent years the DEA has stepped up its investiga­
tions and prosecutions of physicians, especially those who prescribe Oxy­
Contin, a schedule II controlled substance and one of the most widely 
prescribed and abused opioids. 8 

Indiana has a particularly concerning controlled substance abuse prob­
lem. In the most recent Substance Abuse and Mental Health Services Ad­
ministration ("SAMHSA") report, Indiana ranked among the highest in the 
country for non-medical ~in reliever use in all age groups except ages 
twelve through seventeen. However, Indiana has also adopted measures to 
combat prescription drug abuse and diversion, including Indiana's con­
trolled substance monitoring program ("INSPECT" program) created in 
2006,10 and the passage by the state legislature of the Prescription Drug 
Disposal Sites - House Bill 1121,11 which would allow individuals to return 
unused medications to their pharmacy for proper disposal.12 Also, in the 
past year the Office of the Indiana Attorney General has prosecuted numer­
ous physicians who divert and improperly prescribe prescription drugs.13 

Prescription drug abuse has become a crisis nationally and in Indiana and 
more safeguards are needed. 

However, in developing additional safeguards by regulating access to 
prescription drugs, one must be careful not to unnecessarily restrict access 
from legitimate users.· While prescription drugs are widely abused, they can 
also provide life altering relief from pain that cannot otherwise be treated. 
As a casualty in the war on prescription drug abuse, undertreated pain has 
quietly become a nationwide epidemic.14 Many factors contribute to under-

6. National Take Back Initiative, DRUG ENFORCE. ADMIN. OFFICE OF DIVERSION 
CONTROL, http://www.deadiversion.usdoj.gov/drug_disposalltakeback/ (last visited Jan. 17, 
2011). 

7. ld. 
8. Ronald T. Libby, Treating Doctors as Drug Dealers: The DEA 's War on Prescrip­

tion Painkillers, 545 PoL. ANALYSIS 1, 1 (2005), available at http://www.cato.org/pubs/pas/ 
pa545.pdf. 

9. SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., U.S. DEP'T OF HEALTH & 
HUMAN SERVS.,INDIANA, STATES IN BRIEF: SUBSTANCE ABUSE AND MENTAL HEALTH ISSUES 
AT-A-GLANCE, A SHORT REPORT FROM THE OFFICE OF APPLIED STIJDIES (2009), available at 
http://www.samhsa.gov/statesinbriet72009/INDIANA_508.pdf. 

10. IND. CODE§ 35-48-7-10.1 (2010). 
11. H.B. 1121, 117th Gen. Assemb., 1st Reg. Sess. (Ind. 2011), available at 

http:/ /www.in.gov/legislativelbills/2011/PDFIHBIHB 1121.2.pdf. 
12. Press Release, Ind. Att'y Gen., AG, legislators support bill for safe disposal of 

prescription drugs (Jan. 10, 2011 ), http://www.in.gov/attomeygeneral/2369.htm. 
13. See Findings of Fact, Ultimate Findings of Fact, and Order, In the Matter of the 

License of Beverly P. Edwards, 2009 MLB 0024 (Ind. Med. Licensing Bd.,, Mar. 30, 2010) 
[hereinafter Edwards, Findings ofFact and Order]. 

14. Ben A. Rich, A Prescription for the Pain: The Emerging Standard of Care for 



698 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

treated pain, but one important influence is physician concern about both 
law enforcement and regulatory scrutiny: physicians are reluctant to pre­
scribe adequate amounts of controlled substances for pain because of the 
potential for investigation by the DEA and the state medical licensing 
board.15 As a result, patients indirectly suffer from amped-up efforts to 
control prescription drug abuse by focusing on physician prescribing prac­
tices. Therefore, regulations placed on prescription drugs must consider all 
interests implicated and fashion a strategy that serves to address prescrip­
tion drug abuse while allowing doctors to adequately treat the pain of their 
patients. 

This Note will argue that the Indiana Medical Licensing Board should 
pass guidelines for the use of controlled substances for the treatment of 
pain. Guidelines would address the ever-increasing concern over prescrip­
tion drug abuse by creating a standard that would allow physicians to pre­
scribe proper amounts of controlled substances for pain treatment without 
fear of investigation. In addition, guidelines would provide a method for 
the Office of the Indiana Attorney General to assess and take appropriate 
action against physicians who use medicine as a pretext for diversion and 
ultimately are not prescribing for legitimate medical purposes and give the 
Indiana Medical Licensing Board an evaluation tool to properly scrutinize 
physician prescribing practices. This Note will consider the interests impli­
cated by the adoption of guidelines for controlled substances in the context 
of pain treatment including patients, physicians, the Office of the Indiana 
Attorney General, the Indiana Medical Licensing Board, and Indiana citi­
zens generally. Further, this Note will consider several disciplinary actions 
and criminal convictions of Indiana physicians who have been disciplined 
for their prescribing practices and compare Indiana law and regulations with 
the efforts of Michigan in the area of pain management using controlled 
substances. This Note concludes that guidelines adopted by the Indiana 
Medical Licensing Board will serve all interests involved and will amelio­
rate prescription drug abuse and diversion while alleviating undertreated 
pain and physician fear in Indiana. 

Pain Management, 26 WM. MITCHELL L. REv. 1, 2 (2000); see also David B. Resnik et al., 
The Undertreatment of Pain: Scientific, Clinical, . Cultural, and Philosophical Factors, 4 
MED. HEALTH CARE PHIL. 277 (2001) (arguing that undertreatment of pain is due to a faulty 
philosophical approach to pain management); Steven E. Stark, Bio-Ethics and Physician 
Liability: The Liability Effect of Developing Pain Management Standards, 14 ST. THOMAS L. 
REv. 601, 638 (2002) ("There is an increasing perceived inability of the medical profession 
to deliver adequate pain management and adequate palliation of pain to those with acute or 
chronic illness and to those with terminal illness."); but see Norman Miller et al., Controlled 
Substance Laws: Are They Meeting the Health Needs of the Public?, 7 MICH. ST. J. MED. & 
LAW 81, 83 (2003) ("In the past ten years or so, a growing mood of entitlement of absolute 
pain relief has obscured decades of hard earned wisdom that narcotic medications contain 
inherent 'pain' ftom their pharmacological effects, and addictive properties that are not ne­
gated by the presence of pain in an individual.''). 

15. Aaron Gilson, et al., Improving State Medical Board Policies: ltifluence of a Mod­
el, 31 J.L. MEn. &Ennes 119, 119 (2003). 



2012] GUIDELINES FOR USING CoNTROLLED SUBSTANCES FOR PAIN 699 

II. BACKGROUND 

In Indiana, there are two agencies that are involved in regulating the 
professional practice of physicians~ The Office of the Indiana Attorney 
General ("AG") is the investigative and prosecutorial arm, 16 and the Indiana 
Medical Licensing Board ( .. Board") is the entity that licenses and disci­
plines physician practice.17 Any action conducted by these agencies only 
relates to the physician's license and ability to legally practice medicine in 
Indiana.18 No criminal penalties are imposed, although a finding of unpro­
fessional conduct allows for discipline on the physician's license.19 The 
process begins when the AG receives allegations of improper physician 
conduct, which can come from a variety of sources, including patient com­
plaints~ other state disciplinary committees, media outlets, and the Board 
itself.2u 

After receiving this information, the AG conduc~ an investigation of 
the alleged conduct, including a response to the allegations by the physician 
in question.21 After a thorough review of the information available, the AG 
makes a recommendation of the action to be taken and submits it to a mem­
ber of the Board for their comments and impressions. 22 Based on the Board 
member's comments and in-house attorney recommendations, the AG will 
then decide whether to file a formal administrative complaint against the 
physician or close the matter altogether?3 In the event that the AG decides 
to take action against the physician's license, they will file a formal admin­
istrative complaint with the Board. 24 The complaint will allege that the 
physician has committed a licensing violation under Indiana Code ("IC") 
section 25-1-9-4, 25 which is commonly referred to as the Licensing Charg- · 
ing Statute.26 The physician will then either decide to settle with the AG, 
subject to the Board's approval; or defend the allegations in an administra­
tive hearing before the Board.2 The AG serves as the prosecution in the 

16. IND. CODE§ 25-1-7-7 (2010). 
17. IND. CODE § 25-22.5-2-7 (20 1 0). The Board is a subset of the Indiana Professional 

Licensing Agency ("IPLA") which is the official agency charged with regulating all profes­
sional practices in Indiana 1Ulder IND. CODE§ 25-l-5-3 (2Gl0). 

18. IND. CODE§. 25-22.5-2-7 (2010). 
19. IND. CODE§ 25-1-94 (2010). 
20. See Consumer Complaints, OFFICE OF THE IND. Arr'Y GENERAL, http://www.in. 

gov/attomeygeneral/2434.htm (last visited Mar. 11, 2012). · 
21. Interview with Gabrielle Owens, Section Chief. Licensing Enforcement and 

Homeowner Protection Unit, Office of the Ind. Att'y Gen., in Indianapolis, Ind. (Feb. 28, 
2011) (on file with author). 

22. Id. 
23. Id. 
24. !d. 
25. Id 
26. ld. 
27. Id; see also Stipulated Findings of Fact, Stipulated Conclusions of Law, Ultimate 

Conclusions of Law, and Order, In the Matter of the License of Michael A. P\Ulnett, 2009 



700 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

hearings. 28 

The hearing takes place before the Board, which is comprised of up to 
seven members appointed by the Govemor?9 Six Board members are phy-'­
sicians from all over Indiana, and at least one physician must be a doctor of 
osteopathy while the other five must be doctors of medicine. 30 The last 
member is a consumer member that can be anlt citizen of Indiana and serves 
as a representative of all Indiana consumers. 1 The Board is charged with 
regulating physician practice in Indiana and protecting consumers from 
fraud and abuse by licensed physicians. 32 The Board primarily consists of 
physicians because it is believed that they are in the best position to evalu­
ate medical practice. 33 As such, the Board promulgates rules for the prac­
tice of medicine, approves physicians for licensure, and disciplines 
physicians who violate Indiana law and the professional standards for the 
practice of medicine set by the Board. 34 The Board may discipline the phy­
sician's license by issuing a letter of public reprimand; by taking action on 
the physician's license, including revocation, suspension, or probation; by 
imposing fines up to $1,000 for each violation; or by a combination of the 
penalties listed. 3 

In order to impose disciplinary action on a physician's license, the 
Board must find that the physician violated one of the thirteen provisions 
found under IC 25-1-9-4 ("Charging Statute").36 Such provisions prohibit 
physician-patient sexual relations, prescription drug diversion, the use of 
material deception to obtain a license to practice, failure to keep abreast of 
current professional theory or practice, and others.37 Moreover, the Board 
is authorized to promulgate additional rules,38 a violation of which would 
constitute varying violations of the charging statute. 39 These rules are tai­
lored to address "Standards of Professional Conduct and Competent Prac­
tice of Medicine" and are codified in the Indiana Administrative Code 
("lAC") title 844, section 5.4° For example, IC 25-1-9-4(a)(4)(B) requires 

MLB 0032 (Ind. Med. Licensing Bd., Jun. 30, 2010). 
28. IND. CODE§ 25-1-7-2 (2010). 
29. IND. CODE§ 25-22.5-2-1 (2010). 
30. IND. CODE§ 25-22.5-2-1(1) (2010); IND. CODE§ 25-22.5-2-1(2) (2010). 
31. IND. CODE§ 25-22.5-2-1(3)(2010). 
32. IND. CODE§ 25-22.5-2-7 {2010). 
33. See generally IND. CODE § 25-22.5-2 (2010). 
34. IND. CODE§ 25-22.5-2-7 (2010). 
35. IND. CODE§ 25-1-9-9 (2010). 
36. IND. CoDE§ 25-1-9-9 (2010). This statute recognizes two other specific instances 

in which the Board has authority impose discipline, which are Indiana Code section 25-1-9-
6.8, "Practitioner guidelines before prescribing stimulant medication for a child for treatment 
of certain disorders," and Indiana Code section 25-1-9-6.9, ''Failing to provide or providing 
false information to agency." However, these statutes are rarely invoked and the discipline 
in the scope of this Note is covered under the charging statute. 

37. IND. CODE§ 25-1-9-4 (2010). 
38. IND. CODE§ 25-22.5-2-7(2010). 
39. See IND. CODE§ 25-1-9-4 (2010). 
40. 8441ND. ADMIN. CODE 5 (2010). 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 701 

physicians to "keep abreast of current professional theory and practice,'.41 

and a violation of 844 lAC 5-3-3, which disallows treatment based on on­
line questionnaires,42 would invoke. the charging statute causing the AG 
complaint to charge the physician with a violation ofiC 25-1-9-4(a)(4)(B) 
to wit, 844 lAC 5-3-3, because the Board must prosecute for a violation of 
the charging statute.43 While some of the provisions appear to be criminal 
in nature, all provisions under the charging statute are licensing violations 
subject to discipline by the Board against the physician's license.<w 

III. THE CURRENT STATUS OF INTERESTED PARTIES FOR INDIANA'S 

POLICIES CONCERNING CONTROLLED SUBSTANCE PRESCRIBING FOR PAIN 

TREATMENT 

When statutes, regulations, or policy statements are adopted, passed, 
and implemented, unintended parties may be affected for good or ill. Espe­
cially in the area of health law, where life-saving work is being performed, 
a careful examination of all implicated parties is necessary to properly bal­
ance the interests and devise an appropriate strategy for accomplishing the 
desired goal. For the purposes of this Note, the interested parties are pa­
tients, prescribing physicians, the AG, the Board, and the general public. 
Patients receive pain treatment through appropriate physician prescribing; 
the physicians prescribe and earn a living through their practice; the AG is· 
empowered by the state to protect the health and welfare of Indiana citizens 
by bringing complaints against licensed Indiana physicians; the Board is 
empowered to protect the health and welfare of Indiana citizens by disci­
plining the license of Indiana physicians; and, the Indiana public has an in­
terest in protection from prescription drug abuse. 

A. The Patient 

In the context of using controlled substances for pain treatment, the 
patient's interest is receiving safe and effective pain treatment and relief 
from suffering.45 Patients are the ones who are experiencing pain and are in 
need of help. Generally, three types of pain are recognized: acute, chronic 

41. IND. CoDE§ 25-1-9-4(a)(4XB) (2010). 
42. 8441ND. ADMIN. CODE 5-3-3 (201 0). 
43. Edwards, Findings ofFact and Order, supra note 13. 
44. For example, Indiana Code section 25-1-9-4(a)(8)(A) which states "a practitioner 

has diverted: a legend drug (as defined in IC 16-18-2-199)" is a licensing violation subject 
to discipline by the Board under Indiana Code section 25-1-9-9, but would also be a viola~ 
tion of Indiana Code section 35-48-4-2, "Dealing in a schedule I, IT, or ill controlled sub­
stance," and subject to criminal prosecution as a Class B felony. 

45. Rich, supra note 14, at 31 ("The suffering at issue is that of the patient with whom 
he or she has entered into a professional relationship.''). 



702 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

non-cancer pain, and chronic cancer related pain.46 This Note will address 
chronic non-cancer pain because such pain is outside the scope of palliative 
care and is frequently targeted by guidelines and provisions to prevent 
abuse and addiction. 47 . · · 

"Chronic non-cancer ~ain is. associated with significant economic, so­
cietal, and health impact.' 8 On the economic front, the cost of uncon-:­
trolled non-cancer chronic pain is extreme. In 1998 it was estimated that 
total expenditures for back pain was $90.7 billion and, on average, people 
with back pain cost health care insurance providers sixty percent more than 
those without back pain.49 "It was estimated [in 1998] that the cost of 
health care for patients with chronic pain might exceed the combined cost 
of treating patients with coronary artery disease, cancer, and AIDS.',so 
From a societal perspective, undertreated pain directly impacts a patient's 
quality of life. 51 It is not easy living with unremitted moderate to severe 
pain, and, in certain cases, excessive pain can lead to depression and even 
suicide. 52 Undertreated pain has been equated and compared to inflicting 
pain on the suffering patient and, as such, has implicated ethical and judi­
cial/licensing liability concerns. It is argued that "[h]ealth care providers 
also should not inflict unnecessary pain and suffering .... [A]llowing a 
patient to experience unnecessary pain and suffering of any form is sub­
standard and unethical medical practice regardless of the nature of the pa­
tient's condition or the goals of medical intervention.',s3 

In light of the fact that unrelieved pain is an undue burden on patients, 
controlled substances in the morphine class known as opioids can be used 
as safe and effective ways to treat patient pain, especially when the pain is 
severe. 54 Many physicians argue that there is no ceiling on how much one 

46. See OR. BD. OF MED. EXAM'RS. INTRACTABLE PAIN AND PAIN MANAGEMENT: BME 
STATEMENT OF PHILOSOPHY ON PAIN MANAGEMENT (2004), available at http://www.pain 
policy.wisc.eduldomesticlstates/OR/onnbgd2.htm. 

47. Renata Ferrari, Michela Capraro & Marco Visentin. Risk Factors in Opioid Treat­
ment of Chronic Non-Cancer Pain: A Multidisciplinary Assessment, in PAIN MANAGEMENT~·. 
Culuu!NrlssUESAND 0PJNIONS419, 450 (Gabor B. Racz and Carl E. Noe, eds., 2012), avail­
able at http://cdn.intechopen.com/pdfs/26149/lnTech-Risk_factors_Jn_opioid_treatment_of_ 
chronic _non_ cancer _pain_ a_ multidisciplinary _assessment.pdt: . 

48. Laxmaiah Manchikanti, Prescription Dnlg Abuse: What is Being Done to Address 
This New Dnlg Epidemic? Testimony Before the Subcommittee on. Criminal Justice, Dnlg 
Policy and Human Resources, 9 PAIN PHYsiCIAN 287, 288 (2006). 

49. Id. 
50. Id; see also S.H. Hernandez & L.S. Nelson, Prescription Drug Abuse: Insight Into 

the Epidemic, 88 CLINICAL PHARMACOLOGY & THERAPEUTICS 307, 310 (2010) (discussing 
the monetary costs of pain treatment). 

51. Manchikanti, supra note 47 at 288. 
52. See Kate Scott et al., Chronic Physical Conditions and Their Association With 

First Onset of Suicidal Behavior in the World Mental Health Surveys, 72 PSYCHOSOMATIC 
MED. 712 (2010). 

53. Rich, supra note 14, at 3. 
54. Amy J. Dilcher, Damned If They Do, Damned JfThey Don't: The Need for a Com­

prehensive Public Policy to Address the Inadequate Management of Pain, 13 ANN. HEALTH 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 703 

may ingest to treat pain asserting that "[a]s long as the dose is [started] low 
and increased gradually, large doses [may] be taken [and are] limited only 
by adverse [side] effects .... [O]pioids do not cause damage to major or­
gans. The correct amount, (physicians] argue, is what reduces or eliminates 
the patient's pain without unacceptable side effects.',s5 Therefore, aily re­
striction or regulation on pain patients' access to opioids impacts the pa­
tients' ability to receive powerful solutions to their chronic·and potentially 
debilitating pain. 

B. The Prescribing Physician 

The physicians implicated in this Note are those who prescribe con­
trolled substances to treat their patients' pain. These physicians have a two­
fold interest: their duty to their patients and their interest in perpetuating 
their practice in medicine. 

1. Duty to Treat Patient Pain 

The physician's first interest is in maintaining his duty to properly 
treat his patients and, in cases of pain management, adequately treating 
pain.s6 . . 

When conducting an inquiry into the duties of a phy­
sician, the first step (and sometimes last resort) is to 
consult the Hippocratic Oath. However, ... the fact 
that the Oath makes no specific reference to the relief 
of suffering should not be dispositive of the issue of 
the physician's duty in that regard. 57 

Philosopher Rem Edwards argues that ''there is a broadly based hu­
manistic ethics which applies to the domain of medical care which gives 
patients· a strong prinul facie right to freedom from unnecessary pain.',s8 

Further, the World Health Organization ("WHO") has recognized pain 
treatment as a basic human right and has determined that pain treatment is 
one of the most underestimated health care problems in the world. 59 It is 
argued that not relieving pain is almost akin to willfully inflicting it, and 
"[t]he willful infliction of pain is torture, which is foreclosed to the gov-

L. 81, 82 (2003). 
55. Diane E. Hoffinann, Treating Pain v. Reducing Drug Diversion and Abuse: Recal­

ibrating the Balance in Our Drug Control Laws and Policies; 1 ST. Loms U. J. HEALm L. & 
POL'Y 231, 270(2008). 

56. Rich, supra note 14, at 2. 
57. 1d. at 32-33. 
58. Jd. at 33. 
·59. World Health Organization supports global effort to relieve chronic pain, WoRLD 

HEA.tm ORo., Oct. 11, 2004, http://www. who.intlmediacentrelnews/releases/2004/pr70/enl. 



704 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

ernment by the Eighth Amendment to the U.S. Constitution, even in the 
punishment of convicted criminals as 'cruel and unusual. "'60 

While the issue of a patient's right to be free from pain is an ethical 
duty imposed on physicians in Indiana, the Oregon medical board has dis­
ciplined a physician for under-treated pain and a California jury awarded 
$1.5 million to the family of a man whose physician failed to provide prop­
er amounts of pain medication before he died of cancer.61 While there is 
concern that patients can become addicted to powerful opioids prescribed 
for pain relief,62 especially when a patient has a history of substance abuse, 
some states have decided that such concerns are no excuse to allow patients 
to suffer. Whether imposed ethically or as a standard of practice, physi­
cians have a duty to adequately address the pain of their patients or at least 
refer patients for such treatment. 63 

2. · Interest in Perpetuating Practice in Medicine 

The physician not only has an interest in relieving his patient's pain on 
legal and moral grounds, but also has a corresponding interest in maintain­
ing his livelihood. Discipline for inappropriate prescribing can lead to the 
revocation of the physician's license or criminal penalties, thus ending the 
physician's ability to practice medicine and potentially earn a living.64 The 
physician must preserve his ability to work. He has a duty to his patients, 
but maybe a greater one of self-preservation and the continued validity of 
his license. 

Because of the physician's interest to maintain an unrestricted license, 
restrictions or lack thereof on opioid prescribing is of major concern to pre­
scribing physicians who are attempting to treat patient pain. Considering 
the war on prescription drug abuse, physicians are often hesitant to aggres­
sively treat patient pain with opioid use out of anticipation that such prac­
tices will draw investigation by state and federal agencies. 65 

60. Rich, supra note 14, at 49. 
61. For the dying and others in pain, doctors rethinking relief, PROVIDENCE J. 

BULLETIN,Sep. 30,200l,availableat 2001 WLNR4498410. 
62. See MICH. DEP'T OF CMTY. HEALTH, SURVEY OF PHYsiCIANS 15-16 {2009), availa­

ble· at http:/ lwww.michigan.gov/documentslhealthcareworkforcecenter/2009Physicians Sur­
veyFINALREPORT_308082_7.pdf. 

63. Rich, supra note 14, at 34-35 (2000) ("American doctors regularly refuse to pre­
scribe effective doses of narcotic painkillers to dying patients on the grounds that the patients 
might become addicted. The treatment of cancer pain, clearly, is still not based solely on 
scientific fact but draws on ignorance, fear, prejudice, and on an invisible, unacknowledged 
moral code expressing half-baked notions about the evil of drugs and the duty to bear aftlic­
tion."). 

64. Edwards, Findings of Fact and Order, supra note 13; Beverly P. Edwards, 75 Fed. 
Reg. 157; 49991-92 (D.B.A. Jul. 30, 2010), available at http://www.gpo.gov/fdsyslpkg/FR-
2010-08-161pdf72010-20193.pdf. 

65. Rich, supra note 14, at 43 (stating that physicians often have .. opiophobia [which] 
denotes an unreasonable fear of and resultant reluctance to prescribe, administer, or receive 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR P A1N 

[F]ears over the prospect of legal entanglement and 
potential sanctions may influence doctors to alter their 
practices in undesirable ways . · ... Doctors also fear 
being subjected to government inquiry or investiga­
tion. The costs of the inquiry or investigation include 
financial costs, disruption of the practice, damage to 
reputation, resultant ostracism or termination of nec­
essary business relationships, stress, shame, and other 
losses that are quite significant. 66 

705 

In many cases, physicians claim that "bad laws" in the regulatory and 
legislative system force them to provide futile or poor care because they are 
more concerned with following the law than adequately treating their pa­
tients.67 

The concern here is that unclear or nonexistent law deters physicians 
from providing proper treatment for their patient's pain because physicians 
are either scared of government investigation or concerned about following 
the letter of the law, all to the detriment of the patient. Numerous studies 
have connected fear of regulatory scrutiny and ambiguous standards direct­
ly to incomplete pain treatment. 68 In a 1991 survey of physicians at the 
American Pain Society, forty percent of the physicians reported that fear of 
regulatory scrutiny, and not medical considerations, caused them to pre­
scribe fewer opioids for pain treatment. 69 In a more startling 1993 Califor­
nia survey, sixty-nine percent of physicians stated they felt pain treatment 
was more conservative because of fear of government investigation, and 
one-third actually believed their patients were suffering from untreated 
pain. 70 In Indiana, there are no statutes, regulations, or standards of prac­
tice specifically tailored to address the use of controlled substances for pain 
treatment. Indiana's "bad law" is the lack of standards by which physicians 
are evaluated, thus directly contributing to physician fear of regulatory scm­
tiny by promoting ambiguity about the practice of pain management and 
indirectly preventing Indiana citizens from receiving proper pain treat-

opioid analgesics, even for the relief of severe pain which is unresponsive to other available 
pain management strategies. While the phenomenon of opiophobia is not unique to Ameri­
can culture, the openly declared war on drugs by American politicians and bureaucrats has 
produced a particularly virulent form of it in this country''); see also Amy J. Dilcher, 
Damned ifThey Do, Damned if They Don't: The Need for a Comprehensive Public Policy to 
Address the Inadequate Management of Pain, 13 .ANN. HEALTH L. 81, 113-15 (2004). 

66. Sandra H. Johnson, Regulating Physician Behavior: Taking Doctors' "Bad Law" 
Claims Seriously, 53 ST. LoUis UNN. L.J. 973, 1024, 1029 (2009). 

67. ld. at 974. 
68. Diane E. Hoffmann & Anita J. Tarzian, Achieving the Right Balance in Oversight 

of Physician Opioid Prescribing/or Pain: The Role of State Medical Boards, 31 J.L. MED. & 
Ennes 21,23 (2003). 

69. ld. 
70. ld 



706 INDIANA HEALTH LAW REviEW [Vol. 9:2 

ment.71 "Until the boundaries between [law and pain treatment] are clari­
fied, physicians will remain reticent to aggressively treat severe intractable 
pain, and patients will continue to suffer as they struggle to find relief.''72 

C. The Office of the Indiana Attorney General 

As the AG investigates and prosecutes physicians who commit licens­
ing violations, any new or additional regulation will affect that responsibil­
ity, thus impacting its ability to protect Indiana citizens. In the context of 
pain management, there are currently no regulations or standards of practice 
promulgated by the Board, therefore requiring the AG to seek general evi­
dence that a physician's prescribing practice is harmful to the public.73 

When prosecuting physicians for prescribing practices under the 
charging statute, the AG can prosecute for "failure to keep abreast of cur­
rent professional theory or practice,"74 diverting a controlled substance,75 or 
"except as otherwise provided by law, has knowingly prescribed, sold, or 
administered any drug classified as a narcotic,. addicting, or dangerous drug 
to a habitue or addict.''76 IC 25-l-9-4(aX4)(B) ("Catch All statute"}, which 
requires physicians to adhere to current professional theory and practice, is 
essentially the "Catch All" provision used to show that physicians have 
used substandard care in their practice. However, because of the general 
language used, the Catch All statute must be supplemented by some other 
source defining the actual conduct that is not professional theory or prac­
tice. Generally, violations of the provisions in 844 lAC 5, which contains 
the Standards of Professional Conduct and Competent Practice of Medicine 
adopted by the Board, or other Indiana medical statutes are used to invoke a 
violation of the Catch All statute. However, neither 844 lAC 5 nor any oth­
er Indiana provision addresses prescribing practices for pain treatment, and 
the AO is left to resort to organizational standards, common knowledge, or 
expert testimony. 77 

In 2010, the AG successfully prosecuted several high profile cases in­
volving prescribing practices, including revocations and fines against the 

71. This Note recognizes that there are multiple factors contributing to physicians not 
adequately treating pain. but the burden is on the Board to take steps to get patients relief and 
fear of regulatory scrutiny is something they can directly address. See FED'N. OF STATE 
MED. BDS. OF THE U.S., INC., MODEL POUCY FOR THE USB OF CONTROLLED SUBSTANCES FOR 
THE TREATMENT OF PAIN (2004), available at http:/lwww.fsmb.org/pdf72004_grpol_Con 
trolled_Substances.pdf [hereinafter MODEL POUCY] (discussing multiple barriers in pain 
management including fear of regulatory scrutiny). 

72. Shannan W. Leelyn, Failures in Pain Management: The Collision of Law and 
Medicine, 27 T. JEFFERSON L. REv. 133, 156 (2004). 

73. See 8441ND. ADMIN. CoDE 5-2-5 (2010). 
74 •. IND. CODE§ 25-1-9-4(aX4)(B) (2010). 
75. IND. CODE§ 25-1-9-4(a)(9) (2010). 
76. Jd. 
77. See 8441ND. ADMIN. CoDE 5-2-5 {2010). 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 707 

licenses of Dr. Beverly Edwards, Dr. Kara Benson-Rink, and Dr. Philip Fo­
ley. 78 Dr. Edwards was disciplined under the Catch All statute because she 
prescribed controlled substances to thousands of patients across the country, 
in violation of 844 IAC 5-3, which prohibits internet prescriptions unless 
the physician physically saw the patient.79 Dr. Foley was charged under the 
same statute, but he had written over 96,000 prescriptions over a three-year 
period, averaging 1.4 prescriptions per minute, and 9 of his patients died 
from prescription drug overdose.8° Further, Dr. Kara Benson-Rink was 
successfully prosecuted under the Catch All statute for prescribing Vicodin 
to her husband and a friend without keeping any medical records in viola­
tion ofiC 16-39-7-1 and under an expired DEA registration.81 In each of 
these cases, it was clear the physician had prescribed for purposes other 
than those supported by legitimate medical reasons or in direct violation of 
a specific statute or regulation, thus invoking the Catch All statute and pos­
ing little difficulty for the AG to secure the discipline on their licenses. 

Under the current statutory format, the AG's interest in protecting In­
diana citizens is only served when physicians violate the law in obvious and 
flagrant ways. However, the interest is not met when physicians keep some 
form of medical chart, do not prescribe over the Internet, or do not prescribe 
tens of thousands of opioids every month. In more tempered cases where 
physicians are careless or purposely prescribe for non-medical reasons, the 
AG lacks adequate tools with which to prosecute. If a physician is purpose­
ly over-prescribing, but maintains semi-proper charts and uses medicine or 
pain management as a pretext for diversion, the AG can do little under the 
current statutory scheme. Further, where a physician is careless or too 
trusting of his patients, the AG has a tremendous burden to show the physi­
cian has failed to keep abreast of current theory or practice, especially in an 
area where addicted patients are unlikely to report such practices. That is 
because the AG has no standard of practice to support a charge where the 
physician has ad hoc charts. In such instances, the AG can file a complaint 
and hope the physician will settle, but, while that might succeed in the latter 
case, it is unlikely when the physician uses medicine as a pretext for diver­
sion. While the AG has statutory and regulatory backing to prosecute ob­
noxious cases and specific violations, those whose prescribing practices fall 

78. Findings of Fact, Conclusions of Law, and Order, In the Matter of the License of 
Philip D. Foley, 2009 MLB 0031 (Ind. Med. Licensing Bd., Apr. 30, 2010) [hereinafter Fo­
ley, Findings of Fact and Order]; Edwards, Findings of Fact and Order, supra note 13; Find­
ings of Fact, Ultimate Findings of Fact, and Order, In the Matter of the License of Kara 
Benson-Rink, 2009 MLB 0035 (Ind. Med. Licensing Bd., Apr. 30, 2010) [hereinafter Ben­
son-Rink, Findings of Fact and Order]. 

79. Edwards, Findings ofFact and Order, supra note 13. 
80. Foley, Findings of Fact and Order, supra note 77; Middletown doctor accused of 

killing patients with drugs, THE HERALD BULLETIN, Oct 19, 2009, http://heraldbulletin.com/ 
breakingnews/x546199485/Middletown-doctor-accused-of-killing-patients-with-drugs. 

81. Benson-Rink, Findings of Fact and Order, supra note 77. 



708 INDIANA HEALTH LAW REviEW [Vol. 9:2 

on the borderline pose a much more difficult, if not impossible, challenge. 

D. The Indiana Medica/Licensing Board 

When the AG prosecutes unlawful physician behavior, the Board is 
the judge, jury, and rule maker. It presides over cases filed by the AG 
against licensed physicians and d.etetmines discipline with an interest and 
duty to protect the health and welfare of Indiana citizens. 82 That interest is 
more pronounced considering the war on prescription drug abuse, and the 
fact that "[t]he largest group of prescription drug abusers is comprised of 
individuals who abuse opioids."8 Empowered by Indiana Code section 25-
22.5-2-7{a)(8), the Board shall "[a]dopt rules establishing standards for the 
competent practice ofmedicine, osteopathic medicine, or any other form of 
practice regulated by a limited license or permit issued under this article.',84 
Therefore, the Board is the gatekeeper as to what rules physicians will abide 
by in Indiana and has the most direct impact. on what rules physicians will 
follow in their prescribing practices. 

In its role as judge and jury, the Board hears the AG's complaints, 
evaluates physician conduct, and determines if a licensing violation has oc­
curred under the appropriate statutory and regulatory provisions.85 Because 
there are currently no regulatory policies creating standards for using con­
trolled substances for pain treatment, 86 the Board faces the same issues as 
the AG in determining whether physician conduct is appropriate. While 
some cases exhibit clear violations by their magnitude or specificity, activi­
ties that toe the line and in the gray areas are difficult to evaluate. Because 
the Board is primarily comprised of licensed physicians, they are the most 
ca~able of determining whether a physician's prescribing practice is prop­
er. 7 However; Board members are not necessarily pain management spe-

82. IND. CoDE § 25·22.5·2 (2010); see also Stark, supra note 14, at 607.08 (outlining 
Florida's similar method of regulating physician behavior). 

83. Manchikanti, supra note 47, at 290; see also Norman Miller et al., Controlled Sub­
stance Laws: Are They Meeting the Health Needs of the Public?, 7 MICH. ST. U. J. MED. & L. 
81, 94-98 (2003) (discussing high opioid abuse in the United States). 

84. IND. CODE§ 25-22.5-2-7(a)(8)(2010). . 
85. IND. CoDE§ 25-22.5; see also Rich. supra note 14, at 48 (discussing the customary 

procedures of state medical boards and its interactions with federal agencies). 
86. It is recognized that Indiana does have some narrowly tailored provisions such as 

the Indiana Uniform Controlled Substances Act of 1973, IND. CODE § 35-48 (2010), 8441ND. 
ADMIN. CoDE 5-2-20 (2010) (Schedule II controlled substances for weight reduction), and 
8441ND. ADMIN. CoDE 5-3-2 (2010) (Evaluation of the patient f~ internet purposes). How­
ever, the scope of this Note covers prescribing controlled substances for pain treatment and 
Indiana currently does not have any such statute or regulation. 

87. As of April2011, the current Board members are Stephen Huddleston, J.D. (con­
sumer member), Bharat H. Barai, M.D. (hematology and oncology), Donald Vennekotter, 
M.D. (pediatric and general surgery), Worthe Holt, Jr., M.D. (family practice), Robert Allen, 
M.D. (urology), Lynda Smirz, M.D. (obstetrics and gynecology), and Kirk Masten, D.O. 
(anesthesiology). List Of Medical Licensing Board Members As of Apri/1011, IND. PROF'L 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR P A1N 709 

cialists, and because they are the governor's appointees for finite terms sub­
ject to reappointment, they are subject to pressure from the legislature and 
the public to protect Indiana froiD. unlawful physician practices. 88 This 
pressure is heightened by the fact that Indiana is experiencing a crisis in 
prescription drug abuse and the Board, unlike the AG, has the authority and 
arguably the duty to have appropriate standards by which physicians pre­
scribe opioids. Because there are no officially adopted standards of practice 
when prescribing controlled substances for pain, the Board is left to look to 
other sources to determine whether the physician practice is proper. 

IV. THE GUIDELINE SoLu;riON 

After review of the interests implicated, it is evident that steps need to 
be taken to address patient pain treatment, physician prescribing practices, 
and concern about regulatory scrutiny. In addition, the AG's ability to 
prosecute and the Board's ability to evaluate physicians' prescribing prac­
tices should be examined. The solution is· to implement guidelines that 
clearly establish a standard of practice for physicians who are prescribing 
medication to treat pain, but in doing so, retain the flexibility to adjust with 
changes in acceptable medical practices. while providing an enforcement 
mechanism to hold physicians accountable. 

A. The Model Policy 

In 1997, the Federation ofState Medical Boards ("FSMB .. ) develo~d 
guidelines for the use of controlled substances for the treatment of pain. 89 

The guidelines were established in an effort to encourage state medical 
boards to have a consistent approach to pain treatment when dealing with 
controlled substances and to provide a standard that would help ensure 
proper pain treatment. 90 Since its initial creation, the guidelines were re­
vised in 2004 and have been titled "Model Policy for the Use of Controlled 
Substances for the Treatment of Pain., ("Model Policy'').91 This document 
has been widely distributed and has been· endorsed by the American Acad­
emy of Pain Medicine, the DEA, the American Pain Society, the National 
Association of State Controlled Substances Authorities, and the National 
Association of Attorneys General. 92 The Model Policy is comprised of 

LICENSING AGENCY, http://www.in.gov/plal2485.htm. 
88. See Discipline by state medical boards creates 'domino effect, ' ACOG TODAY 

(Am. Cong. of Obstetricians and Gynecologists, D.C.), May/June 2005, at 14, available at 
http://www.acog.org/-/media/ACOG%20Today/acogToday0505.pdf?dmc=l&ts=20120411 
Tl551018826. 

89. MODEL PoLICY, supra note 71. 
90. !d. at2. 
91. ld 
92. !d. at 1 



710 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

three sections, including the Preamble, Guidelines, and Definitions.93 The 
Preamble states the policy considerations· for the Model Policy; the Guide­
lines reflect the actual actions physicians ·should take in treating patients 
with opioids; and, definitions simply define· the medical terms used in the 
document.94 In addition, pain medicine specialist Dr. Scott Fishman has 
written a guide that fleshe8 out the Model Policy and explains how to im­
plement it in daily medical practice.95 The purpose of the policy is to en­
courage proper pain treatment in· a time when undertreated pain is becoming 
a serious problem by outlining practices that are in compliance with federal 
and state law.96 . 

The Model Policy is designed to communicate certain 
messages to licensees: that the state medical board 
views pain management to be important and integral 
to the practice of medicine; that opioid analgesics· 
may be necessary for the relief of pain; that the use of 
opioids for other than legitimate medical purposes 
poses. a .threat to the individual and society; that phy­
sicians have a responsibility to minimize the potential 
for the abuse and diversiOn. of controlled. substances; 
and that physicians will not be sanctioned solely for 
prescribing opioid . analgesics for .legitimate medical 
purposes. This. policy is not meant to constrain or 
dictate medical decision-making. 97 . 

Those messages are shared by each state medical boards that have 
adopted the Model Policy or some variation. Arguably, the Board has a 
similar attitude. However, without something published or recorded, such 
sentiment likely has little meaning 01' force with the physician-community. 
Throughout the United States, forty-nine of fifty-one jurisdictions, includ­
ing Washington D.C., have adopted some standard for the use of controlled 
substances for the treatment of pain through legislation, regulations, or reg­
ulatory policy statements.98 Many ofthe states with some type of regulato­
ry policy have utilized either the FSMB's Model Guideline or Policy in 
whole or in part. 99 The only two states that have yet to adopt any pain re-

93. Id 
94. Id 
95. Scorr M. FisHMAN, REsPONSmLE OPIOID PREscluBJNG: A PHYsiCIANS GuiDE 

(2007). 
96. MODEL POUCY, supra note 71, at 2. 
97. /d. 
98. See Database of State Statutes, Regulations, and Other O.fficial Governmental 

Policies, PAIN & POUCY S1UDIES GROUP, http://www.painpolicy.wisc.edu/matrix.htm (last 
visited Jan. 17, 2011 ). 

99. Id. 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 711 

lated policy are Illinois and lndiana.100 While this Note does not formally 
endorse any specific guidelines or policy currently in existence, the Model 
Policy would be an excellent choice considering its wide range of endorse­
ments and the ease at which the Board could adopt it. 

B. The Michigan Guideline 

The State of Michigan has taken an extensive approach to dealing with 
pain management and adopted Guidelines for the Use of Controlled Sub­
stances for the Treatment of Pain ("Guidelines") in late 2003.101 In addi­
tion to the Guidelines, Michigan has adopted similar guidelines for nurses 
and pharmacists, maintains a website dedicated to pain management, sends 
a quarterly pain management newsletter to all licensed physicians, has dis­
tributed 70,000 copies of Dr. Scott Fishman's prescribing guide, and sur­
veys licensed physicians on multiple areas including pain management 
practices.102 Suffice it to say, pain management is a priority in Michigan. 

While Michigan is achieving many positive results in the area of pain 
management, its clear and unambiguous law is arguably the most important 
aspect of its pain management policies. Michigan's Guidelines are virtual~ 
identical to the Model Policy, including .the Preamble and Defmitions.1 

Further, Michigan's pain management policies and law received an A grade 
from the Wisconsin Pain and Policy Studies Group ("PPSG")}04 The 
PPSG grades every state on the balance and clearness .of its pain manage­
ment laws, regulations, and other regulatory policies.105 The grade is based 
on provisions that enhance pain management versus the provisions that hin­
der pain management, and a grade of A is only possible when a state's rele­
vant policies completely eschew restrictive or ambiguous language.106 For 
example, the Michigan Guidelines state, '"[p ]hysicians should not fear dis­
ciplinary action from the Board or other state regulatory or enforcement 
agency for prescribing, dispensing or administering controlled substances, 
including opioid analgesics,. for a legitimate medical purpose and in the 

100. Id 
101. Id 
102. Bureau of Health Professions Launches Pain Management Newsletter, 

MIPAINMGMT. (Mich. Dept. of Community Health. Lansing. Mich.), Fall 2010, at 1-2, 
available at http://www.michigan.gov/documents/mdch/Mipain _Management_ 330 
510_7.pdf. 

103. Michigan Guidelines for the Use of Controlled Substances for the Treatment of 
Pain, MICH. BD. OF MED. (2003), available at http://www.michigan.gov/documents/ 
mdch_MI_guidelines_91795_7.pdt: 

104. PAIN & POUCY STUDIES GROUP, ACHIEVING BALANCE IN FEDERAL AND STATE 
POLICY: A PROGRESS REPoRT CARD 11 (4th ed. 2008) [hereinafter A PROGRESS REPoRT 
CARD]. 

105. See PAIN & POUCY STUDIES GROUP, ACHIEVING BALANCE IN FEDERAL AND STATE 
POLICY: A GUIDE TO EVALUATION (5th ed. 2008) (hereinafter A GUIDE TO EVALUATION]. 

106. APROGRESSREPoRTCARD,supranote 104, at25. 



712 INDIANA HEALTH LAW REviEW · [Vol. 9:2 

usual course of professional practice."107 Under the PPSG evaluation, this 
provision enhances pain management because it directly addresses physi­
cians' fear of regulatory scrutiny.108 In contrast, an Indiana Pharmacy regu­
lation states, "[a] prescription for a controlled substance to be effective must 
be issued for a legitimate medical purpose in a reasonable quantity by an 
individual practitioner acting in the usual course of his professional prac­
tice."109 The PPSG deemed this provision as potentially impeding pain 
management because it is ambiguous and sets an arbitrary standard for le­
gitimate prescribing. 110 

Because Michigan received thirty-seven positive provisions and zero 
negative provisions, the PPSG graded Michigan with an A, one of only five 
states to receive the grade.111 Indiana received a C-plus grade because its 
policies and law contain only six positive and two restrictive or ambiguous 
provisions, including the one noted previously.112 Michigan has abundant 
positive provisions and clearly prom9tes the safe and effective use of con­
trolled substances for pain management; while Indiana has very few provi­
sions, positive or negative, that relate to pain management and controlled 
substances.113 · . 

In addition to Michigan's positive report with the PPSG, they con­
ducted a survey in 2009 for the first time on pain management practices in 
Michigan.114 The survey included information on physician attitudes to­
wards chronic pain treatment, physician pain management education, and 
reasons why physicians are reluctant to prescribe opioids.115 The most in­
teresting discovery was that when asked to define the greatest barrier to ad­
dressing pain, thirty-two percent of respondents answered that they were 
afraid their patients would become addicted to opioids, and only five per­
cent stated it was fear of regulatory scrutiny.116 Considering all of the liter­
ature and reports that cite fear of regulatory scrutiny as a primary barrier to 
proper pain treatment, it was the sixth of seven reasons stated as the cause 
of inadequate pain treatment in Michigan.117 While Michigan respondents 
were not asked why they felt this way, one can reasonably conclude that the 
clarity of the law in Michigan has significantly lowered its physicians' con-

107. MICH.BD.OFMED.,supranote 102. 
108. AOUmETOEvALUATION,supranote 105, at314. 
109. 856 IND. ADMIN. CoDE 2-6-J(a) (2010) (emphasis added). 
110. A GUIDE TO EVALUATION, supra note 105, at224. 
111. ld. at 314. 
112. APROORESSREPoRTCARD,supranote 104, at 11. 
113. As noted previously, Indiana bas several provisions relating to controlled sub­

stances, however, those provisions do not involve prescribing practices. 
114. MICH. DEP'T OF CMTY. HEALTH, SURVEY OF PHYsiCIANS (2009), available at 

http:/lwww.michigan.gov/documentslhealtbcareworkforcecenter/2009PhysiciansSurveyFIN 
ALREPORT _308082_7.pdf. 

115. ld at 12-16. 
116. Id at 16. 
117. Id 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 713 

cern over regulatory scrutiny. This seems.particularly sensible because the 
current theory is that clear and unambiguous pain treatment regulations will 
reduce physician concern. us Thus, Michigan physicians feel (1) their pa­
tients will become addicted, (2) their patients fail to properly report pain, 
(3) lack of physician training and knowledge in pain management, ( 4) in­
sufficient time to asses patient pain, and ( 5) lack of effective medicine are 
all greater barriers to adequate pain treatment than fear of investigation by 
authorities.119 As such, where fear of regulatory scrutiny is a minor barrier 
in Michigan, the Michigan Board of Medicine ("Michigan Board") has tak­
en steps to better educate its physicians by maintaining a website dedicated 
to pain management and sending a quarterly pain management newsletter to 
all licensed physicians. It has also distributed 70,000 copies of Dr. Scott 
Fishman's prescribing guide. 

Even though the Michigan Board has taken numerous steps to ensure 
that physicians have the tools to properly treat fcain, its initial goal was to 
clarify the law on acceptable pain treatment.1 0 That was done largely 
through Michigan's adoption of the Guidelines for the use of controlled 
substances for pain treatment in guideline form, thus reducing physician 
fear of regulatory scrutiny. 

C. Indiana's Attempt to Promulgate a Rule for Using Controlled Substanc­
es in a Pain Treatment Setting 

In 2006, the Board considered and· came very close to adopting the 
Model Policy in almost its entirety.121 On June 1, 2005, the Board filed a 
Notice of Intent to begin the promulgation process on rules concerning pain 
management and controlled substances.122 In a letter to the Board, multiple 
Indiana physician organizations indicated that the reason for promulgation 
''was a reaction to requests made by·physicians for clarification on the use 

. 123 124 of controlled substances for pam management." The Board drafted a 

118. See Leelyn, supra note 71, at 156. 
119. MicH. DEP'T OF CMTY. HEALTH, supra note 113, at 16. 
120. The Michigan Board passed its Guidelines for the Use of Controlled Substances 

for the Treatment of Pain in 2003; this was before it began its other pain management initia­
tives. FED'N STATE MED. BDS., PAIN TREATMENT POUCIES, LEGISLATION AND REGuLATIONS: 
BoARD-BY-BoARD OVERVIEW 6 (2012), available at http://www.fsmb.org/pdf/GRPOL_ 
Pain_Management.pdf. See also Pain and Symptom Management, MICH. DEP'T. OF 
LICENSING AND REGULATORY AFFAIRS, http://www.michigan.gov/mdch/0,1607,7-132-
27417 _ 45947--,00.html (last visited Mar. 7, 2012). 

121. IND. PROF'L LICENSING AGENCY, MLB TIMBLINE FOR PAIN MANAGEMENT RULE, 
Feb. 6, 2006 (on file with the Dir. of the Ind. Med. Licensing Bd.); see also 28 Ind. Reg. 
3344 (Aug. 1, 2005). 

122. ld. 
123. Memorandum from Am. Coli. of Emergency Physicians, Ind. Chapter et al., to the 

Ind. Med. Licensing Bd., (Nov. 29, 2005) (on file with the Director of the Indiana Medical 
Licensing Board). 

124. The proposed rule was drafted by the Board in conjunction wi.th an AG advisory 



714 INDIANA HEALTH LAW REviEW [Vol. 9:2 

proposed rule that looked nearly identical to the Model Policy except it ex­
cluded the Preamble section, replacing every "should" with "shall" and 
essentially codifying in 844 lAC 5 a mandatory version of the Model Policy 
without the Preamble section.125 The reason for the mandatory standard 
was the Advisory Division of the AG, which counsels the Board on legal 
matters.126 The Advisory Division advised the Board that only a regulation 
should be promulgated to ensure enforceability.127 For example, the Model 
Policy states, "The medical record should document the nature and intensity 
of the pain, current and past treatments for pain, underlying or coexisting 
diseases or conditions, the effect of the pain on physical and psychological 
function, and history of substance abuse."128 The Indiana corollary stated, 

The medical record shall document the following: 
(A) The nature and intensity of the pain. (B) Current 
and past treatments for pain. (C) Underlying or coex­
isting diseases or conditions. (D) The effect of the 
pain on physical and psychological function. (E) His­
tory of substance abuse. (F) The presence of one (1) 
or more recognized medical indications for the use of 
a controlled substance.129 

The proposed rule was published in the Indiana Register on August 1, 
2005.130 At the Board meeting on August 26, 2005, a representative from 
the Indiana State Medical Association ("ISMA") submitted a letter detailing 
suggested changes, 131 including changing "shall" back to "should.~'132 The 
reasoning underlying this suggested change was that "[t]he state purpose of 
the proposed rule is to establish guidelines. The use of 'shall' indicates a 
mandate or a limit and could potentially hinder a physician from tailoring 
treatment to the specific, varying needs of his/her patients."133 

At the hearing, the Board discussed the concerns submitted by the 
ISMA and voted to adopt the proposed rule in its "shall" form by a unani-

attorney. IND. MED. LICENSING BD., MINuTEs, Oct. 27,2005 (on file with the Director of the 
Indiana Medical Licensing Board). 

125. 28 Ind. Reg. 3344 (Aug. I, 2005). 
126. See IND. CODE§ 4-22-2-22 (2010). 
127. Interview with Mike Rinebold, Dir. of Gov't Relations, Ind. State Med. Ass'n 

(Mar. 7, 2011) (on file with author); Mr. Rinebold was the director of the Board during the 
2005-06 rule promulgation process. IND. MED. LICENSING BD., MINUTES, Apr. 28, 2005 (on 
file with the Director of the Indiana Medical Licensing Board). 

128. 28 Ind. Reg. 3344 (Aug. I, 2005) (emphasis added). 
129. Id. (emphasis added). 
130. 28 Ind. Reg. 3344 (Aug. 1, 2005). 
131. There were several suggested changes: modify the definition of addiction, modify 

the definition of chronic pain, and change all instances of "Shall" to Should." Letter from 
Elizabeth Eichhorn to the Ind. Med. Licensing Bd. (Aug. 26, 2005) (on file with the Director 
of the Indiana Medical Licensing Board). 

132. /d. 
133. /d. 



2012] GUIDELINES FOR USING CoNTROLLED SUBSTANCES FOR PAIN 715 

mous vote.134 However, after the Board sent the proposed rule to the AG 
for. approval on September 8, 2005, the Board received multiple letters of 
concern from physician organizations, including the Indiana Chapter of the 
American College of Emergency Physicians, Indiana Academy of Family 
Physicians, Indiana Academy of Ophthalmology, Indiana Osteopathic Soci­
ety, Indiana Psychiatric Society, Indiana Society of Anesthesiologists, and 
the ISMA. In each of the letters, the primary concern was the mandato~ 
nature of the proposed rule established by the use of "shall" throughout.1 5· 

As a result of the l~e medical outcry, the Board voted to recall the rule on 
September 23, 2005, 36 and it held an additional meeting on November 30, 
2005 to discuss these concerns.137 Although the meeting resulted in some 
consensus between Indiana medical organizations, the ISMA continued to. 
oppose any standard in rule form and would only support a guideline form, 
arguing that a mandatory rule in this area would discourage and burden pain 
management rather than facilitate it.138 Without the support of the ISMA 
and others, the Board decided to abandon the rule promulgation on Febru-
ary 23, 2006.139 . 

D. How a Guideline Would Operate Under Indiana's Statutory Scheme 

Considering the diversity of the fifty states in the United States, and 
the fact that policies and legislation regulating physician practice is primari­
ly a state level function, every state is different in the way it investigates, 
prosecutes, and disciplines physician behavior. In Indiana, the Board may 
only discipline physicians who violate the Charging Statute.140 Specifically 
concerning physician prescribing, the Catch All statute, requires some other 
basis to show the physician failed to keep abreast of current professional 

134. IND. MED. LICENSING BD., MINuTES, Aug. 26, 2005 (on file with the Director of 
the Indiana Medical Ucensing Board). 

135. See Letter from Elizabeth K. Cierziniak on behalfofthe Ind. Soc'y of Anesthesi­
ologists to the Ind. Med. Licensing Bd. (Sep. 22, 2005) (on file with the Director of the Indi­
ana Medical Licensing Board); Memorandum from Am. eon. of Emergency Physicians, 
supra note 122; Letter from Am. eon. of Emergency Physicians, Ind. Chapter, et al, to the 
Ind. Med. Licensing Bd. (Oct. 25, 2005) (on file with the Director of the Indiana Medical 
Licensing Board); IND. PROF'L LICENSING AGENCY, MLB TIMEUNE FoR PAIN MANAGEMENT 
RuLE, Feb. 6, 2006 (on file with the Director of the Indiana Medical Licensing Board). 

136. 29 Ind. Reg. 549 (Nov. 1, 2005). 
137. IND. PROF'L LICENSING AGENCY, MLB TIMELINE FOR PAIN MANAGEMENT RULE, 

Feb. 6, 2006 (on file with the Director of the Indiana Medical Licensing Board). 
138. Letter from Kevin R. Burke, M.D., on behalf of the Ind. State Med. Ass'n to the 

Ind. Med. Licensing Bd. (Jan. 16, 2006) (on file with the Director oftbe Indiana Medical 
Licensing Board); IND. PROF'L LICENSING AGENCY, MLB TIMELINE FOR PAIN MANAGEMENT 
RuLE, Feb. 6, 2006 (on file with the Director of the Indiana Medical Licensing Board). 

139. IND. MED. LICENSING BD., MINUTES, Feb. 23, 2006 (on file with the Director of the 
Indiana Medical Licensing Board). 

140. IND. CODE§ 25-1-9-9 (2010). 



716 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

theory and practice.141 A formally adopted guideline in this area would 
simply provide the basis for invoking the Catch All statute. For instance, 
the AG would charge the physician under the Catch All statute, citing the 
guideline and pointing to the specific deviation. 

The most effective way for the Board to enforce and ensure affected 
physicians follow the guideline would be for the Board to codify a closely 
worded version of the Model Policy in 844 1.(\C 5, essentially completing 
the Board's attempt in 2006 with a few changes. Specifically, the Board 
should write the Model Policy into a rule under 844 lAC 5, leaving all the 
permissive characteristics, but where the Model Policy has a list of actions 
that physicians should adhere to, the Board should require that any devia­
tion be documented in the record with a medical justification for the devia­
tion.142 The Board's rule under 8441AC 5 would be identical to the Model 
Policy but would read, "any deviation ftom this section shall be document­
ed in the medical record with medical justification for the deviation." This 
addition to the Model Policy would add enough teeth to properly enforce 
the guideline, while also giving physicians enough flexibility to meet each 
patient's need. Such a guideline promulgated in rule form would directly 
address the concern by the Advisory division and the medical community 
because although physicians would be required to document any deviation, 
the deviation would not automatically require discipline but allow for flexi­
bility and consideration by the Board. 

Under a rule promulgated in this fashion, the Board would be forced 
to consider the guideline under 844 lAC 5 because physicians would be 
required to document and thus highlight any deviation. The Board could 
then properly evaluate physician conduct, and in the event of a deviation 
ftom the ,policy, the Board would retain discretion to discipline or accept 
the deviation as appropriate where the circumstances warrant.143 This 
would create a clear and unambiguous law concerning prescribing con­
trolled substances for pain treatment, allow the AG to use an enforceable 
tool to prosecute inappropriate practices, and grant physicians a flexible 
standard to meet the varying needs of chronic pain patients. 

V. THE ROLE OF A GUIDELINE TO ACHIEVE AND BALANCE ALL INTEREST 

Considering the interests stated previously and the positive impact 

141. IND. CODE§ 2S-l-9-4(a)(4)(B) (2010). 
142. See IND. CODE§ 2S-l-9-4(a)(4)(B) (2010). 
143. For example, the Model Policy states that physicians should adhere to certain ac­

tions in their prescribing behavior and the Board will not discipline for deviation when rea­
sonable medical justification is documented. Therefore, the Model Policy is a guide to 
prescribing rather than a rule and its codification in 844 IND. ADMIN. CoDE S would not alter 
the guide-like nature of the Model Policy. Rather, adoption would simply require the Board 
to consider it and only impose one rule-like provision: documentation in instances of devia­
tion. See MODEL POUCY, supra note 71. 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 717 

Michigan's Guideline is having in reducing fear of regulatory scrutiny,. the 
Board should adopt a guideline for the use of controlled substances for the 
treatment of pain. Such a guideline will serve two direct and beneficial 
purposes by (1) providing the AG and the Board with a standard under 
which to evaluate physician prescribing practices, thus facilitating prosecu­
tion and discipline for those who use medicine as a pretext for diversion, 
and (2) clarifying the law and the Board's position in using controlled sub­
stances for pain treatment, which will help reduce physician fear of regula­
tory scrutiny and will facilitate the provision for proper treatment of 
patients with unremitting pain. 

A. A Guideline Will Clarify the LaW and Create Case Evaluation Criteria 

The Board should adopt a guideline based on a widely accepted stand­
ard of practice for physicians who prescribe controlled substances for pain 
treatment, such as the FSMB's Model Policy of 2004. Such a formally 
adopted or codified guideline will provide the Board with a foundational 
source for what has been determined to be proper standards of conduct. 
Rather than hearing arguments and relying on standards from other states, 
federal agencies, or private organizations, the Board would have its own 
resource to make such hearings more efficient and conSistent. The current 
state of unclear and nonexistent laws or guidelines is unacceptable·and det­
rimental to medical care. A guideline that represents the Board's expecta­
tions and establishes case evaluation criteria would define what 
unprofessional conduct looks like in a pain management setting.144 This 
need is heightened by the fact that some standard of care concerning using 
controlled substances for pain treatment has been adopted in every state 
save for Indiana and Illinois. 

I. The Indiana Medical Licensing Board Members Are Not Pain Manage­
ment Specialists 

One of the major reasons for formally adopting standards of practice 
for pain treatment or any specialized area of medicine is that Board mem­
bers are not experts in every area of medicine. Moreover, currently no pain 
management specialists serve on the Board.145 A study completed by Diane 
E. Hoffinann and Anita J. Tarzian revealed that numerous state medical 
board members believed their adoption of a guideline or policy was "a sig-

144. See Stark, supra note 14, at 612-13; see also Leelyn, supra note 71, at 153 ("All 
states must adopt model guidelines, and medical board members, because of their vast power 
over health care practitioners, must internalize the model provisions and policies, and scru­
pulously apply them in evaluating physicians' prescription practices."). 

145. List Of Medical Licensing Board Members, IND. PRoF'L LICENSING AGENCY, 
available at http://www.in.gov/pla/2485.htm (last updated Apr. 2011 ). 



718 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

nificant aid to them in deciding whether to investigate or discipline·a physi­
cian."146 Further, when asked what factors their board would use to evalu­
ate prescribing practices, ''most respondents stated that it· was· a matter of 
judgment, that it was very fact specific, and often subjective."147 "Howev­
er, for those that had established pain management policies or guidelines, 
these appeared key in determining whether to discipline. Significant depar­
tures from the policies, in some cases, could be a basis for discipline.''148 

Moreover, a survey conducted by Dr. Aaron Gilson, Senior Researcher for 
the PPSG, discovered that seventy-five percent of state medical board 
members felt it was very important for. their state ''to have a policy (i.e., 
regulation, guideline, or policy statement) for licensees regarding pain man­
agement and controlled substances."149 This statement is·further evidenced 
by the fact that forty-nine of fifty-one U.S. jurisdictions have adopted some 
form of statement in either their law or adopted policy.150 Even more con­
cerning was the revelation of Dr. Gilson's survey that many board members 
held misconceptions about clinical issues. For example, only forty-three 
percent of board members surveyed were aware that federal law had no Jim.; 
its on the amount a physician can prescribe at one time, and twenty-seven 
percent "either did not know or incorrectly thoumt that physicians could 
not legally prescribe methadone for chronic p~in. •• 1 

Medicine is a wide and diverse discipline, much like the practice of 
law. Simply because someone is an attorney does not mean he is an expert 
or is even knowledgeable about every area of the law. A wills and trusts 
attorney would likely be lost in a criminal proceeding involving a homicide. 
Similarly, Board members who are physicians may not know the proper 
methods of pain management, and even if there is one, Board membership 
changes with every new appointee. Such is the critical need for some 
guideline to assist the Board in evaluating physician prescribing practices. 

2. The Case of David and Charles Chube 

Where prescribing controlled substances for pain is a legally complex 

146. Hoffinann & Tarzian, supra note 67, at 36. 
147. Id. at37. 
148. Id. 
149. Aaron Gilson, State Medical Board Members' Attitudes About the Legality of 

Chronic Prescribing to Patients with Noncancer Pain: The Influence of Knowledge and 
Beliefs About Pain Management, Addiction, and Opioid Prescribing, 40 J. P AJN & SYMPTOM 
MGMT. 599, 603-04 (2010). 

150. Database of State Statutes, Regulations, and Other Official Governmental Poli­
cies, PAIN & PoL'Y STUDIES GRP. (Dec. 7, 2011), http://www.painpolicy.wisc.edu/matrix.htm 
(last visited Jan. 17, 2011 ). 

151. Gilson, supra note 148, at 604; see also Leelyn. supra note 71, at 142 ("Fifty per­
cent of medical board members surveyed erroneously believed prescribing schedule II drugs 
violates the law, contrasted with only twelve percent who correctly understood that physi­
cians may lawfully prescribe opioids to patients with chronic, non-malignant pain."). 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 719 

and medically subjective area,· it is evident that the Board is in need of some 
guideline to follow in making decisions on discipline and on general eval­
uation of physician prescribing practices. To· illustrate this point, consider 
the case of Drs. David and Charles Chube, who are currently serving federal 
prison sentences for their inappropriate prescribing practices.152 Doctors 
David and Charles Chube are brothers who· operated multiple family clinics 
in Munster and Gary, Indiana, where they frequently treated chronic pain 
patients using controlled -substances.153 In 2001, a patient of the Chubes 
who had been treated with Oxycontin was arrested and charged with know­
ingly and intentionally distributing Oxycontin pills.154 In return for a re­
duced sentence, the patient agreed to identifY his "suppliers" and testifY 
against them, leading DEA officials to the Chubes.155 The Chubes denied 
all wrongdoing and argued that they had in ~ood faith prescribed controlled 
substances for legitimate medical reasons.1 At trial, the government pre­
sented ninety-eight patient files, all of which were examined by two expert 
witnesses who both testified that the doctors' prescribing practices were not 
for legitimate medical pwposes.157 Further, four of the Chubes' patients 
testified that they lied about their pain solely to obtain the drugs.158 

Although the Chubes and the government presented radically different 
accounts of the prescribing practices, from trying to serve the public and 
reduce pain to "pill pushers," the jury found David Chube guilty of four 
counts of unlawful distribution and two counts of health care fraud and 
Ch8rles Chube guilty of one count of unlawful distribution.1 59 The most 
relevant part of this case for the pwposes of this Note is not what transpired 
in federal court but rather t)le actions of the Board that occurred under the 
same set of facts. On April 25, 2005, the AG filed a Petition for Summary 
Suspension, which would have placed the Chubes' Indiana medical licenses 
on.emergency suspension for ninety days, arguing that the Chubes posed an 
immediate threat to the public safety and welfare.160 As evidence for the 
petition, 161 the AG not only looked to the DEA reports but also inde-

152. See Don Terey, How Two Respected Gary Physicians Wound Up Doing a Com­
bined 20 Years in Federal Prison, CHI. TRm., Aug. 31, 2008, Magazine, at 8, available at 
2008 WLNR 16463427; United States v. Chube, 538 F.3d 693 (7th Cir. 2008). 

153. United States v. Cbube, 538 F.3d 693,695 (7th Cir. 2008). 
154. Id. 
155. Id 
156. Id 
157. Id at 697. 
158. Id at696. 
159. Id. 
160. Petition for Summary Suspension, Indiana v. Charles R. Cbube, 2005 MLB 0023 

(Ind. Med. Licensing Bd., Apr. 25, 2005) [hereinafter Charles Chube, Petition for Summary 
Suspension]; Petition for Summary Suspension, Indiana v. David D. Cbube II, 2005 MLB 
0024 (Ind. Med. Licensing Bd., Apr. 25, 2005). · 

161. The petitions for both Cbubes filed by the AG are identical; therefore, all material 
referencing both petitions will be cited to Charles Cbube's petition. 



720 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

pendently reviewed the patient medical records and concluded that the 
Chubes ·had prescribed multiple patients "[s]chedule II and [s]chedule III 
drugs with no documentation of medical history, physical examination, di­
agnosis or treatment plans."162 Essentially, the AG argued that the Chube 
brothers violated the Catch All statute because they failed to adhere to gen­
erally accepted standards of medical record keeping when prescribing con­
trolled substances.163 

What may have appeared to be a clear case for s~ suspension 
actually resulted in the Board denying the AG's petition.164 Then Board 
President Dr. Bharat Barai stated in a subsequent interview that "[t]he 
charts that were reviewed at random did not find anythin! wrong .... Pa­
tients were referred to pain centers when appropriate."1 When the AG 
filed the formal complaint, the brothers were charged with violations of, 
among other things, the Catch All statute, to wit 844 lAC 5-2-5, which re­
quires practitioners to follow "generally accepted scientific principles, 
methods, [and] treatments."166 The brothers later agreed to indefinite sus­
pension.pending their federal appeal.167 While the AG found evidence that 
the brothers had no documentation of medical history, physical examina­
tion, diagnosis, or treatment plans, the Board did not find them to be an 
immediate danger to the public. Even though the standard for a summary 
suspension is higher than in a regular hearing on the merits, 168 the AG 
pointed to specific instances of failure to prescribe in a certain way, which 
were clear deviations from the Model Policy.169 Without any reference to 
how physicians should prescribe controlled substances, the Board President 
simply concluded that the randomly reviewed charts revealed nothing 
wrong. 170 Yet, the Chubes' conduct was measured simply against the im­
pressions of the Board members, who were not pain management special-

162. Charles Cbube, Petition for Summary Suspension, supra note 160, at 2. 
163. There is no indication of what specific standard the AG referred to in support if its 

petition, but it can be assumed that be was relying on 844 lAC 5-2-5, which requires practi­
tioners to follow "generally accepted scientific principles, methods, [and] treatments," based 
on the charges in the subsequently filed compliant. See Complaint at 3, Indiana v. Charles 
R. Chube, 2005 MLB 0023 (Ind. Med. Licensing Bd., Jun. 28, 2006); Complaint at 4, Indi­
ana v. David D. Chube ll, 2005 MLB 0024 (Ind. Med. Licensing Bd., Jun. 28, 2006). 

164. Order Denying Petition for Summary Suspension, Indiana v. Charles R. Chube, 
2005 MLB 0023 (Ind. Med. Licensing Bd., Jun. 2, 2005); Correction of Order Denying Peti­
tion for Summary Suspension, Indiana v. David D. Chube II, 2005 MLB 0024 (Ind. Med. 
Licensing Bd., Oct. 6, 2005). 

165. SeeTerry,supranote l51,at8. 
166. 8441ND. ADMIN. CODE 5-2-5 (2010). 
167. See Indefinite Summary Suspension Order, Indiana v. Charles R. Chube, 2005 

MLB 0023 (Ind. Med. Licensing Bd., Jan. 31, 2007); Indefinite Summary Suspension Order, 
Indiana v. David D. Chube II, 2005 MLB 0024 (Ind.Med. Licensing Bd., Jan. 31, 2007). 

168. See IND. CODE§ 25-1-9-10 (2010). 
169. Charles Chube, Petition for Summary Suspension, supra note 160, at 1-2. 
170. Id 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR P AlN 721 

ists.171 

This Note does not suggest that the Chubes were "common drug deal­
ers" as alleged by the federal government, 172 but it is clear they were not 
taking appropriate precautions in prescribing Oxycontin. Physicians cannot 
prevent patients from lying to them; however, they also cannot prescribe 
every new patient Oxycontin when the patient claims he is in extreme pain, 
especially when Indiana and the United States are experiencing an epidemic 
in prescription drug abuse. The AG specifically pointed to the flaws in the 
brothers' practice, all of which are covered by the Model Policy, and the 
Board unanimously rejected them because they did not "feel comfortable 
suspending [the Chubes'] licenses."173 Because the Board did not have any 
reference or framework as to what were appropriate prescribing practices, it 
allowed two potentially honest, but careless physicians to retain their li­
censes. With a guideline, the Board could have easily seen and addressed 
the deviation, potentially changing the outcome of their determination.174 

The Chube brothers case illustrateS that, without a policy outlining 
standards of practice, the AG is left to argue under the theory of generally 
accepted medical principles, and the Board has no real way to evaluate bor­
derline prescribing practices.175 The Chubes were not linked to any over­
dose deaths; they kept some semblance of a medical records; and, they did 
not prescribe to family members.176 Commenting on the Chubes' federal 
trial and Board hearing, Dr. Rollin M. Gallagher, then president-elect of the 
American Academy of Pain Medicine, stated the problem was that ''there 
are not clear standards for prosecutors to follow, just like there are not clear 
guidelines for physicians to follow in easing pain."177 This is the heart of 
the interest for the Board and the AG. Clear standards to prosecute and 
evaluate are not available. Such is a disservice to the AG, the Board mem­
bers, and the Chubes, who might not have known what a medical record 
should contain to help prevent diversion and abuse. 

171. The participating Board members for the Chube hearing were Richard Krejsa, 
D.O. (geriatric medicine and family practice), Stacy Lankford, M.D. (urology), Bharat Barai, 
M.D. (hematology and oncology), Ralph Stewart. M.D. (ophthalmology), William Beeson. 
M.D. (otolaryngology and cosmetic SW"gel')'), Ms. Barbara Malone (consumer member). IND. 
MEn. LICENSING BD., MINuTES 17 (Apr. 28, 2005). 

172. United States v. Chube, 538 F.3d 693, 696 (7th Cir. 2008). 
173. IND. MED. Ll<;:ENSING BD., MINuTEs (Apr. 28, 2005). 
174. See Hoffinann & Tarzian, supra note 67, at 17 (A surveyed board member ex­

plained, "we have pain management guidelines that we've published, and it's easy to com- · 
pare a physician's behavior to those guidelines, but I'd say we refer to a pain management 
expert in about 20 percent of the investigations, but they [also] use our guidelines."). 

175. See Hoffinann & Tarzian, supra note 67, at 12 (Surveyed Medical Board membe(S 
explicated, "the board's attitude has changed; now we have pain management guidelines and 
have an established way of determining if a physician is deviating from those guidelines. 
We're more aware of the need for adequate pain management and how that should be docu­
mented."). 

176. See United States v. Chube, 538 F.3d 693. 
177. Terry,supranote 151. 



722 INDIANA IlEAL Til LAW REviEW [Vol. 9:2 

B. Clear Standards Put Physicians on Notice as to Proper Prescribing 
Practices 

In addition to a guideline proViding an evaluation and prosecution tool 
for the Board and the AG, a clear standard would communicate to physi­
cians what is expected of them when it comes to prescribing opioids for 
pain treatment. The ability of physicians to know the Board's expectations 
serves two different needs: (1) so the physician may prescribe without fear 
of state investigation, and (2) so that when there is an investigation, the 
physician may adequately defend himself. 

1. A Guideline Will Alleviate Fear of Regulatory Scrutiny 

When physicians are aware that their state medical board has a clear 
and published standard of practice, their concerns about state investigation 
will likely recede because they will know what the state expects them to do. 
As noted in the 2009 Michigan survey, Michigan physicians report that they 
do not fear regulatory scrutiny, which is directly related, at least in part, to 
the fact that Michigan has clear policies and law on prescribing controlled 
substances for pain treatment.178 The Model Policy was developed to "clar­
ifY the Board's position on pain control, particularly as related to the use of 
controlled substances, to alleviate physician uncertainty and· to encourage 
better pain management. "179 

Physicians who face investigation and charges will potentially pay a 
high price regardless· of whether discipline is handed down, including fi­
nancial costs, damage to reputation, loss ofbusiness, and other consequenc­
es.180 Physicians are aware of the costs, and in an effort to avoid 
investigation and charges, manr will alter their prescribing or avoid certain 
types of patients completely.18 A guideline, especially when coupled with 
broad dissemination and communication activities from the Board, can al­
leviate the tension between physicians and the fear that their prescribing 
practices will lead to damaging scrutiny. If the guideline states that the 
medical chart should contain a medical history, patient examination, and a 
medical reason for the prescription, then the physician will know what the 
Board and the AG will be looking for in a chart should a patient complain. 
Further, if one of the provisions is not practical or possible for the specific 
patient, the physician will be aware of his deviation from the guideline and 
can document the reasons for such deviation. Without knowing the evalua­
tion· criteria used by the Board, physicians will continue to undertreat pain 

178. MICH. DEP'T OF CM1Y. HEALTH. supra note 113, at 16. 
179. MODELPOLICY,supranote 71. 
180. Johnson, supra note 65, at 1029. 
181. /d. at 1030. 



2012] GUIDELINES FOR USING CON'IROLLED SUBSTANCES FOR PAIN 723 

and refrain from subjecting themselves to unwarranted investigation.182 

When physicians have a published guide from the Board, they can practice 
without fear because they will know the parameters of acceptable prescrib­
ing actions and will have a set of expectations with which they can comply. 
This is the core of barriers to adequate pain management, which the Board 
has the direct and sole ability to address and alleviate.183 

2. A Clear Guide Will Enable Proper Defense 

In addition to alleviating fear of regulatory scrutiny, a guideline will 
give physicians a clear standard they can use to defend their practices. 
Without a clear standard, physicians are unable to adequately defend them­
selves because there is no clear means under which to defend their actions. 
They are left to justifY their prescribing behaviors under a standard of gen­
erally accepted practice, as is the AG. While the AG is in the same position 
from an evidentiary perspective, the common outcome is for the physician 
to settle. 

On October 30, 2009, the. AG filed a complaint against the license of 
Dr. Michael Punnett.184 From March 2007 through November 2008, Dr. 
Punnett treated a patient for pain using different medication including 
Percocet, a schedule II controlled substance, Lortab, and Norco, both 
schedule III controlled substances.185 Throughout the course of the treat­
ment, the patient would ask for increased doses, decreased doses, early re­
fills, and new medication because the medication had either been lost, 
stolen, or flushed by his wife.186 On numerous occasions, Dr. Punnett re­
jected the patient's request for early refills or refused to ~rescribe anything 
more until the patient underwent another physical exam. 87 However, Dr. 
Punnett did prescribe different doses of medication at the patient's request 
several times-including when he claimed that he had lost his medication 
with his luggage, or that his wife had flushed them down the toilet .188 In 
April2008, Dr. Punnett noted in the patient's medical chart that the patient 
needed to be seen because of suspicious refill requests. Dr. Punnet exam­
ined the patient the next day, but there was nothing documented in the med-

182. Shannan W. Leelyn, Failures in Pain Management: The Collision of Law and 
Medicine, 27 T. JEFFERSON L. REv. 133, 154 (2004) (stating "[u]ntil [a] line is drawn and 
physicians are able to understand the limitations imposed on them by law, physicians will 
continue to under-treat chronic pain"). 

183. Gilson et al., supra note 15, at 119. 
184. Complaint, In the Matter of the License of Michael A. Punnett, 2009·MLB 0032 

(Ind. Med. Licensing Bd., Oct. 30, 2009). 
185. ld. 
186. Id. 
187. Id 
188. Id 



724 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

ical record as to what was discussed.189 After being notified by the patient's 
wife that the patient was lying about losing his medication, Dr. Punnett 
conducted a follow-up examination and discovered that the patient was tak­
ing eight to ten Itrdrocodone a day and had been admitted to a behavioral 
health program.1 During the meeting, Dr. Punnett noted in the medical 
chart that opioids should not be given and the patient should potentially be 
discharged from the practice.191 However, Dr. Punnett prescribed one last 
dose of Norco for the patient, and there was no mention in the medical chart 
as to a reason.192 

The AG charged Dr. Punnett with multiple violations of prescribing to 
a known addict, failure to keep abreast of current theory or practice, and 
failure to take proper precaution to identify and address the patient's addic­
tion.193 Rather than take his chances with the Board, Dr. Punnett settled 
and simply received a Letter of Reprimand from the Board.194 Had this 
case been presented before the Board, the outcome is speculative at best. 
Dr. Punnett did recognize that there were potential problems with the pa­
tient and brought him in for examination. However, he continued to pre­
scribe for pain for reasons unknown. Pain management is a tricky and 
extremely subjective practice.195 Maybe the patient really was in extreme 
pain, or maybe the patient, when he confessed he had a problem and was in 
a rehab program, truly needed the prescription in the medical judgment of 
Dr. Punnett. The point is, Dr. Punnett chose not to defend and place him­
self at the mercy of the Board. In ,the end, he settled for a potentially lesser 
discipline and walked away. Had there been some guidelines as to what the 
Board considered appropriate practice, Dr. Punnett would have been able to 
properly defend his practice and fight the charge before the Board While a 
letter of reprimand does not technically restrict his ability to practice, it is 
public record, and other physicians may think twice before referring pa­
tients to him-in fearing that they might be implicated should something 
worse surface in the future. 

The Punnett case illustrates the inability of physicians to adequately 
defend themselves and the propensity of a physician to settle rather than 
defend. This is an issue for the AG as well but presents a greater disad­
vantage to physicians because physicians stand to lose much more from an 
unfavorable outcome than does the AG. A guideline setting out evaluation 

189. Id. 
190. Id. 
191. Id. 
192. Id 
193. Id 
194. Stipulated Findings of Fact, Stipulated Conclusions of Law, Ultimate Conclusions 

of Law, and Order, In the Matter of the License of Michael A. Punnett, 2009 MLB 0032 
(lnd Med. Licensing Bd., June 30, 201 0). 

195. Jeffrey Wishik, Chronic Pain: Medical and Legal Aspects, 53 R.I. B. J. 23 (2004) 
{discussing the subjective nature of pain and ways to treat it appropriately). 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 725 

criteria would enable the physician to better evaluate his status under the 
guideline and thereby avoid an unwanted settlement because he could po­
tentially present his case before the Board with the confidence and the 
knowledge that he followed the Board's expectations. Had there been a 
guideline, Dr. Punnett may have made a special notation as to his medical 
reasons for prescribing,Norco to the patient after he discovered there were 
problems. Without a standard, many cases are too unclear, causing physi­
cians to settle since at least then they have some control over the out­
come!96 

C. The Patients Will Receive Better Treatment 

When physicians do not fear regulatory scrutiny and can properly de­
fend complaints, patients with chronic pain ultimately are the beneficiaries. 
Patients will now have more confident doctors who can not only aggres­
sively and effectively but also responsibly and safely treat their pain. 
Moreover, the general public benefits from more effective and consistent 
treatment by physicians prescribing controlled substances for pain treatment 
because good doctors are duly recognized, and those who contribute to pre­
scription drug abuse are more easily identified and successfully disciplined. 

VI. THE CASE AGAINST A GUIDELINE 

li1 spite of all the benefits to be gained by adopting a guideline for the 
use of controlled substances for pain treatment, there are those who disap­
prove of the proposal for various reasons. However, despite the arguments, 
a guideline with an enforceability mechanism is in the best interest for all 
concerned. 

A. There is No Enforceability With a Guideline 

The argument against a guideline as advocated by the AG's Advisory 
Division is that a guideline lacks teeth or enforceability and ultimately will 
be useless, or even more problematic and confusing to implement. Only 
statutes and regulations which are promulgated by the Board can be en­
forced, and a guideline would give a false sense of enforceability, ultimate­
ly meaning nothing when the Board actually contemplates discipline for 
physician conduct. It is important to note that the Board would not disci­
pline under the guideline, but rather; it would discipline under the Catch All 
statute citing the guideline as evidence of the physicians' inappropriate 

196. Hoffmann & Tarzian, supra note 67, at 36 ("[Standards] serve to reassure physi­
cians that they will not be disciplined for overprescribing opioids to patients with chronic 
pain if they conform to standards of practice and state pain policies."). 



726 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

practices without proper documented justification. In essence, the guideline 
would take the place of"generally accepted standards of practice." 

This argument is the main reason for the Board's failed attempt in 
2005 and 2006 to adopt a standard because the Board and the AO wanted a 
mandatory regulation, and physician organizations wanted a gUideline~ The 
drafters of the proposed rule, including an AO Advisory Division attorney, 
changed all of the "shoulds" to "shalls" to ·create an inflexible practice 
standard with the force of law. The Indiana medical associations complete­
ly opposed this effort, claiming that a hard and fast rule in the area of pain 
management would restrict medical decision-making and ultimately impair 
patient pain care.197 The medical associations argued that certain physi­
cians, such as emergency department physicians who use opioids, would 
fall under the requirements of the proposed rule and would technically be in 
violation when they did not complete a full medical history or devise a 
treatment plan.198 · · · 

Despite the Advisory Division's enforceability concern, the proposed 
solution that the Board should codifY a version of the Model Policy with a 
requirement for documented deviation, gives the standard teeth. to enforce 
because physicians would be required to follow·the guideline or document 
reasons for deviation. That way, the Board would be in a position to evalu­
ate the practices against the guideline and decide whether to accept justifi­
cations for deviation as legitimate. This solution creates a mandatory 
provision with maximum flexibility for physicians to treat pain. As such, 
medical organizations should accept the permissive nature of this scheme, 
and those concerned with being able to enforce the standard will have the 
means to require compliance or documented deviation by physicians. 

However, even if the Board rejects the proposed scheme and adopted 
a guideline similar to the FSMB's Model Policy, the PPSO has stated, 
"while guidelines do not have binding legal force,. they may help those reg­
ulated by an :~ency to better understand the regUlating agency's standards 
ofpractice."1 Both the Indiana medical associations and the PPSO's con­
cern is further substantiated by the following statement:· 

· Doctors are asking for reassurance, not more rules or 
laws. Even the best intentioned of them [laws and 
rules], create only more fears in the minds of doctors 
trying to do their best, and place more ammunition in 
the hands of lawyers and regulators! Doctors will 
avoid the treatment of pain, so as not ·to take the 

197. See Letter frOm Kevin R. Burke, M.D. on behalf of the Ind. State Med. Ass'n. to 
the Ind. Med. Licensing Bd. (Jan. 16, 2006) (on file with the Dir. of the Ind. Med. Licensing 
Bd.). · 

198. Letter from Am. Coll. ofEmer. Ph:Ysicians, supra note 134. 
199. AGuiDETOEVALUATION,supranote 105,at§2. · 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 727 

chance of "not being in compliance" with some minor 
detail. 200 · 

If the Board fornull.ly adopts a guideline, they are likely to use it when 
evaluating physician conduct as if it were binding because it has the 
Board's recognition as a standard of practice. Representatives of other 
medical boards that have guidelines or some other standard of practice have 
stated: . 

[I]f we don't have good documentation, if it doesn't 
appear that the physician's following the board's 
guide~s with respect to prescribing for pain, then 
we'll investigate ... forthe most part we adhere to [our 
pain guidelines] ... ,[we've made] a lot of progress ... 
. We set the minimum standard of care in any· state, 
documentation, ·informed consent, proper referral, 
etc., so we look for. that . . . the general policy that 
was ma.d.e known to physicians is that we leave pre­
scribing and .pain management control issues to their 
professional judgment, but if there is a complaint, 
they better have proper. docu:mentation, such as in-. 
formed consent, history and physical, monitoring, 
etc_20l .. 

A purely nwtdatory regulation simply should not be passed in such a 
subjective area. The Board must retain some discretion to evaluate physi­
cian conduct be<,:ause the goal is not to discourage physician conduct, but to 
encourage it without the restrictions inherent in mandatory standards. 
Moreover, if the Board were to adopt the Model Policy or some variation, it 
would likely only be a matter of time before Indiana medical associations 
also adopted the guideline as a clinical standard of practice for the profes­
sion. Thus, physician deviation, especially absent docw:pented justification, 
could also become subject to medical malpractice in civil cases?02 In other 
words, Board members are likely to use it to enforce the charging statute, 

200. Johnson, supra note 65, at 1016. 
201. Diane E. Hoffinann & Anita J. Tarzian, Achieving the Right Balance in Oversight 

of Physician Opioid Prescribing for Pain: The Role of State Medical Boards, 31 J.L. MED. & 
Ennes 21, 10 (2003). 

202. It is possible that when the Board adopts or codifies a guideline or policy for pre­
scribing practices for pain management, other medical associations may do the same as a. 
result of the Boards initial adoption. This is especially true of the Model Policy because the 
ISMA has already given it ~pport, and where such a policy becomes a standard of practice 
in the medical profession rather than just for the license purposes. an unjustified violation 
would become subject to civil liability. See Memorandum from Am. Coli. of Emer. Physi­
cians, supra note 122. 



728 INDIANA HEALTH LAW REVIEW [Vol. 9:2 

and physicians are likely to follow it, particularly when it is considered a 
standard of practice for the profession. Though the proposed solution best 
meets the enforceability concern. a formally adopted guideline will also 
garner compliance by the Board and medical community. That is all the 
enforceability that is needed. 

B. Restricts the Practice of Medicine 

In any case that a new law or guideline is developed, it will be argued 
that the practice of medicine will be restricted. This is true. and a guideline 
will restrict pain management to some degree because physicians will not 
have unfettered discretion to treat as they see fit "Pain management physi­
cians are restricted by these guidelines that the medical specialists claim do 
not make sense medically and impede the proper treatment of patients' 
needs regarding pain.'.2°3 

However, the degree that it is restricted is only to the extent that the 
physician has a plan of action. keeps good documentation, and prescribes 
responsibly. Dr. Punnett would not be allowed to prescribe to a potential 
addict without clear documentation as to why, and the Chube brothers 
would have been forced to take better precautions to prevent diversion and 
abuse. While this may be considered restrictive, it is minimal at worst and 
necessary to advance societal goals in preventing prescription drug abuse. 
Further, the whole purpose here is that any deviation is a clear deviation 
from accepted standards, and the guideline will not. automatically impose 
judgment as a rule would, but would instead allow for deviation where good 
cause is docuinented. So, if Dr. Punnett prescribed after he knew of his pa­
tient's abuse problems, he could document that the patient needed the med­
ication to survive his pain through the night and could argue that before the 
Board. 

A goal that is reinforced by a guideline is to hold physicians account­
able for their practices. The guideline looks for documentation, treatment 
plans, informed consent, and other items that accomplish accountability. 
As said before, deviation is allowable with documented justification, and 
the Board still retains discretion to adjudicate subjective physician conduct. 
Moreover, a formally adopted guideline is malleable and can be changed 
without the rigors of the rule-making process. ·When medical standards 
evolve, the guideline can be modified. This solution avoids unintended 
consequences because ambiguous standards and archaic requirements can 
be remedied more easily than a statute or regulation. Even though the pro­
posed solution of codifying a version of the Model Policy does not strictly 

203. Bhavani S. Reddy, The Epidemic Of Unrelieved Pain: The Ethical, Societal, and 
Regulatory Barriers Facing Opioid Prescribing Physicians, 21 J. LEGAL MED. 427, 438 
(2006). 



2012] GUIDELINES FOR USING CONTROLLED SUBSTANCES FOR PAIN 729 

fall under this malleability benefit, its requirement for documented justifica­
tion is malleable to the point that the justification can reflect new legitimate 
advances in pain management practices. 

C. Specific Standards Are Not Necessary to Achieve Physician Discipline 

Substandard care in prescribing practices to treat pain with controlled 
substances is currently established in Indiana without guidelines. The AG 
was able to successfully prosecute Dr. Edwards, Dr. Foley, and others in the 
past year without· guidelines. While that is true, as explained before, the 
physicians disciplined are either obviously prescribing with substandard 
care or are violating another specific provision. Further, in borderline cases 
such as those of the Chube brothers and Dr. Punnett, the AG had to rely on 
a settlement or an agreed order. The concern is whether the discipline will 
be as accurate, efficient, or consistent as it would be with a clear standard, 
and whether the AG is able to prosecute borderline cases, including those 
who are diverting with medicine as a pretext. Whether or not a guideline is 
necessary, it would undoubtedly make the AG's job easier and more effi­
cient to be able to point to specific deviations from a policy than to argue 
the physician deviated from generally accepted standards of practice. 

D. Patient Concern of Required Documentation 

In some instances, patients become uncomfortable with restrictions 
and guidelines under which their doctors require compliance contracts in 
controlled substance settings. 204 Patients feel they are not being trusted and 
are given an undesirable ultimatum to strictly comply or be dropped by 
their physician. 205 While this is a complex clinical issue beyond the scope 
of this Note, society's problem with prescription drug abuse is an epidemic 
in our country. Although this concern is legitimate and should be handled 
with delicacy by the physician, it is not a sufficient enough concern to out­
weigh the benefits to patient care achieved by a guideline. 

VII. CONCLUSION 

The Board has a duty to protect the citizens of Indiana, both from in­
adequate pain management and from diversion and abuse of controlled sub­
stances. Adopting or codifying a guideline would create a standard by 
which physician conduct could be evaluated and properly disciplined. A 
guideline also would help alleviate a major barrier to effective pain man-

204. Kevin B. O'Reilly, Pain contracts can undermine patient tnJst, critics say, 
AMEDNEWS.COM (Dec. 27, 2010), bttp://www;ama-assn.orglamednews/2010/12/27/ 
prsb 1227 .htm. 

205. Id 



730 INDIANA HEAL1H LAW REviEW [Vol. 9:2 

agement and allow the Board to closely evaluate physician practice, which 
accomplishes both the interests in protecting patients and the public at 
large. The Board is the only entity in Indiana with the authority to adopt a 
guideline and should do so not only because it is its duty, but also to ac­
complish the valuable clinical and regulatory objectives that a guideline is 
intended to address.