Don Nickles

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Montana (Mr. Burns) and the Senator from Arizona (Mr. McCain) are necessarily absent. I further announce that, if present and voting, the Senator from Montana (Mr. Burns) would vote ``yea.''

Mr. NICKLES. I announce that the Senator from Montana (Mr. Burns) and the Senator from Arizona (Mr. McCain) are necessarily absent. I further announce that, if present and voting, the Senator from Montana (Mr. Burns) would vote ``no.''

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from New Hampshire (Mr. Gregg) and the Senator from Arizona (Mr. McCain) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Oregon (Mr. Smith) is necessarily absent. I further announce that, if present and voting, the Senator from Oregon (Mr. Smith) would vote ``yea.''

Mr. NICKLES. I want to join my distinguished colleague from Iowa in his remarks, and also thank our distinguished Chairman for his commitment to enact this provision next year. Tax exempt organizations provide critical services to our communities, and this provision will make it far easier for them to continue to perform these important functions.

Mr. NICKLES. I announce that the Senator from Oregon (Mr. Smith), the Senator from Arizona (Mr. McCain), and the Senator from Washington (Mr. Gorton) are necessarily absent. I further announce that, if present and voting, the Senator from Oregon (Mr. Smith) would vote yea.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain), the Senator from Washington (Mr. Gorton), and the Senator from Oregon (Mr. Smith) are necessarily absent. I further announce that, if present and voting, the Senator from Oregon (Mr. Smith) would vote yea.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Missouri: (Mr. Ashcroft), the Senator from Missouri (Mr. Bond), the Senator from Kentucky (Mr. Bunning), the Senator from Tennessee (Mr. Frist), the Senator from Washington (Mr. Gorton), the Senator from Texas (Mrs. Hutchison), the Senator from Arizona (Mr. McCain), and the Senator from Oregon (Mr. Smith) are necessarily absent. I further announce that, if present and voting, the Senator from Kentucky (Mr. Bunning) would vote ``yea.''

Mr. NICKLES. I announce that the Senator from Missouri (Mr. Ashcroft), the Senator from Missouri (Mr. Bond), the Senator from Kentucky (Mr. Bunning), the Senator from Tennessee (Mr. Frist), the Senator from Washington (Mr. Gorton), the Senator from Texas (Mrs. Hutchison), the Senator from Arizona (Mr. McCain), and the Senator from Oregon (Mr. Smith), are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Missouri (Mr. Ashcroft), the Senator from Missouri (Mr. Bond), the Senator from Kentucky (Mr. Bunning), the Senator from Tennessee (Mr. Frist), the Senator from Washington (Mr. Gorton), the Senator from Texas (Mrs. Hutchison), the Senator from Arizona (Mr. McCain), and the Senator from Oregon (Mr. Smith) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. Mr. President, on June 23, 1999, Senator Lieberman and I introduced S. 1272, the Pain Relief Promotion Act, which addresses two specific concerns. First, it provides federal support for training and research in palliative care. Second, it clarifies federal law on the legitimate use of controlled substances. On October 27, 1999 the House passed its companion measure H.R. 2260 by the resounding bipartisan vote of 271 to 156. It is my hope that the Senate will soon have the opportunity to debate and vote on this important legislation. In anticipation of that debate, and in light of inaccurate characterizations of the second aspect of our bipartisan legislation, I believe it is important for me to ensure that the Record reflects precisely how this bill will--and will not--affect current federal law with regard to Drug Enforcement Administration (DEA) oversight of the use of federally controlled substances. To understand the effect the Pain Relief Promotion Act will have on pain control, we must begin with what the law is now. The Controlled Substances Act, CSA, of 1970 charged the DEA with the responsibility of overseeing narcotics and dangerous drugs--including powerful prescription drugs which have a legitimate medical use but can also be misused to harm or kill. In asserting its authority over these drugs, Congress declared in the preamble of the Controlled Substances Act of 1970 that ``Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic'' (21 U.S.C. 801 (6)). In 1984, Congress amended the CSA due in part to a specific concern regarding the misuse of prescription drugs in lethal overdoses. The then Democratic-controlled House and a Republican Senate further strengthened the Act, empowering the DEA to revoke a physician's federal prescribing license if he or she uses it to endanger ``health and safety'' regardless of whether state law has been violated (21 U.S.C. 824, referencing 21 U.S.C. 823). The chairman of the Health subcommittee in the House agreed: ``Drugs legally manufactured for use in medicine are responsible for a substantial majority of drug-related deaths and injuries'' (Rep. Waxman, Hearing of July 31, 1984, Hearing Record No. 98-168, p. 365). Congress' view was that while the states are the first line of defense against misuse of prescription drugs, the Federal Government must have its own objective standard as to what constitutes such misuse--and it must have the authority to enforce that standard when a state cannot or will not do so. Congress' 1970 and 1984 decisions have been upheld time and time again by federal courts. It is clear that federal law is intended to prevent use of these drugs for lethal overdoses, and contains no exception for deliberate overdoses approved by a physician. Nowhere in the Controlled Substances Act has death or assisting death ever been considered a ``legitimate medical purpose'' for use of these drugs. In the past, physicians who were involved in the use of these drugs for suicide or other lethal overdoses have lost their federal authority to prescribe controlled substances on the grounds that they had endangered ``health and safety.'' In 1997, Congress passed the Assisted Suicide Funding Restriction Act of 1997 without a dissenting vote in the Senate and by an overwhelming margin of 398-16 in the House. President Clinton stated in signing the bill that ``it will allow the Federal Government to speak with a clear voice in opposing these practices.'' He further warned that ``to endorse assisted suicide would set us on a disturbing and perhaps dangerous path.'' I would add only that authorizing a federal agency to endorse the use of controlled substances for assisted suicide would similarly ``set us on a disturbing and perhaps dangerous path.'' In November 1994, the State of Oregon adopted by referendum the so- called ``Death with Dignity Act,'' allowing physicians to prescribe medication for the purpose of assisting patients' suicides. The week of that vote, Professor George Annas of Boston University pointed out the inconsistency between the Oregon referendum and the Controlled Substances Act in an article in the New England Journal of Medicine. He questioned whether such a state law was compatible with existing federal laws governing federally controlled drugs, ``since the drafters of the federal statute certainly did not have this purpose [assisting suicides] in mind.'' However, on June 5, 1998, overturning a previous determination by her own DEA Administrator, the Attorney General issued a letter carving out an exception for Oregon so it can use federally-controlled substances for assisted suicide. She claimed that Congress did not ``intend to override a state determination as to what constitutes legitimate medical practice in the absence of a federal law prohibiting that practice.'' The Pain Relief Promotion Act will respond to the Attorney General's challenge, by clarifying that the intentional misuse of these drugs to cause patients' deaths is not authorized by Congress in any state, nor has it ever been. On October 27, 1997, Oregon's ``Death with Dignity Act'' became effective. In the first year at least 15 patients have committed suicide with doctor's assistance under the new Oregon law. We really do not know the total number, because all reporting of cases is left completely in the hands of the doctors themselves, and the Oregon Health Division admits it has no idea how many unreported cases there are. But regarding those 15 reported cases we know one thing: Every one of those patient's deaths was caused by a federally controlled substance, prescribed with a federal DEA registration number, using federal authority. Today, without any decision to this effect by Congress or the President, the federal government is actively involved in assisting suicides in Oregon. To hear some of the critics of this bill you might think that the Pain Relief Promotion Act creates a new authority on the part of the DEA to revoke doctors' registrations if they use controlled substances to assist suicide. On the contrary that authority has existed for 29 years and it exists now. Attorney General Janet Reno was very clear on this matter in her letter of June 5, 1998: ``Adverse action under the CSA may well be warranted . . . where a physician assists in a suicide in a state that has not authorized the practice under any conditions, or where a physician fails to comply with state procedures in doing so.'' What does this mean for current law and practice? First, the DEA has full authority to revoke a DEA registration for assisting suicide in any of the 49 states where assisting suicide is not authorized by state law. While critics of the Pain Relief Promotion Act have said that empowering the DEA to investigate physicians in such cases will have a ``chilling effect'' on the treatment of pain, the fact is that such authority already exists in 49 states. What about the one State, Oregon, where the Attorney General said the DEA will not take adverse actions against physicians for assisting suicide in compliance with the Oregon law? Even in Oregon many cases of assisting suicide remain illegal under state law. The state law authorizes assisting the suicide of those who are terminally ill, but not others. Under the Attorney General's determination, then, the DEA can continue to review cases of assisting suicide to make sure they do not involve those who are not terminally ill, and it can scrutinize whether a given use of pain medication was really intended to assist suicide. All aspects of the Oregon guidelines for legally valid assisted suicide are also subject to DEA investigation, since the Attorney General has only authorized physicians to use federally controlled drugs for assisted suicides when they fully comply with those state guidelines. Thus, as interpreted by the Attorney General, a registration to prescribe federally controlled substances can be revoked under the current Controlled Substances Act if these substances are used to assist suicide in any state in the Nation, with the exception of certain cases of assisted suicide that Oregon has legalized for the terminally ill. If DEA scrutiny of doctors' prescribing practices were going to ``chill'' the practice of pain control, that would already be occurring under current law. How does the Pain Relief Promotion Act impact this situation? It establishes that, for the first time in federal law, the use of controlled substances for the relief of pain and discomfort is a ``legitimate medical purpose,'' even if the large doses used in treating pain may unintentionally hasten death. Intentionally causing death or assisting in causing death remains forbidden. Thus this bill does not increase the DEA's regulatory authority at all. On the contrary, its only effect in 49 states (and even in Oregon, in cases involving those who are not terminally ill) is to provide new legal protection for physicians who prescribe controlled substances to control pain. In Oregon, this bill eliminates the Attorney General's artificial exception designed to accommodate assisted suicides that are no longer penalized under Oregon law. The DEA can meet its responsibility here simply by looking at the reports required by Oregon law, in which doctors must identify the drugs used to assist suicide. Those records will make it clear whether federally controlled drugs were used; and since the physician is clearly reporting that his or her own intent was to help cause death, there will be no question of murky intentions or ambiguity. Thus this bill will not lead to any increase in the DEA trying to ``second guess'' or infer physicians' intentions, even in Oregon.*****-*****- -Name: -Payroll No. -Folios: J1S/13-J1S/14 -Date: - Subformat: What of any unreported cases in which physicians assist the suicides of terminally ill patients? Those assisted suicides are already a crime under Oregon law, and thus already subject to adverse action by the DEA as well under the Attorney General's interpretation. Only if a physician officially reports the case to the Oregon Health Division is he or she exempted from state criminal penalties. So those cases are already covered by the same DEA authority that currently applies to assisted suicides in the other 49 states. Let me take this situation step by step. First, removing the Oregon exception to the existing nationwide policy cannot increase any ``chilling effect'' on pain relief outside of Oregon, because the bill does not increase one iota the authority of the DEA to investigate the misuse of controlled substances to assist suicide outside of Oregon. In fact, in those states its only effect is to provide a more explicit ``safe harbor'' for the practice of pain control, which is a significant advance and improvement for doctors and terminally ill patients. This is also true of assisted suicide cases within Oregon that do not comply with the state's reporting requirements or other guidelines. In all these cases, the Pain Relief Promotion Act gives the DEA no new mandate to investigate cases of assisted suicide more directly. Rather, it is expected to follow its longstanding practice of generally deferring to state authorities and allowing them to take the lead in investigating possible wrongdoing. Second, no new questioning of physicians' intentions is warranted to address the cases of assisted suicide that are now permitted under Oregon law. To be free of criminal penalties under state law in Oregon, a doctor who assists a suicide must submit a report to Oregon authorities that includes information on the drugs prescribed to assist the suicide. The Drug Enforcement Administration, DEA, can obtain those reports from the Oregon authorities. It already has the authority to subpoena them, if necessary; again, our legislation has no impact on this. Thus, even in Oregon, this bill will not result in any increase in DEA oversight or investigations of doctors based on their prescribing patterns or the dosages they use for particular patients. This is clearly stated in the House Judiciary Committee report on this bill, H. Rep. 106-378 Pt. 1, pp. 12-13. It follows that if this bill is enacted, any doctors in Oregon who prescribe controlled substances for pain relief need not fear any increase in DEA scrutiny of their practices, and therefore should not in any way be deterred from prescribing adequate pain relief. This bill cannot have a ``chilling effect'' on pain control, but will have the opposite effect. For the first time, it will place in the Controlled Substances Act, as the American Society of Anesthesiologists notes, ``recognition that alleviating pain in the usual course of professional practice is a legitimate medical purpose for dispensing a controlled substance that is consistent with public health and safety, even if the use of such a substance may increase the risk of death.'' The American Medical Association says this bill, ``provides a new and important statutory protection for physicians prescribing controlled substances for pain, particularly for patients at the end of life.'' As the American Academy of Pain Management observes, this will protect the ability of ``prescribers to relieve pain without fear of regulatory discipline.'' Those who are concerned about the possibility of a negative impact on pain relief if we pass this bill need to answer this question: do they believe that now the Drug Enforcement Administration is having a chilling effect on pain relief because federally controlled substances cannot be used to assist suicide in 49 states and even, in many cases, in Oregon? If the answer is ``no,'' then there is no basis to be concerned about this bill--for this bill will not increase investigations or oversight into the dosages of drugs used for pain relief, and in fact instructs the DEA to be even more sensitive to physicians' need to prescribe large doses of these drugs for pain control. If the answer is ``yes,'' then there is a great need for this bill-- because for the first time it adds specific protections for doctors who prescribe controlled substances for pain control--resulting in a decrease in any ``chilling effect'' that may exist under current law. Let me quote from the American Medical Association: The bill would not expand existing criminal penalties in the CSA for persons whose unauthorized use of a controlled substance leads to someone's death. . . . The bill would not expand the DEA's authority concerning jurisdiction, investigations or enforcement regarding the CSA. In fact, the inclusion of a recognition of the ``double effect'' in the CSA provides physicians in all jurisdictions an additional statutory protection in cases of alleged [physician- assisted suicide]. The bill has the potential, through its educational provisions, of sensitizing law enforcement personnel to the multiple issues of end-of-life care and prescribing. It is noteworthy that although the Justice Department expressed concern about the portion of the bill that would prevent the use of federally controlled substances to assist suicide in Oregon, it agrees that the bill would aid, and not hinder, pain relief. In a letter dated October 19,1999, the Justice Department wrote that the bill ``would eliminate any ambiguity about the legality of using controlled substances to alleviate the pain and suffering of the terminally ill by reducing any perceived threat of administrative and criminal sanctions in this context. The Department accordingly supports those portions of [the bill] addressing palliative care.'' This bill makes it easier, not harder, to use controlled substances to relieve pain. That is why so many major medical organizations, including the National Hospice Organization, the American Academy of Pain Management and the American Society of Anesthesiologists, as well as the AMA, strongly support its enactment. Some may wish to abolish the Controlled Substances Act altogether. They may think that the federal government's longstanding insistence on monitoring the distribution of these powerful drugs is an unwarranted intrusion into medical practice. I disagree with that stand, but at least it can be understood as a consistent position. What is untenable is the claim that this particular bill, which clearly improves the law's sensitivity to medical judgments on pain control, somehow mysteriously worsens that situation. Once we understand what the current law is and what this bill does, that claim simply does not make sense. In short, the Pain Relief Promotion Act will foster pain control. It will improve existing law by adding significant new legal protections for physicians and pharmacists who prescribe and dispense controlled substances for pain control. It will reduce, and in no way increase, any possible ``chilling effect" that could deter adequate pain control. And by clarifying federal law so the federal government will not facilitate the medical institutionalization of assisted suicide in any state, this legislation may help discourage doctors from simply suggesting assisted suicide instead of working to address their patients' real problems of uncontrolled pain. As protectors of public health and safety we should be encouraging doctors to kill the pain, not the patient. Mr. President, I ask unanimous consent that the following two editorials be printed in the Record.

Mr. NICKLES

Mr. NICKLES. Mr. President, I want to make a few comments regarding the nomination of T. Michael Kerr to be Administrator of the Wage and Hour Division of the Department of Labor. I held up this nomination until I could secure an agreement regarding the issue of unauthorized break time from the Secretary of Labor, outlined in a letter I will submit for the Record. The need for this agreement with the Secretary was precipitated by a case pending before the Wage and Hour Division regarding an employee exceeding the allotted time for a rest/period break, and an employer deducting from the employee's compensation the time taken in excess of the break time. The Fair Labor Standards Act does not require employers to provide its employees with a rest period/breaks. Nevertheless, many employers offer short breaks to their employees. Although the duration of a voluntary break is up to the employer, the breaks generally run between 5 and 20 minutes. The Department of Labor does recognize that employers have the flexibility to determine the number of breaks and the length of breaks that they offer to their employees. The Department of Labor has taken the position that when an employer allows its employees to take a short break and an employee abuses the break time policy by exceeding the time that the employer allotted for the break, the employer must still compensate the employee for the first 20 minutes of the break. Further, the Department of Labor has taken the position that if an employer offers its employees a compensable break of less than 20 minutes in duration, and an employee's break time exceeds the time that the employer allotted for the break, then the employer's only recourse against the employee is disciplinary action (such as a reprimand or termination), or elimination of the rest period. Under the agreement I reached with the Secretary, the Department of Labor will conduct a complete review of its policy regarding unauthorized breaks. That review will be completed by February 1, 2000. Upon completion of the review, the Department of Labor will submit its findings in writing to the Chairman and Ranking Members of the relevant committees in the House and the Senate. The review will include consideration of what outcome is in the best interest of the employee if the employee exceeds the allotted time of a rest period/break: disciplinary action against the employee (such as a reprimand or termination); elimination of the rest period/break option; or deductions of compensation for the time in excess of the allotted break time. Also, the Secretary committed the Department of Labor will assure that the resolution of any cases in which unauthorized break times are at issue, will be consistent with the findings in their review. This is an important review of what is clearly an outdated policy. I look forward to the outcome of their review, and I thank the staff at the Department of Labor for working in good faith with my office, and the Secretary for working to a quick resolution of this issue so this nomination can move forward. I ask unanimous consent that a letter from the Secretary of Labor be printed in the Record.

Mr. NICKLES

Mr. NICKLES. Mr. President, I ask unanimous consent that the Senator from Ohio have charge of the time until 11:35 and then the remainder of the time under the charge of the designee of the minority leader.

Mr. NICKLES. Mr. President, my colleague from Nevada spent several minutes outlining a unanimous consent. It was on the time of the Senator from Ohio. I wonder if we might accommodate that.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain), is necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) and the Senator from Ohio (Mr. Voinovich) are necessarily absent.

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) and the Senator from Ohio (Mr. Voinovich) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) and the Senator from Pennsylvania (Mr. Santorum) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) is necessarily absent.

Mr. NICKLES. I move to reconsider the vote and to lay that motion on the table. The motion to lay on the table was agreed to. Vote On Amendment No. 3516

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) is necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) is necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain), and the Senator from Arizona (Mr. Kyl) are necessarily absent. I further announce that, if present and voting, the Senator from Arizona (Mr. Kyl) would vote ``yea.''

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Arizona (Mr. McCain) is necessarily absent.

Mr. NICKLES

Mr. NICKLES. Note that the Senate Finance Committee approved most of the provisions outlined by Senator Stevens and later all of the provisions in his proposal were included in the Senate version of the Taxpayer Refund Act of 1999 that passed the Senate on July 30th. The problems for working people in multiemployer plans associated with section 415 concern me and I understand the Budget Chairman will join me in working to secure the provisions described by Senator Stevens.