Three former Drug Enforcement Administration officials urged Democratic lawmakers Tuesday to repeal a 2016 law that effectively took away the agency's most potent weapon against distributors and manufacturers of prescription opioids.
The trio said the authority to instantly freeze shipments of powerful painkillers was the DEA's most effective tool against giant companies that ignored legal requirements to report suspicious orders of the pills by pharmacies, doctors and others who diverted them for illegal use. Those "immediate suspension orders" not only protected the public from the most egregious abuse but deterred other companies as well, they said at a session held by Senate Democrats.
"It's not just about stopping the individual [companies], it's about showing that we're out there doing that," said Jonathan P. Novak, a former DEA lawyer now in private practice.
In a joint investigation published Oct. 15, The Washington Post and "60 Minutes" described how drug distributors worked with a handful of lawmakers at the height of the opioid epidemic to push through a law that stripped the DEA of its most feared weapon. The reports also said that a drug company lawyer who previously worked for the DEA helped write an early version of the law.
By changing a few words in the law that governs drug distributors' responsibilities, Congress virtually eliminated the DEA's authority to use immediate suspension orders, according to a law review article written by DEA Chief Administrative Law Judge John J. Mulrooney II.
"This bill basically tore the heart out of the diversion program," Frank Younker, a former supervisor in the DEA's Cincinnati field office who retired in 2014, told senators Tuesday. Younker and the other two speakers at Tuesday's session were quoted in the Post and "60 Minutes" reports.
The effort to change the law was led by Rep. Tom Marino (R-Pa.) and Sen. Orrin G. Hatch (R-Utah). Hatch has noted that the law was approved by unanimous consent in both houses of Congress and signed by President Barack Obama, and that the DEA ultimately agreed to compromise language in the bill.
Two days after the reports, Marino withdrew his name from consideration to head the White House Office of National Drug Control Policy. Democratic lawmakers, 44 state attorneys general and the association that represents drug manufacturers, among others, have since called for the law's repeal.
But prospects for repeal appear bleak. Sen. Claire McCaskill (Mo.), the ranking Democrat on the Senate Homeland Security and Governmental Affairs Committee, who convened Tuesday's "roundtable" session, noted that no Republicans have signed on to her repeal bill. No Republican senators attended Tuesday's session. Sen. Charles E. Grassley (R-Iowa) has promised a hearing on the law, but it has not been scheduled.
McCaskill also said Tuesday that she was "bitterly disappointed" that the DEA refused to allow Mulrooney to appear.
Nearly 200,000 people died from overdoses of prescription opioids between 2000 and 2016. The Post reported last year that 13 drug distributors — including three companies that control 85 percent of all drug commerce in the United States — knew or should have known that hundreds of millions of painkillers were being diverted to the black market.
On Tuesday, Joseph T. Rannazzisi, who for a decade ran the DEA office that attempted to control illegal diversion, traced the agency's capitulation on the 2016 law to the arrival of a new administrator, Chuck Rosenberg, in 2015. Rosenberg soon replaced Rannazzisi, who retired in October of that year. Rannazzisi said that during his tenure, the DEA strongly opposed the legislation.
"I've listened to members of Congress say DEA had the opportunity to oppose the bill but didn't. This is very misleading," he said.
Rannazzisi noted that while investigators have used immediate suspension orders for nearly five decades, they have been successfully challenged only five times.
All three speakers said morale and effectiveness have plummeted in DEA field offices as investigators have felt the impact of the law and a slowdown in enforcement by DEA lawyers. Younker said field personnel are now trying to handle cases themselves rather than overcome those obstacles.
"Reinstate the immediate suspension orders," Novak said. "I think the DEA needs to get back on its feet and start enforcing."