It’s a story that unfortunately never gets old: Career bureaucrats failing in their mission to address a major public policy issue try to shift the blame, shirk the responsibility and scapegoat the innocent.
In the case of the opioid epidemic, those bureaucrats are at it again. Despite the massive failure of the Drug Enforcement Agency (DEA) to recognize and deal with the enormous growth in the production of opioids (which is literally their job – to regulate production levels), and despite their crisis-fostering failure to end prescribing by problematic doctors (again, literally their job), the DEA is targeting pharmacists and pharmacies for blame.
Enter the Department of Justice with a headline-seeking, deep-pocket-targeted pending lawsuit.
But for once, one of their targets is fighting back. The Wall Street Journal reported in late October that Walmart had filed a preemptive lawsuit against the Department of Justice and the Drug Enforcement Agency ahead of a potential opioid-related suit by the DOJ.
In a suit filed last month in federal court, Walmart, which runs over 5,000 pharmacies, argued that DOJ lawyers are planning to target them without being able to cite any actual law or rules that they are violating.
The company is seeking a declaration from a federal judge that the government has no legal basis for such a lawsuit.
Walmart, as it argues in its filing, is caught between a rock and a hard place on the issue of filling opioid prescriptions.
On one hand, federal government lawyers have targeted them for filling customer prescriptions from certain doctors, arguing that pharmacists at Walmart should have inserted themselves into the doctor-patient relationship and refused to fill legitimate (no evidence of fraud or forgery) prescriptions despite having no knowledge of the patients’ medical history, treatment or illness.
On the other hand – as Walmart extensively details – if they refuse to fill legitimate prescriptions, they risk having their licenses revoked. In fact, many states have already taken action against Walmart for refusing to fill opioid prescriptions.
All pharmacies lose whichever choice they make.
Walmart is asking the court to resolve these conflicting demands by declaring that the Controlled Substance Act “does not require pharmacists to second-guess a registered and licensed doctor’s decision that a prescription serves a legitimate medical purpose.”
As Walmart said in its lawsuit, “[i]n the shadow of their own profound failures, DOJ and DEA now seek to retroactivity impose on pharmacists and pharmacies unworkable requirements that are not found in any law and go beyond what pharmacists are trained and licensed to perform.”
In their threatened action against Walmart, some DOJ career lawyers have identified hundreds of doctors whose written prescriptions they claim shouldn’t have been filled by Walmart pharmacies.
Yet, 70% of these very doctors continue to be actively registered with the DEA. So, government officials cannot even take action against the doctors they claim are writing suspicious prescriptions, but they threaten private companies for not stopping those very same doctors.
GET FOX BUSINESS ON THE GO BY CLICKING HERE DEA needs to do its job and crack down on doctors abusing their privileges, not target pharmacies for not doing the job DEA failed to do.
These threats are made worse by the fact that these government officials cannot point to any laws or official DEA guidelines that are being violated.
According to Walmart, the claims are based instead on alleged “violations” of informal letters and PowerPoint presentations. It should also be noted that by their own rules, DOJ is not allowed to base a case on such unofficial guidance.
The full power of federal law enforcement should not be unleashed on the basis of bureaucratic presentations!
Walmart is asking the court to declare that DOJ and DEA “must follow their own regulations and may not base any enforceable legal positions on the alleged violation of agency guidance rather than obligations found in a statute or duly promulgated rule or regulation.”
Clearly, the likely action by the Justice Department is not about addressing the real issue or enforcing the law, it is about shifting blame – and finding deep-pocketed targets to shake down.
Walmart should be commended for calling their bluff and taking steps to ensure that those responsible for fighting this crisis implement clear rules and regulations for pharmacists across the nation.
The opioid addiction crisis has been crying out for leadership by our government agencies and it's time put an end to their blame games and hold them accountable for real action.
Walmart's turn to the court is a bold and important move by the company to stop this intimidation effort. Pharmacies and pharmacists – whether Walmart or small corner pharmacy – deserve clarity, resolution and simple justice.
Steve Forbes is chairman and editor-in-chief of Forbes.