On December 12, 2017, the Senate Judiciary Committee held an oversight hearing to discuss the Ensuring Patient Access and Effective Drug Enforcement Act (the “Act”). The Act has been the subject of recent sensationalized news reports which included interviews with a purported DEA whistleblower and other former DEA employees.

In their opening remarks Sens. Grassley and Feinstein  directly contradicted the narrative of the former DEA employees who are critical of the Act and further questioned the lack of complete reporting of the facts by the media.  Specifically, Sens. Grassley and Feinstein noted that the number of Immediate Suspension Orders (“ISOs”) issued by DEA has increased since enactment of the Act as compared to the number of ISO’s issued by the agency in the years immediately preceding the Act. Moreover, DEA did not object to the Act and advised President Obama to sign the Act. Sen. Grassley also correctly noted that the news reports failed to disclose Mr. Rannazzisi’s clear conflict of interest based on his service as a consultant for trial attorneys suing pharmaceutical companies.

Sen. Hatch also provided important insight on how the bill became law, first noting that the Department of Justice (“DOJ”) communicated in writing that it did not object to the Act. A matter that has not been reported, but that completely undermines the premise of the news reports is that the language in the Act which sets the legal standard for issuing an ISO, was provided to Congress by DOJ. A review of previous versions of the Act reveals that the language provided by DOJ (which ultimately became the final language in the Act) raised the legal standard from what was proposed in the original versions of the bill.

Lastly, DEA specifically contradicted the false narrative that has been widely reported regarding what the Act actually changed. DEA testified that the Act did not strip DEA of its authority to issue ISOs, but simply created a legal standard for issuing ISOs. It was interesting that when given a chance to provide an objection to the Act, DEA indicated that the agency and the Department of Justice are seeking only an amendment of the Act and not rescission.

It is not clear, based on this hearing, if Congress will actually amend the Act. The hearing, however, went a long way towards correcting the record on how the Act became law (in its present form) and the true impact of the Act on DEA’s enforcement and investigative functions.