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Hastings Law Journal

Abstract

The United States is in the midst of a prescription opioid overdose and misuse epidemic. Although many factors have contributed to the escalation of prescription painkiller misuse, it parallels increases in the supply and prescribing of opioids. Prominent state-level regulatory interventions, such as the establishment of prescription drug monitoring programs (“PDMPs”), recognize prescribers as opioid gatekeepers. Prescribers, who are uniquely situated to distinguish between appropriate use and misuse of opioids, are a natural target for regulation. PDMPs also target patients who seek to obtain high volumes of prescription opioids for illicit purposes. PDMP policies are widespread but heterogeneous, largely uninformed by robust evidence or a systematic assessment of best practices. Whether these programs successfully reduce opioid misuse and overdoses remains unclear. As well, PDMPs present a number of legal and ethical challenges that, along with intervention effectiveness, warrant careful policymaker consideration going forward. This Article articulates and synthesizes for the first time key criteria intended to assist state regulators in dynamically evaluating and justifying PDMPs and other public health laws. The criteria focus on the legality of the policy, approaches to measure its effectiveness, and normative considerations that should be factored into good laws. Such a framework is crucial for policymakers given the complexities and magnitude of this public health challenge, the rich arsenal of policy options from which to choose, and the slow and uncertain progress in combating prescription painkiller misuse. Concluding recommendations include implementing PDMPs with the following features: timely and complete data, strong incentives for prescriber participation, user guidelines and education, integration into clinical work flow, and robust confidentiality and privacy protections. Ongoing evaluation of programs to identify features appropriate for retention and replication is also crucial if PDMPs are to fulfill their potential to curb prescription opioid overdose and misuse.

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