GAO Report Identifies Challenges and Best Practices to Safe Drug Disposal

Arnall Golden Gregory LLP

Misuse of controlled substances continues to be a serious public health problem in the United States.  The most commonly misused controlled substances include opioids (such as oxycodone), which are used to treat pain, and central nervous system depressants (such as diazepam), which are used to treat anxiety and sleep disorders.  These types of drugs are commonly prescribed for patients in hospice care.  When hospice patients die at home, they often leave behind commonly misused controlled substances.

Proper disposal of these medications is critical to preventing drug diversion, i.e., the transfer of a prescribed controlled substance from a lawful to an unlawful channel of distribution or use.  However, hospices nationwide are struggling to effectively dispose of controlled substances following a patient’s death while maintaining compliance with current laws and regulations, according to an April 2020 report released by the U.S. Government Accountability Office (GAO).  These challenges include the cost of certain disposal methods, unavailability of required disposal witnesses, and inconsistencies between state and federal laws over which hospice employees may dispose of controlled substances.

The Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act), enacted in 2018, allows employees of qualified hospice programs to dispose of unused controlled substances by collecting and destroying the drugs in patients’ homes.  The federal law supplements hospice drug disposal laws enacted in a number of states.

The SUPPORT Act requires GAO to conduct an annual report on the law’s impact.  For the 2020 report, GAO interviewed officials from the Centers for Medicare & Medicaid Services, the Drug Enforcement Administration, three national hospice trade associations, two national nurse trade associations, eleven state hospice associations, and seven hospices.

Since the law’s enactment, hospices have faced challenges with the cost of certain disposal methods, a lack of a witness to the disposal process, and inconsistencies between state laws and federal law concerning which hospice employees may dispose of controlled substances, GAO found.

“Disposal can sometimes be a time-consuming and resource-intensive activity.  According to two state hospice association officials, sometimes a patient’s family will ask the disposing hospice employee to dispose of all of the patient’s unused prescription drugs that remain in the home, not only controlled substances or drugs prescribed under hospice care,” GAO reported.  “Officials from two of our selected hospices and two state hospice associations told us that it is not atypical for a hospice patient to have bags or boxes full of unused medications, though the officials did not describe this as a disposal challenge for hospices.”

The report identified best practices for drug disposal in compliance with the SUPPORT Act.  These included staff education on controlled substances and disposal, prescription drug counts performed by hospice employees to determine if controlled substances are being used properly, use of lock boxes to limit access to controlled substances in situations where diversion is suspected to be a risk, use of at home disposal products, having a witness for the disposal of unused controlled substances, and consistent documentation of the drug disposals.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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