Two midcoast business owners have notified the state that they intend to file a lawsuit over new state rules that require long-term users of prescription opioids to lower their doses.

Eric Wass, who owns a roofing company in Rockland, and Brian Rockett, who owns a lobster business in Owls Head, are represented jointly by attorney Patrick Mellor of Rockland.

“There are no villains here. The state is trying to do the right thing, but there is no question in my mind that my clients will be crushed by this if their physicians are required to taper them down,” Mellor said Tuesday.

The notice of intent to file was first reported by WLBZ-TV in Bangor.

At issue is the state Department of Health and Human Services’ prescription monitoring program that went into effect in January and requires long-term opioid users to taper their daily doses to 100 morphine milligram equivalents (mmes) per day by July 1.

The program was adopted to help combat the drug crisis that claimed 378 lives in Maine last year, with 313 of those overdoses caused by opioids. Three out of four heroin users first become addicted to prescription opioids, according to the American Society of Addiction Medicine.

Both Wass and Rockett take daily doses of prescription opioids for degenerative disc disease that well exceed the 100 mme level, legally sanctioned regimens that each man has followed for nearly two decades. Unless they continue to receive pain management help, Mellor worries that both men may be forced to give up their livelihoods.

Mellor is seeking an exemption to the rule that would allow his clients to continue taking doses higher than 100 mmes, but without any guarantees of an exemption, Mellor says he may be forced to sue the state. Maine law does allow for the government to be sued, Mellor said, provided the suit meets certain exceptions. In this matter, he says the state taper-down rule violates federal laws protecting people with a disability.

EXEMPTION RATHER THAN LITIGATION

“My goal here is to work with the Legislature and the Department of Health and Human Services to get something done that is positive and doesn’t end up in court, where it could drain the state’s resources,” he said.

Mellor said the state failed to carve out an exemption for long-term users – he refers to his clients as legacy patients – when drafting the rules, even though the Maine Medical Association advised that an exemption would be wise.

“It’s a one-size-fits-all rule,” Mellor said. “My clients, they are employers and business people who have never been in trouble and have been lawfully prescribed these medications for years to manage their pain. They don’t get high on these. They take them to function.”

In his March 27 notice of claim addressed to DHHS Commissioner Mary Mayhew, Mellor said the state’s prescription monitoring program “disproportionately burdens disabled individuals because of their unique needs.”

“To the claimants (Wass and Rockett) and many medical professionals, the state’s approach is unreasonable,” Mellor wrote.

Mellor contends that if the new rules and regulations are implemented, they will constitute a violation of the Americans With Disabilities Act and the Federal Rehabilitation Act of 1973. Mellor says his clients fit the definition of disabled individuals.

He also states in his notice of claim – the precursor to a lawsuit – that his clients have started tapering off their medications. He said the tapering has “caused them significant bodily harm and will render them unable to work and participate in basic life activities due to unabated chronic pain.”

HIGH DOSES FOR 16,000 MAINERS

About 16,000 Mainers are currently prescribed high doses of opioids for chronic and acute pain. That entire group of patients will be required to taper down to 100 mmes. Mellor estimates that 1,400 to 1,600 Mainers in that pool, including Rockett and Wass, will become incapacitated.

In February, Mellor sent a letter to several legislative leaders asking that they craft changes to the prescription monitoring program law that would exempt his clients from the DHHS taper down rule. But Mellor said Tuesday there has been no movement on the legislative front.

He said that if either the state or the Legislature acts to carve out an exemption for his clients and others like them, there will be no need to file a suit. The only exemption now allowed is for patients in hospice or those receiving palliative care for a serious illness.

Samantha Edwards, spokeswoman for the DHHS, responded to Mellor’s notice of claim.

“The department recognizes the insidious nature of chronic pain as well as the need for providers to be able to provide the highest level of care to patients,” Edwards said in an email.

She said the law contains several exemptions that would allow a patient to exceed the 100 mmes threshold.

“The palliative care exemption, among others, does provide a provider with the ability to look at each individual case and make a decision that would best provide for the patient,” Edwards said.

She said the final set of rules, which were developed by the DHHS, will become public Friday.

PHYSICALLY DEMANDING JOBS

The 62-year-old Rockett, who owns and operates a lobster wholesale business called Redeemed Lobster, said he has tried all sorts of pain management techniques over the past 16 years, from seeing a chiropractor, having surgery for injuries suffered in car accidents, and acupuncture, but taking medication to manage his pain seems to work best.

His job takes him to Vinalhaven, where he buys direct from the island’s lobstermen. Last year, Rockett moved more than 2 million pounds of lobster from the island to the mainland. Although he has a crew to support him, Rockett said the work can be physically demanding.

“I suffer day in and day out. I do whatever I can to get by,” he said.

Rockett said he has been taking 450 mmes of pain medication daily for the past 16 years, but in the past month his doctor has tapered his dosage to about 300 mmes.

“I am having a difficult time,” Rockett said. “I am worried because I don’t know what I am going to do if I have to go down to 100.

“I am the face of my business. If I am not there working, I will lose boats left and right,” he said.

Rockett also works to support his wife and 15-year-old daughter.

Wass, who owns and operates Coastal Copper and Slate in Rockland, could not be reached for comment Tuesday evening. But he told WLBZ that he has been taking pain medication for 20 years.

“It’s an awful thing having to deal with chronic pain, especially when we’re trying to keep working,” Wass said. “We’re not going on disability, we’re not going on welfare. I understand the whole problem with these people overdosing, but it has nothing to do with us.”

Dennis Hoey can be contacted at 791-6365 or at:

[email protected]

Eric Russell can be contacted at 791-6344 or at:

[email protected]