Talk of prescription drug database access abounds but still no bill

At multiple legislative hearings, law enforcement officials have emphasized their need for greater access to the Vermont Prescription Drug Monitoring System, a state database that maintains information on certain controlled substances. Gov. Peter Shumlin has urged the Legislature to pass a law granting police access to the database, which is currently confidential.

The proposal has has been criticized by the American Civil Liberties Union, which claims it could result in invasions of personal privacy and violations of constitutional rights.

Rep. Ann Pugh, D-South Burlington, said the House Committee on Human Services will take up the issue next week most likely.

For now, there is no bill.

The Department of Health launched the Prescription Drug Monitoring System in 2009. Pharmacists report a patient’s name, date of birth, information about the prescription, the doctor and the pharmacist. After six years, the department must destroy the data.

This legislative session, the Department of Health has emphasized the dangers of prescription drug abuse. A 2008 survey reported 13 percent of Vermonters age 18 to 25 had misused prescription drugs in the past year.

Keith Flynn, commissioner of the Vermont Department of Public Safety, says deaths from prescription opiate and heroin addiction outpaced those from car accidents and murders in the state last year. Law enforcement has had difficulty tracking prescription drug abuse. One of the problems, he says, is limited access to information that could help prevent crimes.

Flynn proposes granting three special officers access to the database, based on what is called a “bonafide investigation.” At this point, that term has yet to be defined, in part because there is no legislation yet. The Vermont Board of Medical Practice investigators already have access to the database.

Flynn said access to the database is part of a comprehensive approach to the problem that includes education.

“It enhances the educational opportunities because it gives more understanding of the root of the problem,” Flynn said.

He said access will allow investigators to identify sources of “diversion,” meaning illicit use of prescription drugs, and to branch out an investigation.

At issue, however, is what standard law enforcement officers would have to meet to gain access. To get a warrant to search a home, for example, police need to show probable cause. This is a higher standard than “reasonable suspicion” the basis for pulling over a driver, for example.

Police already have essentially unfettered access to patient records in pharmacies, but when the Legislature created the prescription drug monitoring system, it amended the law to specifically prohibit access to the database. Flynn wants that legislative prohibition lifted.

“The bottom line is that I don’t think the privacy concerns are equal to those that exist to require probable cause,” Flynn said.

In a Jan. 4 hearing, Flynn and Capt. Glen Hall of the Vermont Drug Task Force tried to explain to lawmakers what a “bona fide investigation” is.

“You’re not just making it up,” Flynn explained.

Hall said the standard for pharmacies is akin to “reasonable suspicion.”

A 1992 case from the Vermont Supreme Court verifies that pharmacies are in fact a “pervasively regulated” industry, which allows law enforcement to conduct so-called regulatory inspections. That case produced a strongly worded, skeptical dissent that questioned whether law enforcement officers would use such administrative search warrants as a subterfuge for investigating suspected criminal activity.

It is this type of action that has raised concerns for the local ACLU.

Allen Gilbert, executive director of the organization’s Vermont branch, said the organization has two primary concerns with access to the database by law enforcement. The first refers to the law that created the prescription drug monitoring system and prohibited access by law enforcement.

“Our specific concern is that if we allow police to access this data without a warrant in a way the state promised six years ago would not happen, why would we ever trust the government when it says this information would be private,” he said.

He said the ACLU is also concerned that this type of data could be connected to things like electronic medical records and even global positioning satellites that could be used to track individuals or lead to further violations of privacy.

“There’s only one thing that protects us from the police getting this data, and that’s the Fourth Amendment,” he said.

Gilbert also claims police already have access to the system. They just need to get a warrant. The ACLU filed a public records request with multiple agencies to find out if there had ever been a request for a warrant to access the system. He said the ACLU has heard back from multiple agencies and has not heard of anyone trying to get one.

Flynn said he was unaware of anyone trying to get a warrant. He said the reason is the statute appears to prohibit access regardless.

Vermont Defender General Matthew Valerio said he could not comment on the specific merits of granting access to law enforcement because there is no bill. The idea of access, however, does raise eyebrows.

“A few years ago, when the current system went in, we expressed concerns,” Valerio said. “We don’t want people trolling these pharmacies, essentially. The issues are more ones of what kind of privacy and what type of intrusion do we want to have into the medical treatment people are getting?”

Valerio said a bill could be tailored in a way that is perfectly acceptable. He said some of the testimony that he has heard overstates the gateway aspect of pharmaceuticals leading to heroin addiction, however.

“This is kind of a typical PR campaign,” he said.

On Wednesday, an attorney with the New Jersey State Commission on Investigation told lawmakers that prescription drugs can lead to heroin addiction, and states should regulate the legal prescriptions that they have more authority over.

Sen. Dick Sears, D-Bennington, chairs the Senate Judiciary Committee, which heard testimony relating to prescription drug abuse the last two days.

Sears said he hopes that the testimony will help educate people about the dangers of prescription drug abuse.

“One of things they haven’t done is educate the public,” Sears said.

He said testimony Wednesday raised concerns about the level of addiction presented by prescription drugs.

“When a kid testifies that ‘at first blush I fell in love with these things,’ that’s a very high level of concern to me,” Sears said.

Barbara Cimaglio, deputy commissioner for alcohol and drug abuse programs for the Department of Health, is working with the House Committee on Human Services on legislation. Cimaglio assures that no increased access to the system could occur without legislative approval.

The Vermont Prescription Drug Abuse Workgroup produced a study on prescription drug abuse this year with recommendations to tackle the problem. These include increased education, monitoring, disposal of unused prescription drugs as well as law enforcement measures.

“We try to do continuing education, and I think that’s the best approach in a proactive prevention way leaving law enforcement out of it,” Cimaglio said.

Another bill in the House would require health care providers to report lost or stolen prescriptions to the Vermont Prescription Drug Monitoring System; one in the Senate would create a commission on rational treatment of chronic pain to develop training programs for health care and human services professionals who prescribe drugs.