Health department, police seek law enforcement access to drug database

Vermont Department of Health Commissioner Harry Chen proposes allowing law enforcement investigators access to the Vermont Prescription Monitoring System. VTD/Alan Panebaker

Law enforcement agencies pushed a House committee to include language in a bill Friday that would allow investigators access to personal information in a database that monitors prescription drug activity.

Rep. Ann Pugh introduced a bill that would require doctors to search the Vermont Prescription Monitoring System before prescribing certain drugs.

Pugh’s bill also expands the categories of people who have access to the database.

The Vermont Department of Health, the Department of Public Safety and state police pushed to expand the access to trained law enforcement officers.

Advocates for the increased access have offered extensive testimony on the dangers of prescription drugs.

Dr. Harry Chen, commissioner of the Vermont Department of Health, proposed an amendment that would allow police access based on a “bona fide specific investigation.”

Currently, police can only access the system through the commissioner of the Department of Health personally offering information to the commissioner of the Department of Public Safety. In theory, police could access it with a warrant but have never tried to do so.

Chen said there are sufficient safeguards in the department’s proposal to prevent a “fishing” expedition by law enforcement officers.

“It only allows access for an appropriate reason whether it be a real patient, a bona fide investigation or an actual prescription,” Chen said.

Capt. Glen Hall of the Vermont State Police oversees the special investigation unit that would have access to the database. Hall said there are currently three officers who have the training to gain access.

Hall offered statutory language that would allow access based on an “active investigation,” meaning a “good faith belief that it could lead to the filing of criminal proceedings.”

Hall said the state should not put all the responsibility on doctors to detect prescription drug abuse in the system.

“I don’t know if it’s realistic to have doctors check every time, I don’t know if that’s the answer,” he said. “We can’t expect doctors to be the ones to catch those abusing the system.“

But the Vermont chapter of the American Civil Liberties Union has expressed concerns that the extensive access for law enforcement officers is too much.

Allen Gilbert, the organization’s executive director, said police do have access to the database but they need a warrant based on probable cause, rather than the standards like “active investigation” and “bona fide specific investigation” which have not been clarified through court cases like the standards for obtaining a warrant have.

The ACLU filed a public records request to determine if police had ever asked for a warrant to access the database and found they had not.

When the state created the Vermont Prescription Monitoring System, it included language in the law explaining that police would not have the same access to the system as they do for physical pharmacies. Police can enter a pharmacy and ask for pharmacy records because it is a specially regulated industry.

Aside from never requesting a warrant, Gilbert said, requesting access now is a show of law enforcement not keeping its word.

“This isn’t about prescription drugs, this is about the government collecting data and promising the information will be kept private and when the government promises to protect our private information in an area as sensitive as medical information, I think it’s reasonable that citizens should be able to trust that government will keep its word,” Gilbert said.

Pugh, who chairs the House Committee on Human Services, pushed Hall on the warrant issue, and he said the police have not asked for a warrant to access the database.

Hall said many other states with prescription drug monitoring systems allow police access. He said the records are not medical records but rather records of specific scheduled drugs.

“There are concerns that our interest is to go on the the system to fish for prescription records,” Hall said. “This would only be requests for active investigations. Any time we would request information the case number specific to the investigation would be associated with the report or other documents. It would be specifically linked to the case number so it could be referred back to if needed.”

Pugh said her committee will vote on the bill before Town Meeting Day.