After two weeks of discussion, the House Committee on Human Services approved a bill that would allow police indirect access to the Vermont Prescription Monitoring System through the Department of Health.
The bill marks a shift from the Shumlin administration’s proposal for direct access by specially-trained investigators.
Throughout the legislative session, committees have heard testimony on the dangers of prescription drug abuse and the privacy concerns involved with allowing law enforcement access to an online database where the state tracks the prescribing and dispensing of controlled substances.
The Department of Public Safety and Department of Health have proposed allowing special investigators access to the database based whenever there is a “bonafide” investigation.
But the local American Civil Liberties Union opposes the idea, calling it an invasion of personal privacy when the cops could get a warrant.
The House bill struck a balance, allowing access to the information by the special investigators with warrant in hand but requiring them to get the data from the Department of Health, rather than directly from the source.
Rep. Ann Pugh, D-S. Burlington, who chairs the committee, said she thought the bill struck a good balance between health and law enforcement concerns.
“There is a legitimate even health reason to be concerned about diversion [illegal use of prescription drugs], but it is our health record,” Pugh said. “They [law enforcement] have a legitimate use for it, but let’s have the barrier.”
She said having the safeguards of a warrant and indirect access through the Department of Health will create an adequate barrier.
Currently, police can access the system if the commissioner of the Department of Health offers information directly to the commissioner of the Department of Public Safety. The Vermont chapter of the ACLU says police could access it with a warrant, but they have never tried to do so.
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.
When the state launched the database in 2009, it included a provision in legislation that prohibited law enforcement access in the same way police can access pharmacy records in a physical pharmacy — by simply asking for them.
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.
Flynn said the court has already established there is no right to privacy under the state constitution for pharmacy records for Schedule II, III or IV controlled substances like OxyContin or Percocet.
“In that we already have clear precedent that says there is no right to privacy in those records, why would we now have to get a search warrant when the court’s already said there’s no right to privacy?” Flynn said.
Flynn said he hoped the committee would find a way to allow direct access, but as for indirect access through the Department of Health, he said, “we can live with it.”
The bill also requires patients picking up prescriptions to show photo identification verifying the pills are for them. Doctors and pharmacists will have to check the database when patients request replacement prescriptions also.
Some members, like Rep. Topper McFaun, pushed for access by local police officers rather than just the special investigators, but the committee ultimately agreed on only allowing specially-trained professionals to get the information.
Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said he thought the committee produced a good bill.
“I think what the Human Services Committee did was focus on this as a health issue and they looked at the Vermont Prescription Monitoring System as something that could address health needs of people who become addicted and misuse pr drugs,” he said. “I think by keeping that focus on health they made the right decision in number of areas about access to database.”
The ACLU has posited that police could already access the database with a warrant based on probable cause. This bill would make the warrant requirement a certainty.
The bill still needs to pass through the House Judiciary Committee before it goes to the House floor. That committee, Pugh said, could have a very different perspective on the law enforcement access issue.
