Prescription drug access bill sees compromise

Dick Sears

Sen. Dick Sears, chair of the Senate Committee on Judiciary, says his committee has reached a compromise with the governor that would allow police to access information from health care providers that would help them track prescription drug abuse. VTD/Alan Panebaker

The Senate Committee on Judiciary is poised to vote on a compromise struck with Gov. Peter Shumlin that would allow police access to more information about abuse of prescription drugs without letting them peek into an online prescription monitoring system.

The proposal carries a rider that would decriminalize possession of an ounce or less of marijuana.

Sen. Dick Sears, who chairs the committee, said he hoped the compromise would quell some concerns that an earlier proposal by the Shumlin administration would allow unfettered access to the Vermont Prescription Monitoring System, which contains personal information about prescribed drugs.

“My idea was to find a way to deal with this that still protects the interests raised as concerns,” Sears said.

Under an initial proposal from the Shumlin administration, a few specially trained officers would be allowed access to the database if they could demonstrate a bona fide investigation.

The administration’s proposal was watered down in the House, which only approved access to the information in the database when officers had a warrant. They would also need to get the information from the Department of Health rather than directly from the database.

With the compromise, police would be able to access the name, age and address of a patient who they believe may be diverting prescription drugs for illegal use. Police could also receive access to the name and address of the pharmacy and doctors where the patient accessed certain scheduled drugs — generally opiates.

Using this information, the officers could then go to the actual pharmacies and ask for prescription information under a law that was passed in 1968.

The investigation would have to start from a tip from a health care provider.

Sears said a proposal will also require the head of the Department of Public Safety to develop guidelines for all law enforcement officers to use in exercising their authority to access the information.

He said law enforcement’s desire to access to the information in the database is reasonable.

“We have an epidemic,” he said.

While police can access private pharmacy records by simply going to the pharmacy, they have claimed in testimony that the process is onerous, and often people who are abusing drugs visit pharmacies all over the state.

The proposal, Sears said, would streamline the process without allowing expanded access.

“We’re not providing any more information than would be available through an extensive investigation requiring them to go to every pharmacy in Windham Country, for example,” he said.

Sears said his committee is generally in agreement on their proposal, which they will vote on Thursday morning.

But the other group of lawmakers hearing testimony on the bill are more skeptical.

The Senate Committee on Health and Welfare brought in two judges to testify Wednesday morning on the requirements for police to obtain a search warrant.

“We have reservations about allowing access to private records on a hunch,” said Sen. Claire Ayer, the committee chair.

The underlying bill is currently in the Health Care committee, and the administration’s proposal would have to be attached as an amendment to that bill.

The law enforcement access issue has caused tension throughout the legislative session. Law enforcement and the Shumlin administration have focused on the widespread prescription drug abuse problem in the state, while the local American Civil Liberties Union has argued the access would violate the Fourth Amendment protections against unreasonable searches and seizures.

Keith Flynn, commissioner of the Department of Public Safety, said his department could live with the compromise struck by the administration and the Judiciary committee.

“It will allow us to do what the objective is and that is to stop the flow of opiates that are being diverted by people who have an addiction,” he said.

Allen Gilbert, executive director of the local ACLU, said allowing the proposed type of access would open the door for more attempts to get personal digital information.

He said law enforcement should get a warrant instead.

“If you have a tip from a doctor or pharmacist, the chance is good you could get a warrant,” he said. “I don’t understand the reluctance on part of law enforcement to use a mechanism that’s been in place for over 200 years to protect privacy.”

The bill will likely see debate on both the marijuana decriminalization issue and drug database access issue on the Senate floor. The provisions of the bill could potentially be split apart. Some senators support marijuana decriminalization but oppose police access to the drug database and vice versa.

Ayer said her committee appears to be split on the issue. Sens. Kevin Mullin and John Campbell appear to support access to the database, but the other three members on the committee are more leery, she said.

“We’re reluctant to open personal medical records to public scrutiny when we set them up with the idea that that would never be the case,” Ayer said.

When the Legislature passed a law creating the drug database in 2005, it explicitly stated that law enforcement officers would not have access to the system.

Alan Panebaker

Comments

  1. Christian Noll :

    Here’s a “Tip” for the Vermont Legislature.

    Police are not obliged to protect your “Federally protected healthcare information.” Think about that for a minute.

    In fact, they’ll spread false, damming and highly misleading information all around if they feel they can get away with it and if they have a motive to do so.

    If the police could deny you critical medical attention in a life and death situation, and they had strong motive to do so, they’d do it. Even if they didn’t have a motive, they’d still do it. Look at the Levi Duclos case.

    Do you know why HIPPA exists? The Healthcare Information Privacy Proction ACT (HIPPA) exists because there are so many “epidemics” that you have no privacy anymore.

    Don’t you think we had healthcare privacy laws before HIPPA? Every 10-30 years we’ll have to keep reinventing new laws and new initiatives because of some “War on Terror” or “War on drugs.”

    Keep your “Wars” to yourselves please.

    Your jobs as legislatures are to HELP keep the peace. In this case the Police are definately not here to do that.

    I think the next time a police officer gets critically injured on or off the job, the acting physician should withhold any opiate pain medication. Or if prescribed, place the injured officer under “Investigation.”

    Bye Bye 4th Amendement.

    The “epidemic” here is sponsored, promoted and marketed by the police themselves.

    Shame on you people.

  2. Jim Candon :

    Prescriptions in a pharmacy are not private medical records; they are pharmacy records.

    Controlled drug prescriptions have always been open to inspection under federal and state law because they have such a high potential for abuse.

    Vermont’s current opiate drug problem is ,in large part, due to lack of sufficient oversite to the prescribing, administering and dispensing of these drugs.

  3. Christian Noll :

    “Prescriptions in a pharmacy are not private medical record: they are pharmacy record.”

    I bet there are half a dozen independant pharmacies in Vermont that would disagree with you guaranteeing confidentiality reguardless. “Private” doesn’t mean accessable to “investigating police” either!

    “Controlled drug prescriptions have always been open to inspection under federal and state law because they have such a high potential for abuse.”

    So what’s the problem? Keep them under “inspection.” Keep the police out of it.

    “Vermont’s current opiate drug problem is ,in large part, due to lack of sufficient ‘oversite’ to the prescribing, administering and despensing of these drugs.”

    Do you know Mr. Candon, I’ve experienced a 2 part LaFort and a Mandipular Sagital split with 24 titainium screws in my face, and the follow up surgen was a total ass with my pain medication because of guys like you.

    I only needed pain medication for two or maybe three weeks and he was a dick about it because of fear mongering police and ill-informed individuals such as yourself.

    Vermonter’s beware. Police will not stop drugs.

  4. Luci Stephens :

    Mr. Candon’s remark about prescriptions in a pharmacy not being private medical records strikes me as somewhat astonishing. Prescriptions are patient health care information generated by the patient’s healthcare provider and shared with the pharmacy ONLY with the patient’s consent; at no point did the patient waive confidentiality of those records except for the specific purposes of filling the prescription and any insurance reimbursement. The federal and state laws that permit certain ‘inspections’ do exist, but have not (I believe) been subject to any rigorous court scrutiny. I’m not convinced they would ultimately pass those tests under the VT or Federal constitutions. HIPPA is based ultimately in Constitutional/ Bill of Rights protections.

    Investigating agencies who have legitimate cause can and do get warrants. Searches that cannot met the relatively easy (if you have done your homework) bar set for obtaining a warrant are a hunting expedition. The climate of fear surrounding the abuse of prescription drugs, especially diversion, while it has basis and merit, also has a lot of political capital potential. These are all good reasons NOT to give in to the hue and cry. These are usually good, competent, experienced investigators; they can get a warrant when it’s needed.

    • Christian Noll :

      Luci, well put.

      “Investigating agencies who have legitimate cause can and do get warrants.”

      True.

      That “Legitimate cause” is know as “Probable Cause” within the context of the 4th Amendment and the police are “Tired” so to speak, with having to come up with it.

      Quite often probable cause isn’t so probable.

      We had healthcare information protections before HIPPA. What do you think happened to those laws? The same thing that’s happening now, in that they are being threatened.

      I think all “Investigators” involved in drugs should themselves be put on watch. Police even go after their own officers if they can, in sting operations. They are so desparate to arrest people in an effort to look like they’re doing their job that they end up not doing it.

      Police have been known (recently) to even fabricate or exaggerate “evidence” as to sway judges. Its kind of sad for the many good honest officers to be so mislead.

      “These are usually good, competent, experienced investigators; they can get a warrant when it’s needed.”

      But if they don’t need to get a warrant, then they don’t need “good, competent, experenced investigators.” They wouldn’t need to get Probable Cause either.

  5. Jim Candon :

    “Controlled or regulated” prescription drugs does not include all prescription drugs. They’re drugs like OxyContin that have a potential for abuse and have e resale value on the street.
    Even though these drugs have potential for abuse, they are legal as long as they are tightly controlled or regulated and have a legitimate medical purpose. Thus the manufacture, distribution prescribing, administering and dispensing of these drugs are to be tightly controlled.
    Though some are surprised to learn this, these rules, laws and regulations have been in affect at the state and federal level for close to 50 years.
    Vermont currently has an opiate epedimic and a single tab of OxyContin 80 sells on the street for $80 each.

    • Christian Noll :

      “Though some are suprised to learn this, these rules, laws and regulations have been in affect at the state and federal level for close to 50 years.”

      Emm, thanks Mr. Candon.

      I’d venture that most of us here, the author, editors and commenters are not “surprised to learn this.” I think most participants of this forum understand that it was Nixon who created the DEA. 1972 I believe so make it 40 years not “50.”

      “Vermont currently has an opiate epedimic and a single tab of OxyContin 80 sells on the street for $80 each.”

      “Currently?”

      With all due respect Mr. Candon,

      I will humbly interject. “OxyContin” has always sold for $1 per milligram. Its my understanding that since its “not commercially produced anymore,” (BPD M. Schriling) the 80 milligram pills (Not “tabs”) can sell for MORE than “$80 each.” Now THATS currently.

      Stick to what you know. Blindly supporting a police endevor which so dramatically threatens our Civil Rights is dishonorable and not acting within the best interests of the general public, regardless of your “epedimics.”

      Despite its good intentions, The Long Arm of the Law has over extended itself more than once in these modern times.

      This represents a serious encroachment to our rights as private, peaceful tax payers and should be thwarted with extreme prejudice.

      Get a warrent. Judges beware.

  6. Jim Candon :

    http://libraries.vermont.gov/sites/libraries/files/supct/160/op90-392.txt

    Go to the above link to see this Vermont Supreme Court ruling on regulated Rx drugs. It is State v. Welch in 1990.

    • Christian Noll :

      why?

      what does it have to do with this article?

  7. Luci Stephens :

    The Welch case was before the Supreme Court as an appeal of a conviction related to obtaining prescriptions for regulated drugs. Defendant argued that the information obtained by investigators from area pharmacies was a ‘warrantless search’. Defendant further argued rights of privacy of healthcare information. The Court upheld the conviction based on a finding that the defendant did not have an expectation of privacy of relevant pharmacy records under VT and federal law of the time. The Court appears to have based its decision on a construct that relies on prescriptions becoming the property (possessions) of a business (a pharmacy)If the business voluntarily allows a search of its possessions, the fruits of that search are allowed testimony in a criminal matter.

    It is my belief that HIPPA has significantly changed that construct, and that any Court would be forced to consider that any prescription, regardless of what it is for, is protected healthcare information. The Court would then have to weigh the balance between public good and individual rights, which is a primary basis of a warrant decision. If warrantless searches of pharmacies were as easy to conduct today as they were when this case was under investigation, law enforcement would probably not be asking the Legislature for the power to conduct them.

    Here’s a rather different train of thought …. Prescription drug abuse in VT is, I believe (based largely on my professional experience) an epidemic. We see many of the symptoms of that epidemic present themselves as criminal acts and issues of public safety/ public order. I cannot, however, think of any time in human history when mankind was successful in dealing with epidemics by expecting that law enforcement and the criminal justice system could single-handedly stem that epidemic.

    This epidemic is a public health and safety crisis. Let’s recognize it and start from there, i.e. let’s treat it as the epidemic it really is. There are problems with prescription practices, there are problems with prescription diversion, there are problems with access, problems with addiction, problems with the social situations that foster abuse, etc.

    Using a unilateral tactic of investigative power that violates individual rights without due process and that creates problems for the healthcare provider/ patient relationship while avoiding the multiple other systemic issues is not the answer. There are many answers and many responsible people. For instance, there are medical providers and other responsible persons who have specific knowledge of practitioners whose prescription practices re: regulated drugs are inappropriate. These practitioners should be reported to the appropriate governing board, such as the medical board. These boards have to investigate. It’s not comfortable, and it’s challenging and complex, but responding to and coping with this epidemic is a shared responsibility.

    • I’m really curious about this “epidemic” claim regarding prescription drug abuse … how does one define this as an “epidemic” and what numbers does one have to support that definition?

    • Christian Noll :

      Bravo Luci, Bravo .

  8. Luci Stephens :

    Excellent point, Rama. I come come from a professional experience of seeing great numbers (about 1 in 6 to 8 as I recall, so higher than one would expect in a general population) of regulated drug abusers, but it is a specific, legally-defined population segment not representative of a general population. The symptoms of their disease affect others and they can infect others. So, their disease incidence meets a few of the tests of the word ‘epidemic’, but not all. Language has great power to invoke emotions and reactions, and we humans tend to look for easy, short, attention-getting ways to define things that matter to us. That is probably more the etiology of using the word ‘epidemic’ to describe our prescription drug abuse problem than it is an accurate description of the incidence in the general VT population. A realistic estimate of the number of regulated prescription drug abusers in VT might be gained from a compilation of VT Health Dept and VT CJS statistics, likely with input from professional regulatory boards, the VT Ed Dep’t. and State and private higher education institutions, and probably some other sources.

    p.s. I think that the proposed compromise bill coming out of the Sears committee is more reasonable/ safer than the original proposal, but I remain convinced of the need for a warrant to assure due process in investigative searches in cases of suspected abuse of regulated prescription drugs. When we give up checks and balances in relation to any of our individual and collective rights, we put ourselves and future generations at risk of incursion into and erosion of those rights.

  9. Jim Candon :

    Luci in an earlier post suggested that there had not been any ” rigorous court scrutiny” to pharmacy inspections. So I provided a link to just such a case at the Vermont Supreme Court.
    In my career I had lots of experience with prescription drug addicts and prescription drug addiction and the awful affects it has on individuals, families, crime victims, industry and taxpayers.
    I don’t think anyone pretends or has said that law enforcement or the criminal justice system can single- handily stem the epedimic of prescription drug abuse. That would be silly and untrue.

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