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

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15 Comments on "Prescription drug access bill sees compromise"

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Christian Noll
4 years 1 month ago
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… Read more »
4 years 1 month ago

Well put.

Jim Candon
4 years 1 month ago

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.

Christian Noll
4 years 1 month ago
“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… Read more »
Luci Stephens
4 years 1 month ago
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… Read more »
Christian Noll
4 years 1 month ago
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… Read more »
Jim Candon
4 years 1 month ago
“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… Read more »
Christian Noll
4 years 1 month ago
“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… Read more »
Jim Candon
4 years 1 month ago

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
4 years 1 month ago

why?

what does it have to do with this article?

Luci Stephens
4 years 1 month ago
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… Read more »
4 years 1 month ago

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
4 years 1 month ago

Bravo Luci, Bravo .

Luci Stephens
4 years 1 month ago
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… Read more »
Jim Candon
4 years 1 month ago

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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