It’s an epidemic.
Or perhaps it isn’t.
It’s killing Vermonters.
Probably, but nobody knows how many.
And it has several Vermont office-holders – starting with Gov. Peter Shumlin – in such a tizzy that they’re attacking one another.
Not that there’s anything new about politicians attacking one another. Republicans and Democrats do it all the time. But this spat does not pit Democrat Shumlin against his Republican opponent, Sen. Randy Brock of St. Albans. They’re on the same side. This is Democrats versus Democrats, basically Shumlin and the Senate against the House leadership.
Though the details are complex, the basics are simple: Some Vermonters are addicted to prescription drugs, and are getting them by illegal acquisition, theft, or various forms of chicanery.
By common consent, this is a serious problem, and the state has been dealing with it, both by expanding treatment through the Health Department and beefing up law enforcement.
In the recently concluded legislative session, lawmakers agreed on several provisions of a comprehensive bill that would make it more difficult for people to circumvent the security restrictions of the prescription drug system.
But on one item, they could not agree: whether the police should be allowed entry into the Vermont Prescription Monitoring System (VPMS), which records information on all prescriptions of Class 2, 3, and 4 drugs, without first getting a warrant.
The Senate wanted to give law enforcement that power. The House did not. The two sides could not reach agreement. The result? No bill at all, and one very angry governor.
“Those who didn’t pass the bill will regret it, and will be back next January perhaps more ready do the right thing.” Shumlin said in his last day remarks to the Senate. He added that prescription drug abuse was so “pervasive” in Vermont that probably no one in the state did not have a “family member, friend, neighbor” whose home, car, or business had not been “robbed by those who are addicted.”
A few days later, Shumlin was even harsher. Directly targeting “the House leadership,” (though not naming Speaker Shap Smith), Shumlin said, “The fact that the House didn’t agree with the Senate version of that bill, I think, is inexcusable. I think Vermonters will die because of it.”
The governor, said his spokesperson, Susan Allen, “feels strongly” about the matter.
When politicians feel strongly, they tend to speak hyperbolically. Actual data would indicate that in a state where burglary and most other crimes are on the decline, relatively few Vermonters have been impacted by prescription drug abuse, even with their friends, relatives and neighbors included.
Among the kinds of crime that are becoming less frequent is – as it happens – prescription drug abuse. According to the state Health Department, “the prevalence of prescription drug misuse in Vermont is declining or remaining steady for all drug categories.”
The Health Department’s latest figures, based on 2009 research by the federal government, indicates that 4.6 percent of adult Vermonters used prescription drugs improperly. That’s a small percentage, but it’s more than 23,000 people.
Or is it? When it comes to prescription drug abuse, opinions are firm but data are murky. That 4.6 percent figure, for instance, includes “people who have (improperly) used a prescription drug once as well as people who have a more serious problem,” said Barbara Cimaglio, the deputy commissioner for Drug and Alcohol Abuse Programs.
So the total includes the guy who hurt his back one day and used the prescription painkiller his wife got when she had her tooth pulled as well as the young tough breaking into a pharmacy to steal prescription drugs or into a home to steal money so he can buy the drugs on the black market.
And while the young tough is a danger to the people whose home he burgles, his situation is not really relevant to the controversy over whether the database should be searchable without a warrant. He’s not gaming the state’s prescription drug system. According to Public Safety Commissioner Keith Flynn, those street-corner purchases are probably (though here, too, the data don’t really prove the point) the way most Vermont prescription drug abusers get their goods. If that’s the case, the VPMS – and the squabble over warrants – applies to only a minor portion of the state’s drug abuse problem.
Cimaglio said many abusers in Vermont are otherwise law-abiding, respectable, usually middle-aged, people who grew dependant on pain-killers legally prescribed for them after injury or surgery. Some of them then do try to circumvent a system by getting friends or relatives to feign injury or illness so they can get painkillers prescribed, or by “doctor shopping,” trying to get duplicate prescriptions from several doctors.
These cases might show up on the VPMS database. On the other hand, these middle-aged people are probably not among those breaking into stores or houses. They may be among those buying drugs on the street corners, often from gang members who come to Vermont from southern New England or New York.
The data don’t really support – though they don’t conclusively refute – Shumlin’s prediction that “Vermonters will die” because the Legislature didn’t pass the bill. Vermonters do die from drug abuse. More than 100 died last year, but Public Safety Commissioner Keith Flynn said it was impossible to determine precisely how many died solely or even primarily from misuse of prescription drugs.
Of the 108 Vermonters who died of drug-related causes last year, 60 were accidents, said Flynn (citing figures from the Health Department’s Medical Examiner’s office), 18 involved “illicit substances,” though not necessarily prescription drugs.
The suggestion that there will be more such deaths without allowing police to get into the data base without a warrant would seem to lie on the spectrum somewhere between conjecture and demagoguery.
By squabbling over the warrant issue, officials convey the impression that they believe the drug problem to be solvable by law enforcement. They do not.
“We can’t fix this problem through arresting people,” said Rep. Ann Pugh, the South Burlington Democrat who chairs the House Human Services Committee. “This is a public health issue. People need treatment.”
Sen. Dick Sears, the North Bennington Democrat who chairs the Senate Judiciary Committee and favors the warrantless searches as firmly as Pugh opposes them, agrees. A bill he sponsored this year, which did pass, provides for both stricter enforcement of gang-related prescription drug offenses and more treatment of addicts.
But both sides also agree that tighter law enforcement is needed, and even that police should be able to check the VPMS. They only disagree about whether law enforcement officers should first have to get a warrant.
“A lot of time the information we get from medical providers will not be in and of itself evidence of a crime,” Flynn said, and therefore would not justify getting a warrant. “Many times if we get a report (saying) this person … seems to be using abnormal amount of this drug.” If police could get into the system at that point, he said, they might be able to help the addict before he or she gets into worse legal trouble.
Sears, upset that some critics claimed that the Senate bill would allow “unfettered access” to the VPMS, said the Senate bill would provide “more protection for privacy” than a warrant requirement. Under the Senate bill, he said, “just four specially trained drug investigators” could get access to the database, and only after getting a tip from a druggist or health care provider. They would be liable for criminal prosecution if they broke those rules, he said.
But this was not enough protection for House leaders such as Pugh and Judiciary Committee Chair William Lippert of Hinesburg.
“Warrants are regularly applied for by law enforcement when they want to pierce the search and seizure protections” of the Constitution, he said. “We believe private, personal medical records are an extension of the privacy expectations of Vermonters.”
Furthermore, Lippert said, his committee had been warned that a warrantless search would immediately be challenged in court on constitutional grounds.
If precedent is any guide, that challenge would likely fail. Since 1904, Flynn said, Vermont law has allowed any law enforcement officer to walk into any drug store and see anyone’s prescription file, without a warrant, without even having to give the druggist a reason. When that law was challenged, in 1992, the challenge failed, if only by a 3-2 vote.
In State versus Welch, the Vermont Supreme Court agreed with the U.S. Supreme Court that the prescription drug industry was so “pervasively regulated” that neither druggists nor customers had any “expectation of privacy.”
As Lippert pointed out, that decision predates development of the drug database as well as congressional passage in 1996 of the Health Insurance Portability and Accountability Act (HIPPA) designed to enhance patient privacy. It is hard to predict whether the court would issue the same ruling today, or whether the Legislature would vote today to give law enforcement that power to see everyone’s drug records. Though no one has taken a poll, it is reasonable to suspect that most Vermonters think they have – or at least that they should have – an “expectation of privacy” about records that the court acknowledged “contain extremely private and potentially embarrassing information.”
This battle is likely to be resumed next year, if not earlier, with all contestants remaking all points.
With one point continuing not to be made. Both Sears and Flynn said outside gang members who peddle prescription drugs are attracted to Vermont for two reasons: because there are potential customers here, and because it’s very easy to get guns in Vermont.
Raising an interesting question: Would moderate gun control laws similar to those in neighboring states be as effective in combating prescription drug abuse as allowing police to get into the VMPS without a warrant?
Don’t expect any elected official to bring that up.
