Courts & Corrections

Shumlin pressures House conferees to allow police access to prescription drug info

Sen. Dick Sears, right, and Gov. Peter Shumlin. Photo by Taylor Dobbs
Sen. Dick Sears, right, and Gov. Peter Shumlin. Photo by Taylor Dobbs

The conference committee for a bill aimed at addressing what Gov. Peter Shumlin calls an “epidemic” of drug addiction made no progress today, with conferees locked in disagreement about law enforcement access to the Vermont prescription monitoring system (VPMS).

The Senate conferees got a boost this afternoon when Shumlin stepped into their corner, holding a press conference in which he sternly warned House conferees to adopt the Senate plan to allow law enforcement officials to get information from VPMS without a warrant.

“It’s a solvable problem,” Shumlin said. “It’s imperative that the House accept the Senate’s good work in ensuring that we give our four law enforcement officers in Vermont the ability to have the information they need when addicts are pharmacy shopping.”

Under the Senate proposal, four Vermont State Police officers tasked with special drug investigations would be allowed access to information from the VPMS database without a warrant by going through a hearing officer. The hearing officer would grant the requested information if there was “reasonable suspicion” of criminal activity.

“That’s what warrants are for,” countered Rep. Ann Pugh, D-Chittenden. The House argues that the prescription monitoring system, created in 2006 to “provide an electronic database and reporting system for electronic monitoring of prescriptions for Schedules II, III, and IV controlled substances” should not be used for law enforcement purposes.

The 2006 law states that law enforcement officers “shall not have access to VPMS except for information provided to the officer [by a medical official who suspects a doctor is breaking the law].”

Under current law, officers can go to a pharmacy and request records without a warrant, but the legislation regarding the database does not provide similar access.

Supporters of the Senate proposal say a warrant requires “probable cause,” a tougher standard for officers to meet. They say that bar is too high.

“Reasonable suspicion is a lower standard than probable cause,” said Allen Gilbert, executive director of the Vermont American Civil Liberties Union. “It offers less protection.”

Rep. Robert Lewis, R-Orleans, spoke at Shumlin’s afternoon press conference as a supporter of the bill and a 34-year law enforcement veteran.

“They do not realize the amount of work it takes to get the probable cause to get a search warrant,” he said. “I get the feeling from them they watch too much television, where you have a half-hour or an hour show and within that time period they get their search warrant, they get their DNA, they get the whole ball of wax. It takes a lot of work.”

Shumlin and the Senate hope to cut down on the weeks of effort it can take for officers to establish probable cause by reducing the standard, but Gilbert, Pugh and other opponents say doing so would be unconstitutional.

“We have a situation where the police have said ‘because we can’t meet the probable cause standard, we shouldn’t have to get a warrant,’” Gilbert said. “It makes the fourth amendment look like a laughable afterthought.”

Pugh looked to Article 11 of the Vermont Constitution, which protects against unwarranted search and seizure.

Both sides pulled from a 1992 lawsuit, State of Vermont v. Judy Welch, in which the Vermont Supreme Court supported warrantless access to pharmacy records. Sen. Richard Sears, D-Bennington, said such a ruling supported the Senate’s view. Pugh said the lawsuit predated the database and could not be applied to it.

As the conference committee met in the early evening, it was beginning to look as though they couldn’t agree on whether they even agreed.

Pugh noted that the bill, of which law enforcement access to VPMS is just a small part, was the result of work in both the House and the Senate, and it was worth further development.

“We have found agreement on all but one area,” she said, “and we have done as the House and the Senate incredible work in fighting the issue of prescription drug misuse and overdose and we treat this very seriously. We just don’t see the relationship between access without a warrant to a health care database.”

Sen. Kevin Mullin wasn’t so optimistic.

“We haven’t found common agreement on really attacking what is a pervasive epidemic in the state of Vermont,” he said. “I would hope that while we’re squabbling here that people aren’t enduring additional break-ins to their property, theft of their personal property to fund the purchase of drugs and I would hope that nobody has to die on the streets again because we’re not willing to do what is necessary to take the steps to reduce this problem in the state of Vermont.”

Pugh insisted that the House and Senate did, in fact, agree.

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  • Christian Noll

    Hey Gov Shum,

    Why don’t you take a pill yourself!

    To hell with the Constitution in Vermont.

    The Epidemic of police in Vermont reminds me of former BPD officer Paul Lawrence. If we can’t come up with probable cause lets just make it up.

    Vermont had 2,600 drug infractions in 2010 (VCOL). Over two thousand of them were Marijuana related, and only 300 were opiate related. Boy we’ve got a real “Epidemic” on our hands for sure.

    Better do away with those Bill of Rights anyway. This is “Post 9/11” and we’ve got a real “Epidemic” on our hands.

  • Christian Noll

    This issue is what really makes our local law enforcement look kind of stupid.

    Not only are they misinforming the public, but they are allowed to do so.

    The police already have way to many discretionary powers to their disposal and this would only destroy our rights to privacy.

    I liked the way Jim Candon uses the word “Addicts” in his previous posts. It tells me that even with all his years of “Experience” he is still clueless about addiction and how to treat it.

    As far as our Gov Shum goes, he reminds me of our president.

    Do your job.

    Get a warrant.

    Judges beware.

  • Barry Kade

    Why not pass the bill WITH the warrant requirement. If it doesn’t work, they can come back and amend it next year. At that time there will be actual data showing how much time and effort it took to get a warrant and whether in fact cases that should have been investigated were in fact stymied by the requirement for a warrant.
    When in doubt, go with the constitutional rights protecting our privacy.
    The attitude of some Senators, that if they can’t have it their way, there will be no bill, is rather juvenile.

  • Jim Candon

    Users of illegal street drugs such as marijuana and cocaine are many times recreational users.
    However, in my experience I never encountered a case of prescription fraud whereby the offender was a recreational drug user. They were all drug addicted.
    Dangerous drugs that have a legitimate medical purpse are legal. However, the manufacture, distribution and use of these drugs is highly regulated due to their potential for abuse. Warrantless inspections of the dangerous drug files ( schedule II-V) is part of the compliance process. In Vermont for nearly 50 years this inspection process by law has been the “duty” of the Department of Publis Safety and state’s attorneys.

  • The Nixon/Ford/Carter/Reagan/Bush/Clinton/Bush/Obama War on the American People (aka “the drug war”) continues. Who needs the 4th amendment when we got big police powers to abuse?

    4th amendment to the US Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

  • Luci Stephens

    I applaud the House representatives for sticking to their principles; I hope they make it clear to the administration and the Senate that they will continue to do so.

    Yes- we do have very serious problems with prescription drug abuse and related criminal behavior, and yes, we need to assure that law enforcement has the proper tools to attend to its part of this horrid puzzle.

    The Senate bill, however, is not the rational response to the actual problem. The bill impinges on constitutional rights and will likely create more healthcare privacy and provision problems (particularly as regards palliative care)for non-criminal Vermonters. Please – target the real problem and don’t create more victims…. enough, already.

  • G. Cross

    Barry has it right. Unfortunately, the Vermont Senate is used to having its way. Great to see the House standing up for the people of Vermont. Just pass the bill. If it does not do the job come back and amend it in the future. This is how legislation works.

  • Luci Stephens

    Relative to prescription drug abuse, I believe that the primary public safety problem is rampant criminal behavior fueled by drug-seeking (for use or sale)that has a direct negative impact on citizens- burglaries, robberies, assaults, thefts of property/ money, embezzlement, etc. The criminal justice system is pretty well-acquainted with this population. Many are already convicted and/ or charged with offenses known to be related to drug abuse.

    The Senate bill does not target that primary problem. It attempts to include the criminal problem in a bill that is constitutionally questionable and could impact healthcare delivery and provision.

    Legislation and law enforcement are generally not an effective way to protect people from themselves. I doubt that the Senate bill will stop overdose deaths and injuries amongst the non-criminal/ non-charged population. If, however, legislation targets persons already convicted of, and/ or charged with, offenses known to be related to prescription drug abuse, it might become effective, supportable law and policy and a reasonable resource for law enforcement.

    Concern was raised about the role medical professionals who abuse addictive substances play in this problem. A portion of a relevant bill might contain language that gives mandate, power and resources to the relevant professional board(s) to investigate (including appropriate, safeguarded access to the database) and intervene with such troubled professionals. If a professional found by the Board to be engaging in such abuse then fails to participate/ co-operate in an appropriate intervention, the outcome could be a referral of the Board’s findings to the CJS. Such interventions would remove those few troubled professionals from their role in the prescription drug abuse cycle.

  • Chilling. So people whose doctors prescribe medicine for chronic severe pain should have to worry about Big Brother?

    Shumlin, tsk tsk. I think you just lost a lot of voters.

  • Cindy Hill

    I have spent quite a few hours reading the statute and extensive regulations as well as HHS summaries and commentaries, and I can’t for the life of me see how allowing warrantless access to prescription drug information of persons suspected of a crime does not violate HIPAA. There are law enforcement exceptions for very narrow situations, including information about a victim, but not for general investigative purposes. For that you need a warrant. Here’s the relevant regulations for anyone who wants to read them.

    http://www.cmemsc.org/news/HIPAAregulations.pdf

  • Christian Noll

    Hey Gov Shum !

    Got a warrant ?

    No? Really?

    SEE YA !

  • Nicole LeBlanc

    Now Now guys Cut Shumlin some slack!!! Everyone needs to learn to give a little and stop bickering like they do in DC AND end they MY or the highway rhethoric!!!!! Thats not the wy to do business!!! We must lead for the greater good of America!!!

  • Jim Candon

    Good point Cindy Hill. The public health and safety issue of law enforcements role in regulating dangerous Rx drugs has run into HIPAA.
    I don’t know where the Secretary of HHS stands on this but she does have the authority to issue waivers from Washington.