ACLU blasts bill allowing prosecutors to raid digital medicine cabinets

By Andrew Staub | PA Independent

Legislation moving through the Pennsylvania Senate would allow prosecutors to rifle through prescription drug records as easily as police can search a student’s locker.

The proposal, Senate Bill 1180, would create an expanded prescription drug monitoring program and increase access for pharmacists and health-care practitioners who prescribe medication.

The American Civil Liberties Union of Pennsylvania doesn’t like it.

The biggest issue, the ACLU said, is the Senate Public Health and Welfare Committee amended the bill to allow prosecutors to seize the prescription drug records under the standard of reasonable suspicion, the same threshold that must be met to conduct searches in public schools or prisons, where residents have a lower expectation of privacy.

“One would reasonably believe that Pennsylvanians have a heightened expectation of privacy in their medication records,” Reggie Shuford, executive director of the ACLU of Pennsylvania, said in a statement. “This Senate committee clearly thinks otherwise. This vote implies that there are no barriers to the government collecting and observing a person’s prescription data, which is a window into their medical history.”

Originally, the bill required investigators to have a court-issued search warrant with the higher standard of probable cause for some — not all — records.

State Sen. Pat Vance, R-Cumberland, failed to return messages seeking comment, but a co-sponsorship memo indicates she introduced the bill to curb the practice of “doctor shopping,” in which patients obtain drugs from multiple doctors unaware about other prescriptions.

Doctors could see such information in advance while pharmacists could identify fraudulent prescriptions before they’re dispensed.

The attorney general’s office already has prescription drug monitoring program in which a private vendor collects dispensing data for Level II controlled substances. The program monitors drugs such as Adderol and Oxycontin, and law enforcement has access.

Vance’s legislation would expand data collection to include all drugs, including Level V controlled substances. That would cover anabolic steroids, hydrocodone-codeine and drugs such as Xanax. It would more closely align Pennsylvania with other state’s prescription drug monitoring programs, she said.

The bill would extend partial oversight and operation to the Department of Health. Vance’s memo painted the issue as a public-health matter, saying Pennsylvania is among the top 10 states for drug overdose rates per capita, with 15 per 100,000 people dying each year. Prescription drugs account for 75 percent of the those deaths.

All the while, Medicare, Medicaid and the criminal justice system bear the cost of the prescription drug abuse, Vance wrote.

The Pennsylvania Medical Society supports the legislation. Its president, Dr. Bruce MacLeod, wrote Vance, saying it would be a “huge help” for doctors to know if a patient recently filled a prescription with another physician.

“The ability to access a controlled substance database to help identify scammers is a reality for physicians in many states, but not in Pennsylvania,” MacLeod wrote. “Exacerbating the problem, scammers know that Pennsylvania is among the few states that don’t have a controlled substance database.”

Still, MacLeod noted “unresolved patient privacy concerns,” and that’s why the ACLU is up in arms, despite the contention the monitoring program would address a public-health issue.

Andy Hoover, ACLU of Pennsylvania’s legislative director, wrote a memo to the Senate saying the proposed legislation would “undermine the medical privacy rights of millions of Pennsylvanians by creating a prescription medication surveillance program.”

Police cannot search a person’s medicine cabinet or a doctor’s office without a search warrant to learn about a patient’s prescriptions, but they could retrieve the same information by accessing the database — albeit with a lower legal standard, Hoover said.

“Why should they be able to get into that without a search warrant?” asked Hoover, who cited a recent federal court ruling from Oregon that found it unconstitutional for law enforcement to seize prescription information without a search warrant and any standard below probable cause.

Hoover contends there are practical ramifications, too. Doctors could think twice about what they would prescribe for patients should they know law enforcement has easy access to the data, he said.

The ACLU also opposed another bill that cleared the House and would track controlled-substance prescriptions.

Even if only pharmacists and doctors had access to the information, Hoover still isn’t sure the drug monitoring program would be a good idea. The Senate could make a stand against over-zealous law enforcement and protect the privacy rights of Pennsylvanians, the vast majority of whom don’t abuse prescription drugs, Hoover said.

“In theory it makes sense from a public health perspective,” Hoover said of the program. “It just comes with so many privacy pitfalls that I don’t know if it can be done in a way that protects patients’ privacy.”

Andrew Staub is a reporter for PA Independent and can be reached at Andrew@PAIndependent.com. Follow @PAIndependent on Twitter for more.