Drug-monitoring program a prescription for privacy loss, ACLU argues

By Andrew Staub | PA Independent

Law enforcement is about to get a good look inside Pennsylvanians’ medicine cabinets.

State lawmakers are on the verge of establishing an expanded prescription monitoring program that would allow law enforcement to obtain sensitive medical information without a search warrant. Doctors and pharmacists also would have access.

Proponents of the legislation enacting the program contend it would be a valuable public-health tool to crack down on doctor shopping in a state with the nation’s 14th-highest drug overdose mortality rate. Critics fire back that it’s another governmental invasion of privacy.

Andy Hoover, legislative director for the American Civil Liberties Union of Pennsylvania, has said that even the name of the program — dubbed the Achieving Better Care By Monitoring All Prescriptions Program — is “Orwellian” in title.

“With more eyes on the data and with easy law enforcement access, there is increased risk that innocent people who genuinely need medication will be harmed, either by hesitant doctors and pharmacists or, worst-case scenario, by overzealous prosecutors,” Hoover said. “Patients may also forego helpful treatment to avoid the scrutiny.”

State Sen. Pat Vance, R-Cumberland, the prime sponsor of the legislation, said the program is not meant to be punitive, nor is it a revolutionary idea. More than 30 states have drug monitoring programs, she said.

“Sometimes when patients get hooked on prescription drugs, inadvertently they then turn to heroin because it’s cheaper, and we’re trying to the patient not get to that point,” Vance said.

The program intends to clamp down on so-called “doctor shoppers” who try to obtain prescription drugs from multiple physicians.

The state Senate has already passed the legislation. The House could vote on it as early as Tuesday, but it would have to return to the Senate for concurrence because of changes to the bill.

The Pennsylvania Medical Society wants to see the strongest possible bill pass, spokesman Charles Moran said.

Physicians across the state have reported doctor shopping is “getting out of control,” Moran said. He relayed the story of an emergency room doctor who encountered a patient claiming to have forgotten pain medication at home while traveling, then saw the same person using the same story to try to score prescription drugs at another hospital the next day.

Now, doctors can only stop someone if they know they’re aware they’re “playing games,” Moran said. Access to more data would help in the fight against prescription drug abuse, he said.

“It’s a win-win situation for everybody if physicians at least have access to that information,” Moran said.

Under Vance’s bill, dispensers and pharmacists would enter prescription information into a database. Doctors would only have to query the system the first time they prescribe a controlled substance to a patient or if they have reason to believe somebody is abusing a drug.

Pennsylvania monitors Schedule II drugs, which include medication such as Oxycontin, Adderall and Ritalin, and are considered to have a high potential for abuse. The prescription monitoring program is housed in the Attorney General’s Office, and only law enforcement officials have access.

Pennsylvania is the only state that doesn’t allow dispensers and prescribers access to the program, said Heather Gray, legislative director of the National Alliance for Model State Drug Laws. Vance’s legislation would make the Keystone State’s program more comparable to others, Gray said.

Vance’s legislation also moves the program under the state Department of Health, “making it less a law enforcement tool and more a public health tool, in theory anyway,” Gray said.

The program would also cast a wider net should Vance’s legislation make its way into law. It calls for the monitoring of Schedule II through Schedule V drugs, which would rope in medications such as Vicodin and Xanax. The lower the schedule number, the higher the potential for abuse.

Schedule V drugs medication and have a low risk for abuse and dependence but would still be monitored under Vance’s legislation. Most states keep information on Schedule II through IV, Gray said.

State Rep. Tim Krieger, R-Westmoreland, said lawmakers could strike a balance between public health and privacy by exempting Schedule V drugs, which include some anti-diarrheal medications and some cough suppressants.

“If your kids get Robitussin with codeine, they will be in this database,” he said.

Krieger’s attempt to amend the bill last week failed, as the desire to track anything that could be a gateway drug to more dangerous narcotics won out. Many lawmakers represent districts facing a heroin crisis, and a report from The Center for Rural Pennsylvania last month found the drug can be cheaper than a six-pack of beer.

State Rep. Bryan Barbin, R-Cambria, said his district is dealing with a heroin epidemic.

“If law enforcement says they need Schedule V, we should give it to them,” Barbin said.

The ACLU, though, contends prevention and treatment are the most effective ways to deal with substance abuse and has argued medical information shouldn’t just be handed over to prosecutors.

Current law requires prosecutors to obtain a search warrant based on probable cause to sear prescriptions records, but Vance’s legislation would allow access with just reasonable suspicion, “a flimsy standard not found in the constitution that is used to justify traffic stops and other minimally intrusive searches when a person has less expectation of privacy,” the ACLU wrote in a letter to lawmakers.

While the issue of whether a search warrant is needed to access such information is at the center of a separate federal case in Oregon, Gray said there isn’t a constitutional issue at play because prescription information is shared frequently with third parties, such as other pharmacies and insurance companies. That diminishes the expectation of privacy, she said.

“I think if you go by past case law, there is no Fourth Amendment issue here,” Gray said.

Vance is comfortable with her legislation in terms of privacy, pointing to the requirement there must be reasonable suspicion of criminal activity related to an active investigation for law enforcement to gain access to the prescription monitoring program.

The bill also would not allow law enforcement to use information from the database at trial, another key point for Vance when it comes to her mission to help stop drug abuse.

“I’m very comfortable with it,” she said. “If, in fact, you’re engaged in illegal activities, perhaps your privacy should be invaded.”

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