A drug trafficking investigation involving a Utah physician has privacy implications that could affect access to prescription drug record databases across the country.
The Drug Enforcement Administration believes a Utah physician may have ties to an international drug cartel, and it wants access to the state's prescription drug monitoring program to continue its investigation. But Utah is one of a few states that require law enforcement agents to obtain a warrant before they scour prescription drug records in the database, and the DEA is refusing to play ball.
The federal agency has sued the state to gain access to the PDMP with an administrative subpoena, maintaining its federal authority trumps the state law.
The Utah federal judge over the case is only the second federal judge to weigh individuals' right to keep their prescription drug records private alongside law enforcement's need to access the information to curb fraud, abuse and crime.
In March 2014, another federal judge in Oregon ruled that the DEA could not access Oregon's PDMP without a warrant, as required by the state. The Oregon case is pending appeal.
Utah's PDMP had over 47 million records for controlled substances prescriptions as of September 2012, according to the American Civil Liberties Union, which has requested to intervene in the case and claims the DEA's request could lead to real privacy concerns for anyone whose information is in the database.
The ACLU contends that by learning the drug name and dosage for an individual, law enforcement could determine that someone is being treated for a mental health condition, AIDS or is undergoing gender transformation with hormone replacement therapy.
“These are deeply private and sensitive facts that can be embarrassing or stigmatizing if revealed to other people without consent,” the ACLU said in its motion to intervene.
PDMPs have been touted lately as a potential way to curb the overprescribing of opioids that led to the current spike in overdoses and abuse. The goal is to have prescribers check the databases to see if their patients have doctor shopped, or sought opioid prescriptions from several providers.
Utah paramedics and firefighters have already dealt with privacy breaches stemming from PDMP access, which led the state Legislature to place greater protections on the information in 2015.
“I think the DEA's position is what it is because they don't want to have to go through the effort of creating an evidentiary basis” to access the database, said Rebecca Skordas of Skordas Caston & Hyde, an attorney who represented one of the paramedics whose privacy was breached by PDMP access.
In the case Skordas worked on, a few employees of the Unified Fire Authority in Salt Lake County were charged with prescription drug fraud after a law enforcement officer scoured their state prescription drug records during an investigation into stolen morphine from a fire department vehicle.
Skordas' client hadn't even worked at the stations under investigation, but law enforcement reviewed prescription records of all 480 employees of the fire authority and charged a few suspected of doctor shopping for opiates.
Skordas and the ACLU argued that her client's charge was the result of an unlawful search and the database information should be suppressed. Although a Utah judge rejected their request and they appealed that decision, the charges were later dropped.
Although most states require law enforcement to only have an active investigation in order to access PDMP records, personal privacy concerns have been cited in state lawsuits over these databases, and Missouri has refused to create a PDMP in part because of the issue, said Heather Gray, a senior legislative attorney at the National Alliance for Model State Drug Laws.
