Lawyer wants drug evidence tossed in swim coach case
Doesn’t CVS’ Pharmacists understand that HIPAA protected PRIVATE HEALTH INFORMATION cannot be released to anyone without the pt’s consent and/or court order ? Don’t they know that if you lie to the police.. they can throw your ass in jail …but.. they can lie to you without any consequences ?
NORTH ANDOVER — The lawyer for a former North Andover High swim coach accused of giving a student athlete OxyContin and Valium wants some of the evidence in the case thrown out.
Melinda Thompson, the lawyer for Elizabeth Backler, 28, of Newburyport, said a hearing on her motion was held Wednesday in Lawrence District Court and a ruling is pending.
On Feb. 26, Thompson filed a memorandum to the motion to suppress evidence in the case against Backler, who was arrested in September 2015 after investigators alleged she had engaged in an “inappropriate” relationship with a former student-athlete while serving as a coach for the North Andover High swim team.
She was arrested and charged with three counts of distribution of prescription narcotics and was released on personal recognizance.
As part of the investigation, North Andover police checked the prescription history for Backler with a local CVS and found records that she was prescribed both diazepam, the generic name for Valium, and oxycodone. The brand name for oxycodone is OxyContin.
But Thompson had previously argued Backler’s prescriptions and medical history should be thrown out because police did not have the proper warrant to obtain the information from CVS.
In the memorandum, Thompson said the initial motion to suppress had been filed on Dec. 15, 2015. But the day before the scheduled hearing on the motion, the District Attorney’s Office provided the defense a police report dated Jan. 28, 2016, with new information regarding the seizure of evidence.
The memorandum stated the new police report had information from North Andover Police Detective Sean Daley, who described his involvement in the case. In the report, Daley explained he was assigned to the U.S. Drug Enforcement Administration as a task force officer with the Worcester Tactical Diversion Squad.
According to the police report, Daley was unable to access the Prescription Monitoring Database to determine whether Backler had prescriptions for oxycontin or a muscle relaxer. He called DEA Diversion Investigator Lisa Fernandes, who was unable to determine whether Backler had any such prescriptions, but did determine Backler had filled some type of prescription at a CVS.
With this information, Daley went to the CVS with North Andover Police officer Michael Reardon on Sept. 3, 2015. According to the report, Daley identified himself as a DEA task force officer and provided his credentials to the pharmacist.
“As a result, Detective Daley obtained Ms. Backler’s prescription information and medical information without an administrative or criminal search warrant,” Thompson said in the memorandum.
But Thompson said that in previous police reports, Daley never referenced “federal law enforcement, search warrants or any federal law enforcement involvement whatsoever,” a violation of both Massachusetts and federal law.
Under Massachusetts law, local or state police cannot employ a federal official to obtain evidence if they are conducting an investigation, according to Thompson.
Thompson also argued the prosecution could not justify the CVS search as administrative since a police detective and a detective acting as a DEA agent cannot conduct an administrative search “in which they demand the medical records of one patient during the investigation of a criminal case.”
Thompson also dismissed the prosecution’s argument that the CVS search was valid due to the state’s prescription monitoring program (PMP), since the DEA was unable to find any information about Backler’s medical history from the program.
“If the police had walked into every pharmacy in North Andover and discovered Ms. Backler had filled prescriptions at CVS, and then seized those prescriptions without warrant, this case would be in the exact same posture,” Thompson said. “A warrantless search and seizure of medical records.”
Judge Kevin Gaffney presided over the hearing Wednesday and asked both sides to return to court on April 26 for a status update, according to Carrie Kimball Monahan, spokeswoman for Essex District Attorney Jonathan Blodgett.
Filed under: General Problems
Tracey, you wrote, “So many do not realize how dangerous this slippery slope that our dictators are forcing our country to go down is.” I disagree. I believe that “many” see what is going on, but too many are predicting the future. This is not a slam to you by any means, but a trust in our fellow citizens. At least on about half of the voting population 🙂
IMO this is not just a huge violation of HIPAA, but it’s a huge violation of this lady’s 4th amendment rights to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But then it doesn’t surprise me one bit as our DEA and its agents have been violating many citizens’ rights since they began.
We are watching the “Land of the Free” become an Orwellian Society, as Big Brother continues to grow more powerful each day, violating the rights that we were born with. So many do not realize how dangerous this slippery slope that our dictators are forcing our country to go down is. Give them an inch and they’ll take a mile.
I hope the judge throws this out of evidence; this woman would have a civil case against CVS, the person at CVS, who gave the info out, and the Detective and depts he was representing…..
Storm Troupers do not need warrants.
The authoritarian regime is currently sitting in Washington. Private e-mail accounts, cozying up to mid eastern authoritarian regimes and funding their activities. Expect more of the same and less protection by old documents. Expect more of the same if HC or BS get elected.
Looks more and more like an authoritarian regime rather than a democracy where we are protected by the Constitution and Bill of Rights.
And the plot thickens…
Is pdmp data hippaa protected in that state?
It is illegal for a healthcare professional to access pt’s information in a PMP ..of a pt that is not theirs http://www.pharmacytimes.com/news/pharmacist-costs-walgreens-14-million-for-violating-hipaa-