Prescription-Drug Policing: The Right To Health Information Privacy Pre- and Post-Carpenter
This Article operates at the intersection of privacy law, Fourth Amendment doctrine, and prescription-drug surveillance instigated by the U.S. drug-overdose crisis. Reputable reporting sources frequently frame that ongoing crisis as a prescription-drug-overdose “epidemic.” Current epidemiological data, however, indicate that the majority of American overdose deaths are now a result of illicit and polysubstance drug use and not prescription-opioid misuse. The prescription-opioid-centric frame has nonetheless sparked the rapid rise of surveillance of prescribers and patients in the form of state prescription-drug monitoring program (“PDMP”) databases. State PDMPs, which maintain and analyze significant data concerning every dispensed controlled substance, surreptitiously collect a stunning amount of sensitive health information.
PDMPs are predominantly law enforcement investigative tools dressed up in public-health-promoting rhetoric. Under the guise of rogue prescriber, pill mill, and doctor–shopper crackdowns,
the Drug Enforcement Administration (“DEA”) routinely self-issues subpoenas that permit the agency to conduct warrantless sweeps of the voluminous data stored in state PDMP databases.
These rampant law enforcement sweeps procure highly sensitive health information and raise serious constitutional privacy concerns. The Supreme Court’s recent Fourth Amendment decision in Carpenter v. United States , however, may limit the DEA’s otherwise unfettered access to state PDMP databases.
Carpenter and the Fourth Amendment doctrines central to its holding motivate this Article and animate its two core contentions. First, pertinent pre-Carpenter precedent requires the DEA to obtain a warrant in order to conduct sweeps of state PDMP databases. Second,
courts are even more likely to rule that warrantless DEA searches of highly sensitive health-care data run afoul of the Fourth Amendment in the post-Carpenter world. Simply stated, patient prescribing records stored in state PDMP databases are entitled to Fourth Amendment protection.
IF you wish to read all 79 pages, click on the link above. Carpenter vs United states was about the government going thru a person’s cell phone history without a properly signed warrant.
There is growing list of letters from various large healthcare corporations and/or office practices owned by a large healthcare corporation.. that state that they are going to limit or stop prescribing opiates and/or controlled substances.
They are making a PUBLIC STATEMENT that they are going to start discriminating against pts who have a valid medical necessity for controlled substances and most/all of those pts are considered a COVERED ENTITY under the Americans with Disability Act and Civil Rights Act and it is a civil rights violation.
Most/all of these healthcare corporations have NO FEAR of pts… they fear the DEA because NO PT has sued them for civil rights discrimination.
If you are a pt being discriminated against and you have one of these “denial of care letters” or know someone who has and is being discriminated against you should be contacting law firms that deal with civil rights violation… in talking to these law firms there needs to be two things you need to make clear… you are NOT TALKING ABOUT MALPRACTICE… you are talking about civil rights violation and that there is probably HUNDREDS OR THOUSANDS OF OTHER PTS being discriminated against. All are being DENIED APPROPRIATE CARE because of the medication that you have a valid medical necessity to help optimize your quality of life and you are being ABUSED by this healthcare corporation and its employees.
You let them start talking about MALPRACTICE … it is a loser discussion… because the defendant will hire a “expert” that will testify that he/she was following standard of care and best practices and your legal team will hire a expert that will testify that the plaintiff was not… it comes a he said … she said… and many states have caps on awards for malpractice and many are so low that even if the law firm wins a malpractice case on ONE PT… they will probably not cover their expenses if they take the case on a contingency basis.
If any attorney doubts the detrimental effects of under/untreated pain.. the above chart should change their mind.
Imagine if the pts that successfully sues these healthcare corporation.. would agree to put part of their settlement into a non-profit whose sole purpose to hire PR, Lobby and Law firms to fight for the rights of the chronic pain community. After all, isn’t getting pts their medications and optimize their quality of life what it is all about ? While the legal profession is circling like vultures around major healthcare corporations – think hospitals, chain pharmacies, insurance/PBM industry… the non profit can start taking on Congress and challenging the unconstitutional laws that they have passed and hopefully prevent future laws that will harmful to the chronic pain community if allowed to get thru Congress.
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