Law enforcement access to CT drug monitoring data raises privacy concern

http://ctmirror.org/2015/08/13/law-enforcement-access-to-drug-monitoring-program-raises-privacy-concerns/

Washington — Connecticut’s Prescription Monitoring Program aims to stop the misuse of opioids and other dangerous drugs and save lives. But some are concerned these programs have given law enforcement officers access to private information about prescription drugs in your medicine cabinet.

Like many states, Connecticut has placed strict limits on the access law enforcement officers have to the database created by the monitoring program. Connecticut is also one of several states to give the federal Drug Enforcement Administration (DEA) access to the information.

DEA spokeswoman Barbara Carreno said her agency can only tap the program’s database “with a bona fide complaint investigation — no fishing expeditions.”

That means DEA agents and other law enforcement officers can only tap the database if they show evidence of an ongoing investigation and must limit searches to people linked to that investigation. But they need no warrant.

“The (prescription monitoring program) is one of many tools we use, but it is an effective one that saves time and resources,” Carreno said.

To Dan Barrett, legal director of the Connecticut American Civil Liberties Union, the establishment of drug monitoring programs like the one in Connecticut aimed at helping doctors treat their patients, has had an unintended consequence; they have become another weapon in the war on drugs.

“It was built for one purpose and used for another,” Barrett said. “It should not be a system where the computer is telling the police there is something going on with a patient.”

Several states, including Vermont, bar all law enforcement agencies from access to information collected in their drug monitoring programs.

Purpose of the database

Connecticut’s Prescription Monitoring Program, run by the state Department of Consumer Protection, was established in 2008 to give doctors a complete picture of a patient’s controlled substance use, including prescriptions by other providers, so that the physician can properly manage the patient’s treatment.

The latest change in the program will be implemented on Oct. 1, when Connecticut doctors will be required to check the database if prescribing more than a 72-hour supply of a drug listed on Schedule II through Schedule V of the federal controlled substance law. Those drugs include stimulants like amphetamines, anabolic steroids, opioids and other narcotics.

The monitoring program also tries to stop addicted patients from “doctor shopping” to obtain the drugs they want and to help doctors identify patients who need help for their drug abuse and addiction.

Prescription drug monitoring programs, now in nearly every state, also aim to shut down “pill mills” — medical practitioners who overprescribe — and ferret out “drug diversion,” the practice of transferring a legally prescribed drug to another person for illicit use.

Every week, at a minimum, Connecticut-licensed pharmacies are required to enter information about prescriptions they have filled for those Schedule II through Schedule V drugs into the database of the web-based system to provide patient information to doctors and pharmacists.

As far as law enforcement, John Gadea, Jr., director of the consumer protection department’s drug control division, said the state limits access to the database to officers involved in ongoing criminal investigations, mostly those in police narcotics and detective units.

To be granted access to the drug monitoring program information, these police officers must be recommended or authorized in writing by superiors and receive special training, Gadea said.

All requests for access by police must include an open, active case number. Those authorized to tap the system gain access through their computers with a special password.

Gadea said police should use the database to help speed up an investigation, but the legal record is still the prescription presented to a pharmacist.

“The (database) should never be used as probable cause for an arrest warrant,” he said.

But, Jay Ruane, president-elect of the Connecticut Criminal Defense Lawyers Association, said information culled by police from the database often leads to an arrest.

“It’s step one in a multi-step process,” Ruane said, one that is often followed by a search warrant for an individual’s home.

“The intention of the prescription drug monitoring program was good, but now it’s just a tool of law enforcement,” he said. “We often pass legislation without considering the consequences.”

But the pressure to stop prescription drug abuse is great.

Connecticut has been swept up in the nationwide increase in opioid addiction, which has led to a resurgence in the popularity of heroin.

The Connecticut Hospital Association says there were nearly 1,900 visits to emergency rooms in Connecticut last year related to opioid overdose, a 50 percent increase over 2011.

The association says nearly 500 people died from drug overdoses in Connecticut in 2013, about half from heroin overdoses and the rest from oxycodone, morphine and other prescription drugs.

In the dark

Tom Clark, clearinghouse manager at the Prescription Monitoring Program Center of Excellence at Brandeis University, said there’s a tradeoff between privacy and public health when it comes to drug monitoring programs.

“We’d be completely in the dark about prescription drug abuse without these programs,” he said.

Clark said most states have strict limits on law enforcement access to monitoring information.

“There are certain concerns about law enforcement access, but on the other hand, the information is extremely valuable in expediting investigations,” he said.

Clark cites a Brandeis study that showed the prescription drug monitoring program in Kentucky resulted in quicker identification of drug diversion cases that warranted investigation and gave law enforcement officials important new sources of evidence.

“This permitted work on many more cases than was possible prior to the PMP, and achieved a high rate of conviction,” the Brandeis report said.

Meanwhile, the ACLU has successfully sued the DEA over its access to information in Oregon’s drug monitoring program. The organization represented two transgender men taking prescription testosterone, a person taking anti-anxiety medication for post-traumatic stress disorders, and a person taking narcotic painkillers to help treat recurring kidney stones.

The ACLU said its clients consider their prescription information to be extremely sensitive, and were concerned that their privacy would be violated by the DEA’s access to their medical records.

A federal District Court judge agreed, ruling last year that patients have a reasonable expectation of privacy in their drug prescription records, and that law enforcement must obtain a warrant in order to search such information.

The DEA has appealed the decision to the U.S. Court of Appeals for the 9th Circuit.

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