How Govt. Crack Downs on Drug Prescriptions Can Backfire Spectacularly and Kill Privacy
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New York’s program, the Internet System for Tracking Overprescribing (I-STOP), is possibly the strictest in the nation. The law, signed by Gov. Andrew Cuomo last August, is the first to require doctors to review patients’ prescription history before they issue a new prescription for painkillers, and pharmacists to check the database before they dispense them. It also makes New York the second state to have pharmacists report prescriptions as soon as they are filed, and it mandates that by the end of 2014, all prescriptions for controlled substances must be dispensed electronically.
Painkiller prescriptions in New York increased by almost six million between 2007 and 2010, from 16.6 million to 22.5 million, according to a March 2012 report by state Attorney General Eric Schneiderman. Pressure to "do something" rose after a prescription drug addict killed four people while sticking up a drugstore on Long Island in June 2011.
Doctors and pharmacist groups in both Kentucky and New York opposed the legislation, citing administrative difficulty and patient privacy. Last July, Lexington emergency-room physician Dr. Steven Stack told Kentucky legislators that the law needed to be changed, because it “will restrict access by legitimate citizens to much needed relief of pain and suffering,” the Lexington Herald-Leader reported. He said an 80-year-old woman who comes to the emergency room with a broken wrist “doesn’t need a KASPER report” or extensive counseling to get pain medication.
Privacy and Deterrents
Only seven states—Colorado, Kansas, Minnesota, Oregon, Utah, Vermont, and Virginia—require doctors and pharmacists to inform patients that their PDMP information may be accessed.
The programs protect privacy by a combination of programmatic, technological and legal safeguards, says Sherry Green. All information is confidential, not covered by open-government-records laws, and unauthorized disclosure is usually a felony. Users need passwords to get access to the database; doctors need a medical license, and law enforcement needs at least “an active investigation” and usually a case number, she says. “They cannot use the PDMP to initiate an investigation.”
“There will be tens of thousands of people who will be improperly investigated,” Meghan Ralston responds. The program, she says, “seems set up to go after the little fish.” Someone going to six doctors and “lying about shoulder pain” to get one, two, or three months worth of painkillers from each is still getting only a few hundred pills, she adds. And while it may be happening, she says, she’s never seen anything about law-enforcement officers being certified to handle medical records under the Health Insurance Portability and Accountability Act of 1996’s privacy provisions.
“There’s a general privacy concern when the government’s accumulating large quantities of sensitive data,” says the ACLU’s Nathan Wessler. For one, he says, government data is routinely compromised. In 2012, hackers took 3.6 million people’s Social Security numbers and almost 400,000 tax payment records from South Carolina’s Department of Revenue, and Wisconsin’s accidentally posted the Social Security and tax identification numbers of more than 110,000 people and businesses on the Web.
Even in states that require a warrant or probable cause for law enforcement to get access to the database, the federal government can override those restrictions. Federal law requires only that a search be for information “relevant or material” to an ongoing investigation.
Oregon’s PDMP, established in 2011, requires law enforcement to have a court order based on probable cause. Last year, when the DEA subpoenaed the records of every prescription one doctor wrote for drugs in Schedules II, III, and IV during a six-month period, it refused to turn them over without such an order. In August, the U.S. Attorney’s office in Portland asked a federal court to rule that the looser federal law should apply. Assistant U.S. Attorney Leslie Westphal argued that the state law “would prevent the DEA from acquiring information through properly issued subpoenas when the investigation had not developed probable cause.” Magistrate Judge Paul Papak ordered the state to turn over the records.