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From Health Law Daily, February 13, 2014

Administrative subpoenas of patients’ prescription drug information runs afoul of Fourth Amendment

By Anthony H. Nguyen, JD

Use of administrative subpoenas to obtain prescription records from a drug monitoring program violated the Fourth Amendment’s proscription against illegal search and seizure because there was a reasonable and heightened expectation of privacy on behalf of patients and physicians regarding the records. Although there is not an absolute right to privacy in prescription information, the federal district court held that the information was highly private and personal in nature and the subpoenas were unwarranted insertion into a decision normally between patient and doctor (Oregon Prescription Drug Monitoring Program v DEA, February 11, 2014, Haggerty, A).           

Background. Oregon established the Prescription Drug Monitoring Program (PDMP), an electronic database maintained by the Oregon Health Authority, to record information regarding Schedule II, III, and IV drugs as classified by the Drug Enforcement Administration (DEA) under the Controlled Substances Act (CSA). Schedule II-IV drugs can be used to treat a multitude of medical conditions including AIDS, psychiatric disorders, chronic pain, drug or alcohol addiction, and gender identity disorder. Approximately 7 million prescription records are uploaded to PDMP annually.

Protected health information. Under the PDMP process, a pharmacy that dispenses Schedule II, III, or IV prescription drugs in the state must electronically report information that includes: (1) type and quantity dispensed; (2) patient identifiers; and (3) practitioner identifiers. The monitoring information constitutes “protected health information” and is not subject to disclosure except in limited circumstances. The information can only be accessed by a physician or pharmacist for the purposes of evaluating medical or pharmaceutical treatment that the professional anticipates providing, is providing or has provided care. PDMP may also disclose the patient information pursuant to a valid court order issued at the request of federal, state or local law enforcement agency in the course of an authorized drug-related investigation.

Subpoenas and intervention. The CSA under 21 USC Sec. 876 also permits the Attorney General, as well as executive agencies acting pursuant to the Attorney General’s authority, to issue administrative subpoenas to investigate drug crimes. These Sec. 876 subpoenas are not self-enforcing and there is no penalty for failure to comply. However, under the CSA failure to obey a court order enforcing the subpoena may be punished by the court as contempt. The DEA sought to utilize Sec. 876 subpoenas to obtain prescription records from the PDMP for an individual patient, as well as all prescription drugs prescribed by two physicians. The PDMP refused to comply on the basis that providing information would violate Oregon law absent a court order.

The American Civil Liberties Union of Oregon (ACLU Oregon), along with patients and practitioners, intervened in the matter and raised arguments regarding the intervenors’ protected health information and Fourth Amendment rights. The DEA contended that Sec. 876, per the Supremacy Clause of the U.S. Constitution, preempted Oregon law. The PDMP countered in a declaratory relief action that if preemption were to be found, it was only applicable to Oregon’s probable cause requirement because the subpoenas were not self-enforcing.

Expectations of privacy. The court noted that before it could resolve any conflict between the PDMP’s obligations under state law and Sec. 876 administrative subpoenas, it needed to first determine that the subpoenas (1) were a constitutional exercise of the DEA’s authority and (2) caused a conflict with state law.

The court began by noting that the Fourth Amendment’s protection against unreasonable searches and seizures did not protect against all searches or seizures; rather it guarded against those of the variety in which a person had a reasonable expectation of privacy. The court found that the record indicated that each of the intervenors had a subjective expectation of privacy in either prescription or prescribing information. The court stated that by reviewing doctors’ prescribing information, the DEA was inserting itself into a decision that ordinarily was left to the doctor and his or her patient.

Although there was not an absolute right to privacy in prescription information, the court held that the patients’ subjective expectation of privacy in that information was objectively reasonable. Thus, the DEA’s attempt to draw a distinction between medical records and prescription information to avoid heightened expectations of privacy was nearly meaningless. For instance, the court stated that by obtaining the prescription records for some of the intervenors, a person would know that they have used testosterone in particular quantities and by extension, that they have gender identity disorder and are treating it through hormone therapy. The court held that it was difficult for it to conceive of information that was more private or more deserving of Fourth Amendment protection.

Third party doctrine. The DEA argued that even with a reasonable expectation of privacy in prescription records, the “third-party doctrine” undermined any such expectation. The court rejected this line of reasoning, noting that the PDMP’s records were not merely information held by a third party, but inherently more personal and private. Moreover, the information was not voluntarily conveyed to the PDMP, but required by Oregon law. The only way to avoid submission to the PDMP was to forgo medical treatment or leave the state. In granting ACLU Oregon’s motion for summary judgment, the court held the DEA’s administrative subpoenas violated the Fourth Amendment and rendered moot preemption issues.

The case number is 3:12-cv-02023-HA.

Attorneys: Sheila H. Potter, Oregon Department of Justice, Oregon Prescription Drug Monitoring Program. Kevin C. Danielson, US Attorney's Office, for United States Drug Enforcement Administration.

Companies: Oregon Prescription Drug Monitoring Program; United States Drug Enforcement Administration           

MainStory: TopStory EHRNews HITNews PrescriptionDrugNews PreemptionNews ControlledNews DrugBiologicalNews OregonNews

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