Internet Explorer 11 is not supported

For optimal browsing, we recommend Chrome, Firefox or Safari browsers.

Prescription Drug Databases Pit Access vs. Privacy

Balancing patient privacy rights and law enforcement’s access to prescription drug databases proves a difficult task, reports

By Maggie Clark, Stateline Staff Writer

Dr. Shawn Jones, an ear, nose and throat surgeon in Paducah, Kentucky, was conducting a routine office appointment when he got a phone call from a worried pharmacist. The pharmacist had just received a prescription from Jones for 90 Percocet pain pills, an unusually large order for a doctor who rarely prescribes more than 20 pills at one time.

Jones asked the pharmacist to fax over the prescription, and he immediately recognized it as a forgery. It was for a female patient he hadn’t seen in five years. She had somehow gotten hold of one of his prescription pads. Jones asked the pharmacist to delay filling the prescription, went back to the exam room and talked with a policeman who happened to be in the office at the time. The policeman called in to the precinct to have the woman arrested.

Under Kentucky’s current prescription drug laws, only a vigilant pharmacist could have stopped these fraudulent prescriptions. The regulations don’t allow physicians to monitor their own prescribing habits to check for fraud, and the Kentucky board of medical licensure can look up a prescribing record only if a formal complaint against a physician is filed.

That will change under new legislation passed last week in a special session. To deal with the growing problem of prescription drug abuse, Kentucky legislators enacted tougher regulations on doctors and pain management clinics. The law mandates that all physicians and pharmacists who prescribe schedule II and III drugs, such as oxycodone (OxyContin) and hydrocodone (Vicodin), check the patient’s prescription record before writing or filling a prescription. They also have to register prescriptions for those drugs in a state database within 24 hours of writing or filling the prescription.

Currently, only about 25 percent of the states’ doctors use the database. Now, all of them will be expected to.

Privacy issues

All of this may not sound very controversial. But it is. The database can also be a tool for law enforcement investigations, and these agencies want as much access to it as they can get. This has created a debate about how to balance patient privacy and law enforcement needs in fighting a serious criminal and public health problem. In Kentucky, the attorney general wanted to take control of the expanded database from the Cabinet for Health and Family Services, where it’s been housed since its creation. But in the last hours of the legislative session, the attorney general’s office lost that argument as a result of patient privacy concerns.

Similar arguments have been taking place in states all over the country. In Vermont, which has recently had a surge in prescription drug abuse, Governor Peter Shumlin has supported law enforcement agencies that want expanded access to the state’s database, over the objection of civil libertarians and patient advocates who secured the legislature’s promise in 2006 that the database would only be a public health tool.

“We need to be able to go into this database and identify where there are abnormal prescription uses and trends and get to those people,” said Keith Flynn, Vermont’s public safety commissioner, in an interview with WCAX-TV, “not because we want to get to them quicker to arrest them, but to identify needs and help them break the cycle of their addiction.”

Changes to the law would allow an investigation into illegal prescription use to start following a tip from a healthcare provider, and law enforcement officers could then access the patient’s information without a warrant. This warrantless access to personal digital data is a slippery slope, says Allen Gilbert, executive director of the Vermont Civil Liberties Union, who worries that the police could simply go on a “surf and click” investigation. “The discussion,” Gilbert says, “really is about what kind of access the police will have to electronic personal health information.”

A potential compromise has been floated that would allow the police to request information from the database without a warrant by getting permission from the state health department. A bill to establish that process is currently working its way through state Senate committees.

Do databases work?

Debates surrounding the expansion of the database underscore the program’s overall effectiveness. There’s a nationwide study comparing effectiveness of state programs underway at the University of North Carolina at Chapel Hill, and early assessments show that databases reduce doctor-shopping and change prescribing behavior in jurisdictions where they’ve been introduced.

A recent article published in the journal Pain Medicine reported that the databases facilitate a relative decrease over time in prescription drug misuse, despite state differences in program administration.

A 2010 evaluation of Kentucky’s database showed that 90 percent of doctors who consulted it found it to be an effective tool in preventing drug abuse and doctor-shopping. The analysis also found that the database did not have the “chilling” effect on patient care that many doctors initially feared, and may have increased doctor confidence in making prescribing decisions.

But legislation can only go so far to stop the prescription drug abuse epidemic, says Sherry Green, chief executive officer of the National Alliance for Model State Drug Laws. “I think people sometimes forget,” Green says, “that [the database] is only an information tool. If you don’t have the other pieces in place, like drug treatment resources, psychiatric services or job counseling, the database is not going to solve the problem.”

Legislating against abuse of prescription drugs is especially difficult, Green says, because legitimate use of the drugs is encouraged and privacy is an integral part of the doctor-patient relationship protected by other areas of the law.

In most cases, Green says, “[legislators] are not doctors or health professionals, and the professional patient relationship is a very sacred relationship that involves a lot of individualized assessment. That is one of the reasons why we see some of struggles about where the line is [between public safety and doctor-patient confidentiality]. It can be very difficult to draw that line when putting words on a page.”

Caroline Cournoyer is GOVERNING's senior web editor.
Special Projects
Sponsored Stories
The 2021 Ideas Challenge recognizes innovative public policy that positively impacts local communities and the NewDEAL leaders who championed them.
Drug coverage affordability really does exist in the individual Medicare marketplace!
Understand the differences between group Medicare and individual Medicare plans and which plans are best for retirees.
For a while, concerns about credit card fees and legacy processing infrastructure might have slowed government’s embrace of digital payment options.
How expanded financial assistance, a streamlined application process and creative legislation can help Black and brown-owned businesses revive communities hit hardest by the pandemic.
In recent years, local governments have been forced to adapt to a wildly changing world, especially as it pertains to sending bills and collecting payments.
Workplace safety is in the spotlight as government leaders adapt to a prolonged pandemic.
While government employees, students and the general public had to wait in line for hours in the beginning of the pandemic, at-home test kits make it easy to diagnose for the novel coronavirus in less than 30 minutes.
Governments around the nation are working to design the best vaccine policies that keep both their employees and their residents safe. Although the latest data shows a variety of polarizing perspectives, there are clear emerging best practices that leading governments are following to put trust first: creating policies that are flexible and provide a range of options, and being in tune with the needs and sentiments of their employees so that they are able to be dynamic and accommodate the rapidly changing situation.