Prescription-Drug Policing: The Right To Health Information Privacy Pre- and Post-Carpenter

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.

 

8 Responses

  1. Hi I am 45 and have had 5 lower lumbar laminectomies and and 1 lower discectomy all from 2006 to 20014 from a 3 wheeler accident when I was 21 years old . My last surgery in 2016 was a neck disc replacement with a cage placed around these . My husband is a city police officer of 23 years and has good health insurance . I have been on opioids for 12 years and recently went from oxycodene 20 mg 4 times a day and er morphine twice a day down to hydrocodene 10-325 , 5 times a day if needed and Er OxyContin 10 mg , my last script was filled with Lupin ( India ) manufactures . Normally 1 hydrocodene would help pain within 15 min for at least 3 -5 hours , these pills from cvs were horrible , the first day I took one , I became nauseous and shaky and no pain relief , I started withdrawing that night . I took 2 pills and again the same thing ( I feel these pills are duds) and there is definitely a bad inactive ingredient in these Lupin brand hydrocodene . My cvs said that these are the only generic they carry . I explained that I got off oxycodene ir because cvs and the 3 pharmacies where I live all started to carry Rhodes manufacturer ( they were similar to these lupin brand ) so I couldn’t take them anymore , that is why my dr decided on weening me to hydrocodene . I could not keep going through this with manufacturers , it’s like we do not have a voice and we live in America , these generics are causing so many real pain victims agony and torture . When I cannot even stand up straight when arising from bed and my right leg is constant stabbing and jolts from my butt to my calves each day , Nobody should have to worry each month about the generic med that these pharmacies will give them . If the doc writes Daw in the box for Norco 10-325 does the pharmacist have to fill with name brand , and we have good heath insurance

    • I suspect that these tabs may not be dissolving properly… to test that out… they are immediate release so CRUSHING them .. is not a big issue… but …it will exclude inadequate dissolution problem.. crush them between two tablespoons and mix the power in something sweet… applesauce, jam, jelly honey… nothing hot.. could harm the medication.. if they work better.. then you have your answer.. you could also ask your doc to prescribe the hydrocodone in a liquid… then there is no dissolution issues. you could always find you a independent pharmacy where you will be dealing with the Pharmacist/owner who doesn’t have someone from a corporate HQ that is looking at buying the least expensive med available… here is a link to help you find one by zip code http://www.ncpanet.org/home/find-your-local-pharmacy … CVS has 10,000 stores and if they can save $1 on a Rx in each store every day by buying the cheapest meds available… that can turn into a sizeable amount of $$$ for their bottom line… as a publicly traded company they have stockholders to keep happy with higher stock prices and being able to pay out higher dividends.

  2. They are already using and selling this information. They are also tracking all media mentions of certain terms, including brand names. No meaningful data was gathered from the PDMP, and death rates went up where it was installed. Of course the deaths were due to illegal drugs and had nothing to do with the PDMP.
    The corporations gathering this data are selling it, and the results are even darker than you can imagine. Hospitals and insurers use this data to selectively deny care to certain patients, and even when this results in deaths, more expensive medical care, and more trauma, the facts are covered up.

    The PDMP was not designed to collect medical data, it was for tracking, marketing, and propaganda purposes. The big tech corporations already have access to this data, and have cross referenced it with consumer buying habits, medical records,and social media accounts.

    It is too late now the genie is out of the bottle, no one paid attention. Our government agencies have been undermined, and our politicians are still to compromised to reign in big tech.

  3. Steve,
    I have read earlier articles where you have implied that CPP are not legally pushing back hard enough against those clinics/doctors who are taking our pain meds away from us. That may by true in some cases, but I would like to relate my experience.

    I am a 75 year old male palliative care intractable chronic pain patient (living 25 miles north of Fairbanks, AK) who was on a stable opioid dosage prior to 1/25/19 when my pain Doctor said he was going to cut my dosage by 80%. This Forced Medication Reduction (FMR) was in spite of the fact that he had written into my records twice that my (stable) dosage was medically necessary and required to maintain my functional status. It is also in spite of the fact that my pain doctor (or clinic) cannot tell me a valid medical reason for taking me off my stable dosage. The last excuse given was it was for the CDC Guidelines. I pointed out that the guidelines had been debunked during the spring of 2019 by the CDC director, but it made no difference.

    The first reduction (1/25/19) was for 8% and I did a 2 week long pain log and a sleep log showing how even this reduction had its negative effects on my function status and health, and presented the typed document to my pain doctor. This stopped the FMR for a couple of months but I was left with the 8% reduction, and then the FMR started again. I wrote letters to 3 congressional members asking for help. One did not respond after 5-6 tries, and the other two said they could not get involved with a private business. This latter excuse was also given by the State’s governor’s Office. I asked for help from the ACLU and the Disability Law Center (both said they “non-profits” and were out of funds and could not even consider my case. I also made reports to the FDA and any other Federal agencies I could think of, but never got a response. I called about 8-10 lawyers looking for someone that I was willing to pay to take my case, but none appeared to want to get involved in anything as controversial as a patient being forced off his opioid pain medications.

    I wrote of my situation in detail to the Dept. of Health & Human Services, Office for Civil Rights. In their written letter response, they stated they investigate (among many other things) discrimination in the delivery of health and human services based on age, disability, etc. However, they will take no action in my case because they have decided that my FMR is a “Quality of Care” matter and they have no jurisdiction. They suggested that I contact my Medicare “Quality Improvement Organization”, “Mountain-Pacific Quality Health Foundation” regarding my medical care. I have no idea how this organization would help with my FMR, and I feel that this Department of Health and Human Services has abandoned their responsibilities in not investigating my case. Calling my case a “Quality of Care” matter when it is blatantly a violation of my Civil Rights and discrimination is nothing more than verbal gymnastics on their part as a means of throwing my case out without consideration.

    My pain meds are still being cut as the FMR continues, and I continue to lose more of my ability to function. This is a bad situation as I live alone on 10 acres in the mountains north of Fairbanks where temperatures range from a -20 to -40. My sleep was never very good due to my disease, but now it has deteriorated to the point where I fall asleep while standing and trying to do the minimum maintenance needed to keep body and soul together. The pain in my legs causes muscle contractions similar to RLS and has gotten so bad that I cannot not walk when this occurs. I have written my pain doctor in the past (via the clinic’s patient portal) asking him to stop this FMR (and pointing out the reasons), but never receive a reply. Also, my palliative care doctor has called my pain doctor attempting to stop this FMR, but to no avail.

    I am at the end of my rope and out of options. If you or anyone else has any suggestions, please leave a response to this comment. I did want to let you (Steve) know that not all CPPs take their FMR as something that they just complain about, and as something that they take no action on to legally defend themselves. I have looked high and low for someone (some agency, group, or lawyer) to step up and say “Hey, this is not right” and “I will take up your case and defend your right to proper medical treatment”. BUT, it is not happening. Just be aware that no one seems to want to defend the CPP. It is sad but true based on my personal experience.

    • You did not say if your pain clinic is part of a larger healthcare corporation (hospital) and your prescriber’s decision may have more to do with a corporate policy as to what their employee prescribers will/will not do when it comes to prescribing controlled meds. It is not just the ADA being violated by the Civil Rights Act as well … they both deal with discrimination against “disabled people”.. it is a civil rights violation. There is also denial of care and senior abuse foe starters… you need to keep the law firm thinking about MALPRACTICE… it is a no winner… plaintiff’s expert will testify that best practices was being followed and defense expert will testify that it wasn’t being followed… it is a he said/she said and whoever the judge or jury believes and many states have $$$ caps on awards … most so low that law firms can not come out financially ahead – even if they win. If you are dealing with a prescriber following corporate policy then you are just one of maybe hundreds more pts being treated the same way.. you need a law firm that deals with civil rights violations or has a substantial dept that does… law firms go after deep pockets and multiple law violations being done against the more pts the better…

      • Steve,

        Thank you for the response and for the advice. My pain clinic did have a local office in Fairbanks (Alaska) but it closed a year ago and I now drive 400 miles (one way) for my appointments in Anchorage. My clinic is the AA Spine and pain Clinic in Anchorage, AK at https://www.aapain.com/. My pain doctor is Doctor Boomgaard (https://www.aapain.com/medical-providers/kenneth-boomgaard-m-d/).

        My disease is Charcot-Marie-Tooth Disease which causes nerve destruction and atrophy of muscle tissue. The disease has been progressing for the past 20 years. Among the resultant problems, I am to the point where the loss of muscle tissue now makes it painful to sit, and it causes the occurrence of painful pressure points at night making restful sleep impossible.

        On a side note, Fairbanks does have other, more local, pain clinics, but in 2016 (when I first moved here) I applied to every one of them and was rejected because I was over their acceptable MME limit or possibly not taking their acceptable type of pain medication (?). I contacted legal firms in Fairbanks in an attempt to take legal action including the local Disability Law Center (DLC) office. The largest legal firm in town said they would not take my case stating (approximately) that “we can’t force a clinic to accept you as a patient”, and the local DLC did not respond at all. For my troubles, I found myself black listed by construction firms in Fairbanks most of which belong to the Interior Alaska Building Association (https://www.interioralaskabuilders.com/). It took me over a year to get one Fairbanks’ construction firm to agree to do some major remodeling work on my home. They agreed only after I contacted the DLC Office (in Anchorage this time) and this DLC Office intervened on my behalf. The “black listing” still continues to this day.

        Regarding my current pain clinic, I see nothing on their web site indicating that they are a part of a larger health care organization, although their patient portal at: https://14826.portal.athenahealth.com/ refers to being powered by Athena Health, but that appears to only be related to the patient portal.

        Regarding your comment that “your prescriber’s decision may have more to do with a corporate policy as to what their employee prescribers will/will not do when it comes to prescribing controlled meds.” To start with, prior to 1/25/19, I was on what was considered a stable dosage and which my pain doctor stated in my records (on 11/30/18) that the medication was “Medically necessary; it is medically necessary for the patient to continue taking his medication to maintain his functional status.” There was no “corporate policy” apparent at that time.

        Also, After the Forced Medication Reduction (FMR) was started on 1/25/19 where my meds were cut by 8%, I prepared a (lack of) sleep log covering two nights and a 2 week pain log. I presented this to my pain doctor on 3/8/19 at a special appointment I made for this purpose. The pain doctor stopped my FMR leaving me with my 8% reduction, but started the FMR again at my June – 2019 appointment. But the day (3/8/19) I presented my sleep/pain logs to my pain doctor, he wrote in my records that, “”Medication medically necessary…Patients functional status greatly decreased with the reduction in medication.” Again, it does not appear to me that this clinic is part of a larger organization that has a “low opioid limit” policy.

        I was told by my pain doctor during one appointment (shortly after the FMR had started) that he must do this or lose his job at the clinic, and that the clinic owner was being told to do this if he wanted his clinic to stay in business. How much truth is in these statements is anybody’s guess. However, the clinic must pay my pain doctor an excellent salary to make it justifiable to him to place a 75 year old palliative care intractable chronic pain patient in more torture, and then look the other way. I could never do that to another human being.

        When I asked (for what must have been the fifth time) at my appointment on 11/20/19 how was this FMR could possibly be justified medically, my pain doctor said it was based on the CDC guidelines, I told him that the Director of the CDC had stated in the New England Journal of Medicine on 6/13/19 that the guidelines were not intended to limit opioid medication to some minimal amount for chronic pain patients, and especially for those patients that were not “opioid naïve” and had been successfully taking their opioid pain medication for a long period of time. My pain doctor shrugged off my statement and continued with my FMR.

        My pain doctor had indicated that palliative care patients would be exempt (along with cancer patients) from having their medications forcibly reduced. After he stated this, I presented him with a letter from my palliative care doctor stating that I was (in fact) a palliative care patient. My pain doctor then quickly further qualified his statement about a palliative care patient being exempt from medication cuts. My pain doctor said that the “palliative care” exemption would only apply if: (1) I was in a palliative care clinic (he was quick to say that this particular clinic was not a “palliative care clinic”), and (2) only if my palliative care doctor was the one who prescribed my pain medication(s). In other words, as a palliative care patient, I would be exempt from this clinic’s FMR only if I was going to a totally different clinic and also only if it was another doctor (other than my current pain doctor) who was prescribing my pain medication(s). My pain doctor returned my letter and continued with the FMR.

        I had read your earlier comments regarding the fact that CPPs should stay away from identifying to lawyers that they are attempting to bring a malpractice suit against their pain doctor/clinic because of a FMR. At one point in my search for help, I was told to contact the State’s Legal referral service for their recommendations for an ADA or Civil Rights lawyer. Law firms must sign up for this service so they will be referred to possible clients calling in for help; it is not a complete listing of all law firms available. When I called, the referral service only had one malpractice lawyer listed, and no one listed for ADA violations or Civil Rights complaints/violations. So, I ended up doing Google searches for ADA/Civil Rights Lawyers (in Anchorage where the pain clinic is located). Again, I called a number of what I considered to be possibilities, but no one stepped up to offer their help even though I was willing to pay for a lawyer. I even called one firm who had closed their Anchorage Office and were now located in Seattle, WA.

        Regarding your statement, “It is not just the ADA being violated…the Civil Rights Act as well …they both deal with discrimination against ‘disabled people’.. it is a civil rights violation. There is also denial of care and senior abuse for starters.” I totally agree with this statement. However, if I cannot find someone (or some agency) to help me go forward with the legal aspects of my case, all is lost! It will not matter how many “violations” are occurring if no one is willing to help. I would have more access to legal help if I was a prisoner at Guantanamo and my meds were being taken away from me in an attempt to torture me in giving up some State secret(s). In fact, it would probably make the morning news as a human rights issue similar to the torture associated with “water boarding”.

        Since my pain doctor has said in my clinic records that my “medication is medically necessary for the patient to maintain his functional status”, I don’t understand how they can do this FMR in light of the doctor’s statement. At my appointment on 11/20/19, I told my doctor that he had stated that my functional status would significantly decline with a reduction in my medication(s). He actually shrugged it off saying, “Oh that!” referring to his earlier medical statement/prognosis about my loss of function with a FMR. I have also pointed out to my pain doctor that this FMR is not in keeping with statements made by the International Human Rights Commission, the AMA, the FDA, and the CDC but this was ignored.

        The Office for Civil Rights (OCR), Pacific Region suggested contacting (1) my State’s Quality Improvement Organization (QIO), Mountain-Pacific Quality Health Foundation regarding my “quality of care” issue (provided I am a Medicare beneficiary, which I am). It was also suggested that I may wish to contact the Medical Review Board in my area about my health care concerns. I do not feel confident at all that I will get any help in stopping my pain doctor’s/clinic’s FMR from these entities. Do you or others have some/any insight into exploring this avenue?

        I have filled out an elderly abuse report and will send it into the appropriate Alaska state agency shortly. However, I think the response will be similar to that given by the OCR. That is, this is a “quality of care” issue and we will not take any action! I do plan to request an appeal on the decision by the OCR that this is a “quality of care” issue (if they have an appeal process in place).

        I will also reapply to the Alaska ACLU Office and the Disability Law Center in Anchorage; both are “non-profits” that said they were out of funds to consider my case in 2019, but (perhaps) they now have their new funding for 2020.

        As I stated previously, I am at the end of my rope, out of options, with no place to turn! Again, if you or anyone else has any suggestions, know of any law firms, or agencies that might help that I have not already tried, please leave a response to this comment. It appears that CPPs are treated worse than lepers during biblical times.

        I apologize for such a long response/comment. But this is a dangerous and frustrating situation for me. I am supposed to be at the point in life where I am enjoying my “Golden Years”, not fighting for my existence. I appreciate for your time and patience in reading this long comment/reply.

  4. Did exactly that. Had letter, sent to firms, said it was violation of ADA. Didn’t matter. ACLU wasn’t interested either. I don’t know the answer

  5. Well said Steve, well encapsulated.

Leave a Reply

%d bloggers like this: