Databases key to Trump’s crackdown on opioids
The databases are helping to reduce opioid prescriptions, which have fallen by nearly a third since 2011.
https://www.politico.com/story/2018/06/29/databases-key-crackdown-on-opioids-686879
Bolstered by harsh law-and-order rhetoric from President Donald Trump and his aides, police around the country are using electronic databases to unleash a vast crackdown on opioid abusers and the allegedly crooked doctors who sustain them.
The databases are helping to reduce opioid prescriptions, which have fallen by nearly a third since 2011. Police and disciplinary boards use the records systems to roll up “pill mills,” tag patients who “doctor shop” for multiple pills, and warn doctors about prescribing patterns that stray from norms.
Analysis of that data was instrumental in what Attorney General Jeff Sessions described Thursday as the biggest health care fraud crackdown in Justice Department history. Among the 601 individuals indicted were 76 doctors charged with allegedly illegal prescribing or distributing opioids and other narcotics.
Yet it’s unclear the databases do much to help addicted patients. Deaths from illegal opioids like heroin and fentanyl have skyrocketed even as fewer prescription opioids are dispensed — and there’s evidence that thousands of prescription users cut off by fearful doctors are turning to these dangerous street drugs, or being left to suffer. Many addicted patients end up in legal trouble before they are offered help.
Now, civil rights advocates and medical groups are arguing the databases should be used to identify problem patients and get them into treatment. The American Medical Association calls for the databases to be placed under health departments rather than the police agencies and disciplinary boards that control most of them.
The prescription drug monitoring programs “were designed to find those bad doctors — and that kinda shifted at one point to also find those bad patients,” said Corey Davis, a lawyer with the Network for Public Health Law. “It’s in the DNA of them.”
Civil rights activists see such use of the databases as a continuation of a flawed “war on drugs” mentality.
“Law enforcement for easy, warrantless demand [of prescription drug data] keys up a debate as to whether we want to treat this as a public health problem, or a problem we can jail our way out of,” said Nate Wessler, an ACLU lawyer. “Decades of experience shows us it’s impossible to prosecute our way out.”
A powerful tool for law enforcement
Law enforcement’s power to use the databases is truly staggering. In many states, cops can trawl through medical records in search of illicit prescriptions with only slight suspicions of malfeasance.
In 23 state and territory programs, police merely have to be actively investigating a case to check the programs, according to a Brandeis University center that tracks the databases. And doctors often find themselves in the crosshairs.
“There’s really no limits placed on investigators’ ability to access” the information, said lawyer Henry Fenton, who represents a California doctor investigated through that state’s database.
With Trump and Sessions saying some drug pushers deserve the death penalty, advocates say the databases have become tools for intimidation and a boon for investigations by police and professional disciplinary boards.
Law enforcement agencies increasingly use the databases — and aggressively. From 2013 to 2016, the last year for which statistics are available, law enforcement agencies in 42 states conducted well over 2 million searches of the databases, according to a POLITICO review of state-level data. The searches increased more than fourfold in a subset of 18 states from 2011 to 2015.
The tallies probably underestimate database use, as the figures record each time a doctor prescribes a controlled substance. Many state programs automatically ping either law enforcement or state regulatory boards when certain prescription limits are breached.
Given the enormity of the opioid crisis, prosecutors and medical regulators feel they are right to hold clinicians’ feet to the fire.
“Doctors have to be held accountable,” said Michael Morrissey, district attorney of Norfolk County, Mass. “I think it helps to know there are eyes on them.”
In some jurisdictions — like Norfolk County — authorities investigating overdoses have referred cases to professional boards, which can potentially strip a doctor’s license.
Police use of the programs varies widely from state to state. Oklahoma authorities queried that state’s database 10 times more than police in neighboring Texas in 2015, for example. The Oklahoma queries result in criminal charges against 7 to 10 providers a year, said Mark Woodward, spokesman for the state’s Bureau of Narcotics, and investigations of 50 to 100 patients suspected of doctor shopping, forging prescriptions, or street sales.
The programs are effective at providing leads to investigators, initially by pointing out “statistical outliers” — unusual use patterns that may indicate pill mill doctors, said Adam Overstreet, formerly a federal prosecutor in Alabama.
The programs have been so good at detecting pill mills, in fact, that the problem may be subsiding. “I think we’re pretty much beyond” pill mills, said Morrissey. His region’s problems now stem mostly from inattentive doctors and patients who sell their prescribed drugs, he said.
Others think prosecutors are just getting started. “We’re still in the middle of this push,” Overstreet said. “I haven’t seen any signs of it slowing down.”
Policymakers at all levels are exploring further expansion of law enforcement and regulatory board use of the databases. Earlier this year, for example, Sen. Bill Cassidy introduced a bill that would condition HHS grants to prescription drug monitoring programs on their capacity to automatically report suspicions to authorities.
State policymakers have also bolstered police use of the prescription data. Last year, Rhode Island enacted a law allowing designated officers to use the state database without a warrant. The state’s attorney general, Peter Kilmartin, dismissed opposition from local medical and civil liberties groups.
“Maybe the question we should be asking is, ‘What are the doctors trying to hide?’” he said.
In January, Anne Arundel County Executive Steven Schuh called on the Maryland state legislature to make monitoring data more easily available to law enforcement.
Investigators’ targets “are the dregs of the profession, the bottom of the barrel,” Schuh said. Investigators’ use of the Maryland database had already quintupled from 2014 to 2016.
Until this year, the courts had generally ruled that patients had little expectation of privacy and that the Constitution did not require search warrants for use of the databases. That position may be imperiled, however, by late June’s Supreme Court decision in Carpenter vs. United States. The high court ruled in that case that a search warrant was required for authorities to peruse cell phone location data. By analogy, lower-court judges might find that highly sensitive prescription data is similarly sensitive, said the ACLU’s Nate Wessler.
Overstreet disagreed: Pharmaceuticals are already tightly regulated, and people have lower expectations for privacy, he said.
Monitoring programs were created for drug enforcement
From their beginning, the drug prescription databases were designed for use by law enforcement and medical and pharmaceutical licensing boards.
California established the forerunner of the drug databases in the 1930s, and other states followed suit with analog prescription-tracking systems: Doctors filled out their scrips on special paper pads that dispensed orders in triplicate. Patients then took the prescription to their pharmacist, who retained one copy and sent another to the database.
More and more programs were established as medicine went digital. Only one state, Missouri, has not established a program — and many of its counties and cities have banded together to create their own patchwork system.
In theory, the programs have treatment, as well as policing, applications: Doctors and pharmacists can use the programs to identify patients taking too many painkillers, and to guide treatment. But access is often an arduous process for doctors, who frequently must exit their digital health records and log into the program separately.
Even after clinicians get into the programs, they often don’t know how to interpret the results. The data don’t come with advice on how to treat patients with a substance use problem, or the availability of clinicians who can handle their problems.
The programs “were never designed for clinicians to check them,” said Davis, the public health lawyer, who has researched their history. Meanwhile, it is “trivial” for law enforcement to pull them up, he said.
For at least some health care workers, evidence that a patient has a problem with a controlled substance means that it’s time to call the authorities. A focus group study of Wisconsin pharmacists published in January found that they were inclined to solve problems by involving the authorities, whether out of fear or conviction.
“You basically have to call 911,” said one focus group participant. “This is not the time and place to be discussing their treatment options. It is the time to get them to jail.”
Clinicians have long complained that the threat of official sanction may dissuade doctors from prescribing some medically legitimate opioids. Patients are complex, they argue; some may tolerate and require high doses of opioids without abusing the drugs. But it’s a brave doctor who can stand up to the prospect of official sanction.
In a December newsletter, the outgoing president of the New York state medical society described the chilling effect of recent warning letters sent by the state bureau of narcotics enforcement.
“Many physicians receiving these letters expressed concern that they felt at risk for … prosecution despite treating their patients in a way they believed was medically appropriate to the patient’s condition,” wrote Charles Rothberg, the president. Officials denied that intimidation was their goal, he said.
The threat of investigations may bring unintended consequences, says critics. If doctors don’t deliver pain medication to patients who need it, the patients may seek out illicit drugs like heroin and fentanyl. The degree to which this already is happening is a matter of debate.
While the mortality rate from prescription drug overdoses is falling, heroin and fentanyl deaths are still rising. A recent review in Annals of Internal Medicine found some evidence that such overdoses increased after the implementation of a prescription drug monitoring program, and said evidence the programs reduce opioid overdoses wasn’t convincing.
Law enforcement vociferously denies any chilling effect on legitimate prescriptions for pain patients.
“Doctors who are practicing good medicine, they’re doing everything they need to do … they’re keeping good records, they’re monitoring for signs of diversion, even if they do have a high number [of prescriptions], they’ll still be safe,” said Overstreet.
Enforcement growing
Prosecutor Morrissey, in Massachusetts, says that state troopers query the prescription drug monitoring program every time there’s a death to find out which doctor last prescribed opioids to the deceased person, and refer the information to the state licensing board.
“Doctors play an important role — they have to be held accountable,” he said. Two or three doctors have turned in their licenses rather than face the board’s scrutiny, he said. Morrissey concluded that the doctors were “a soft touch … If they can’t live up to the scrutiny of their peers, shame on them.”
Clinicians in his state don’t see things that way. “I’m not sure I’d like my first corrective action to be the board of registration,” said Cheryl Bartlett, CEO of New Bedford Community Health Center. Bartlett, a former state public health commissioner, tried to talk Morrissey out his notification plan.
The approach puts prescribers on the defensive, she argued. A better way to change behavior is to offer educational services, she said.
The Department of Veterans Affairs, for example, provides training to all providers regarding best prescribing practices. While “the national conversation is going to death penalties and things like that,” Bartlett said, “most people don’t do well with the Big Brother approach.”
West Virginia has taken a different approach from Massachusetts. In 2017, the state’s public health department conducted a “social autopsy,” tracing each overdose death in the state to its roots. Some physicians associated with several deaths were turned over to the oversight board, said the state health commissioner, Rahul Gupta. But the data was also used to educate state lawmakers, who responded with bills to set opioid prescription limits.
Who administers the databases determines how they’re used. In West Virginia, the prescription monitoring program is run by the board of pharmacy. In other states, law enforcement agencies, licensing boards and public health departments are in charge. Gupta embedded a state health department employee in the board of pharmacy; a law enforcement or regulator might not have the same expertise, he said.
But control by law enforcement agencies is increasingly the norm.
In an April speech announcing an agreement between the Justice Department and 48 attorneys general to share prescription drug program data, Sessions said, “We are going to keep arming you with the tools that you need to keep drugs out of this community. And we are going to keep up the pace.”
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