Tag Archive for: AZPDMP

Arizona Becomes the 19th State to Ban Warrantless Searches of Prescription Drug Database

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On June 8, Arizona Governor Doug Ducey (R) signed SB 1469 into law. Introduced by Senator Nancy Barto (R‑Phoenix), the bill requires law enforcement to obtain a search warrant before perusing the state’s prescription drug monitoring program (PDMP) database, administered by the Arizona Board of Pharmacy. The bill passed unanimously through both houses of the state legislature. Until now, law enforcement could inspect the PDMP database without a warrant by simply stating in writing that the information is necessary for an open investigation or complaint. The new law further states that if, upon perusing the database, police find no evidence of a statutory crime but believe a practitioner’s prescribing patterns fall outside the norms, they may only report the matter to the relevant state licensing board for possible investigation. State medical licensing boards conduct investigations using members of the medical profession who understand the variations and nuances of clinical situations, and the practitioner under investigation is afforded due process.

This is an important reform. As panelists explained at a Cato conference in 2019, while PDMPs have succeeded in pressuring practitioners to reduce opioid prescribing (down more than 60 percent since its peak in 2011), they primarily serve as a law enforcement tool. They have not reduced the overdose rate–if anything, PDMPs have driven non-medical users who are unable to obtain diverted prescription pain pills to more dangerous drugs in the black market, such as heroin or fentanyl, causing the overdose rate to increase.

With countless stories in the mainstream press about doctors arrested, sometimes with police bursting into their crowded waiting rooms, or having their licenses suspended for “overprescribing” prescription opioids—even though there is no legal definition of “overprescribing”—many doctors have been frightened into curtailing their pain medicine prescribing. Some are refusing to see patients for pain altogether and referring them to pain management specialists, many of whose practices have long waits for appointments because they are inundated with referrals. Some pain clinics refuse to see new patients. Some patients, in desperation, seek relief in the dangerous black market. Some resort to suicide. Some exasperated patients threaten their doctors. Some even resort to murdering their doctors.

The goal of SB 1469 is to protect the Fourth Amendment rights of patients and doctors. Hopefully, as police discover they cannot go on fishing expeditions through private medical records without convincing a judge to issue a search warrant—and if they can’t dictate how to practice medicine by arresting doctors for what they perceive as “inappropriate” prescribing—the new law will help thaw the chilling effect cast upon doctors treating their patients’ pain.

Arizona has now become the 19th state to enact this search warrant requirement. It joins states as diverse as Alaska, Montana, Missouri, Utah, California, New York, Vermont, and New Hampshire. Unfortunately, Rhode Island repealed its search warrant requirement in 2017.

In 2019 Drug Enforcement Administration investigators wished to inspect the New Hampshire PDMP and were rebuffed, pursuant to New Hampshire law that requires a search warrant. The DEA claimed the requirement did not apply to the federal agency. The New Hampshire PDMP lost its argument in front of the U.S. District Court for the District of New Hampshire and appealed to the First Circuit Court of Appeals. The American Civil Liberties Union filed an amicus brief supporting the appellant. In January of this year, the appeals court upheld the trial court’s opinion, ruling the DEA can access a state’s prescription drug database without a warrant. The state of New Hampshire petitioned for an en banc rehearing in March, which was denied in mid-April. New Hampshire next sought a stay of the appeals court decision pending the filing of a certiorari petition in the U.S. Supreme Court, implying the state intends to appeal to the Supreme Court. The state has until mid-July to file the cert petition.

Regardless of the federal case’s outcome, state and local law enforcement remain subject to the search warrant requirement. And while the DEA may be the giant gorilla in the room, state-level efforts to protect the privacy of medical records and the patient-doctor relationship is a welcome step in the right direction. Arizona’s legislators and governor deserve praise for enacting SB 1469.

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This article was published by Cato Blog and is reproduced with permission.