Police Chiefs and Civil Liberties Lawyers Tangle Over Florida’s Drug-Monitoring Database

Proposed changes to a state-run prescription drug database won’t do anything to protect patient privacy, civil rights lawyers argued on Tuesday.

Florida Department of Health officials say they want to tighten security on the state’s prescription-drug monitoring program, after the names and detailed prescription-drug histories of more than 3,000 people were released to defense attorneys after a drug sting in May.

The draft rule changes, discussed at a DOH workshop Tuesday, are “minor, inconsequential and fail to address the practical issues” that led to the release of private data of thousands of people who weren’t under investigation, American Civil Liberties Union of Florida lobbyist Pamela Burch Fort said during the meeting.

But law enforcement officials complained that at least one of the proposals would hamstring investigators. The proposed rule would limit distribution of records obtained from database searches to a single authorized user at any given agency.

Quincy Police Chief Walter McNeil, representing the Florida Police Chiefs Association, said that’s too restrictive.

Allowing more law-enforcement personnel to have access to the records won’t make patient privacy more vulnerable, McNeil said later.

“For the most part, you’ll find that most agencies guard confidential information confidentially. What most agencies will do is treat this information sacrosanctly and make sure that it’s kept in-house,” said McNeil, a former secretary of both the state Department of Juvenile Justice and the Department of Corrections.

Becky Poston, the administrator of the database, told McNeil the agency would consider incorporating his suggestions, also backed up by the Florida Sheriffs Association.

Representatives of the two law-enforcement organizations and the ACLU were the only ones who spoke at Tuesday’s 30-minute workshop.

Lucy Gee, director of the Department of Health’s Medical Quality Assurance Division, said the agency’s goal is to safeguard patient privacy.

“That’s our number one mission here is the safety, the protection of private patient information,” she said. “We expected to get some input from some others. We’re trying all different kinds of ideas and we want to be sure that it meets law enforcement’s needs but it also protects public information.”

But ACLU lawyer Maria Kayanan said broadening distribution of the records would be going backwards.

“It seems like the original purpose of this PDMP (prescription drug monitoring program) has been lost in the fray and now it’s a law-enforcement tool rather than a helping tool for physicians to identify patients that may be doctor-shopping. That’s certainly not what it was sold as,” Kayanan.

The ACLU opposed the database from its inception and now is demanding that database searches require a warrant, something that is not required for law-enforcement officials to review pharmacies’ paper records as part of active drug investigations.

The ACLU filed a complaint about the security breach with the U.S. Department of Health and Human Services and recently filed an amicus brief in the criminal case in Volusia County. In May, State Attorney R.J. Larizza released the records of more than 3,300 individuals to five of six attorneys for defendants accused of prescription drug fraud.

Larizza’s office is asking a judge to clarify whether prosecutors are required to release the data again to defense lawyers.

Michael H. Lambert, a Daytona Beach lawyer whose name and prescription history was on the list but who was not being investigated, sued Larizza and is challenging the constitutionality of the law. Larizza and Attorney General Pam Bondi are asking a Jacksonville judge to dismiss the case, scheduled for a hearing next week.

The ACLU is also fighting the state health department over records related to the search in the Volusia case.

Kayanan contends that the program allows law enforcement to cast too broad a net by using wildcard search parameters that result in the return of records unrelated to people actually under investigation.

The proposed rule changes do nothing to narrow the scope of the searches, she said.

And the proposed rule also does not include any remedy for patients like Lambert whose prescription drug data was released to third parties. Current laws and rules do not require individuals to be notified if their histories have been wrongfully released.

The agency will publish the proposed rule and take public comments before formally adopting it, Gee said.

“I’m hoping that when we publish our proposed rule text that we’ll get more written comments,” she said.

The release of the names in May heightened concerns over the database, which became operational two years ago. Gov. Rick Scott, at one time a staunch opponent of the program, reversed his opposition to it as Bondi lobbied heavily to take steps to curb prescription-drug abuse. Lawmakers this spring agreed to fund the program.

–Dara Kam, News Service of Florida