There are only a few weeks to go before Vermont's version of its Proposed Prescription Monitoring System regulations will be up for legislative review. We now learn that the State Police are flexing their patient profiling muscle by conducting a fishing expedition of people receiving an entire class of medication. The fact that the State Police would enter a pharmacy and demand to access pharmacy records pursuant to 42 Vermont Code Section 4218 despite no specific complaint or information regarding a violation of law, is a police state obscenity. How did we get here? The Vermont Prescription Monitoring System (PMS) is pending in the regulatory and final legislative review and approval process. PMS is a program established by a new Vermont law inspired by a promised grant from the Bush administration Dep't of Justice. It was diaried by GMD here. The PMS was also developed against the backdrop of legislative consideration of repealing 18 V.S.A. § 4218, which is the statute the Vermont State Police recently upon in their recent confiscation of the highly personal, confidential and sensitive records of prescription medications dispensed to many Vermonters suffering from all types of ailments. When the General Assembly, in 2006, considered repealing §4218, the Vermont State Police submitted this argument to the legislature: [State Police] officers only access pharmacy records pursuant to section 4218 in response to a specific complaint or information of a possible violation of law. Section 4218 is not used in an unfettered manner to search randomly through records looking for possible crimes. Generally, diversion officers receive information concerning illegal drug use involving prescriptions from a pharmacist or physician. When a diversion officer does seek access to pharmacy records, he/she only accesses patient-specific information related to the complaint and does not conduct a more general review of pharmacy records. . . [emphasis added, see page 6] From its representations to the legislature, it seems the Dep't of Public Safety has a great deal of respect for Vermonters’ privacy rights when the General Assembly considered the repeal of an intrusive statute such as §4218. However, when the General Assembly is out of session and the PMS regulations look like they are about to be adopted, the Dep't of Public Safety's view on patient privacy seems, shall we say, a bit less guarded. Consider this, when §4218 was challenged unsuccesfully before the Vermont Supreme Court, Justice Denise Johnson said: One of the great conservative justices of the United States Supreme Court once observed that "[t]he history of liberty has largely been the history of observance of procedural safeguards." McNabb v. United States, 318 U.S. 332, 347 (1943) (Frankfurter, J.). The requirements of probable cause and valid search warrants are surely among the most valued procedural safeguards against unreasonable searches and seizures contained in our constitution. An insistence upon the observance of these requirements is one of the principal defining qualities between totalitarian governments and governments devoted to the protection of the liberties of free men and women. Today's decision, albeit motivated by a well-meaning desire to curb the abuse of prescription drugs, represents a perilous step away from these constitutional values. State v. Welch at page 89 Unfortunately, we the people of Vermont, the General Assembly and the three Justices on the Vermont Supreme Court who ruled in favor of §4218 did not heed Justice Johnson's warning in 1993. Heeding Justice Johnson's history lesson in the 1990s might have made it more difficult for the Dep't of Health and the Dep't of Public Safety to go hog-wild in breaking down any semblance of respect for liberty's "observance of procedural safeguards." Consider the context in which this past week's outrage, committed by the Vermont State Police against the privacy rights of Vermonters, occurred. The PMS legislation was extremely specific in the type of information that the State of Vermont will be allowed to collect when monitoring Vermonter's use of prescription medication. The statute only allows the Dep't of Health to collect the name of medicine prescribed and (1) a patient identifier, which may include the patient's name and date of birth; (2) drug dispensed; (3) date; (4) quantity dispensed; (5) days' supply; (6) name of health care provider. (18 V.S.A. § 4283). The proposed rules, if adopted, will require pharmacists to provide information on prescriptions beyond the scope of the personal information that the legislature authorized. The unauthorized information the Dep't of Health is attempting to force pharmacies to surrender includes: a patient’s complete address, a National Drug Code Number, the number of refills prescribed, the prescriber’s DEA number and including suffix if applicable, the particular dispensing pharmacy, a patient's source of payment, if the "patient" is an animal, then the report shall indicate the animal's' name and species and the owner’s full name, date of birth and complete address. The level of mission creep is troubling on many levels. This is but one - among dozens of proposed regulations - where the State is demanding to overstep its legal authority, yet the program is not even in place. It shows that privacy rights, and legal protection of privacy rights are not a primary concern, if they are a concern at all. It also demonstrates a flagrant disregard for the legislative process. The legislative process is the one place where the citizens of Vermont have at least a shot at influencing the policies and laws that govern their everyday lives. The committees that considered PMS spent a great deal of time developing a list of information they would permit the Dep't of Health to consider while monitoring Vermonter's use of medication. The House and Senate committees also took testimony and determined the absolute maximum amount of information necessary and appropriate to be collected for the drug monitoring. Vermonters made the effort to speak out and be heard by their representatives in Montpelier, and their elected representatives placed some safeguards and compromises into PMS as a result. Because Vermonters spoke out to their elected officials, the legislature placed some minimal procedural safeguards in place before passing the PMS. The Dep't of Health obviously did not get the message. The Dep't of Health's attempt to implement PMS demonstrates no interest in "observing the procedural safeguards of our liberty" about which we have been warned. The proposed PMS regulations will come before the legislative committee on administrative rules in the next few weeks. I will keep everyone posted. I will invite everyone to attend and post more information about this issue in the interim. ------------------------------------------------- Finally, a prediction -- Expect to hear, at some point, the false claims that this most recent outrage against our privacy rights - the taking of Vermonters' medication records - is a critical component to fighting the misnamed "war on drugs." This is not part of a "war on drugs." This is war on sick people. Sick people, not criminal suspects, had their records searched and seized without cause or without a warrant. Sick people are the victims of this state action. The Vermonters who had their confidential medical records searched and seized by the state of Vermont are our family members, our neighbors and, most likely, people reading this diary. If this is in fact a "war," the police, the Douglas administration (and the health department since this was done under the authority of laws under its jurisdiction), have serious explaining to do. The first public official who says this is necessary to fight a war on drugs is really saying they have just declared war on every sick Vermonter, and every Vermonter who has been sick, and every Vermonter who might someday be sick and every Vermonter who once believed that their constitutional rights meant anything. This is not a war on drugs, this is a war on Vermonters. The fact that no warrants were issued and no crimes were identified shows that this is an attack on the privacy rights and an intrusion into the medical care of sick people, not a war against drugs. |
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