So apparently odum has taken it upon himself to follow my posts around and attempt ridicule rather than engage in discussion.
Now I know what public bulletin boards are about, but I’m not speaking about some anonymous poster stopping by for a drive by posting. I’m talking about the board’s operator.
So do you think it’s appropriate for odum to be responding to my posts with attempted ridicule?
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Tonight’s Same Sex Marriage Hearing starts with a 5pm info session followed by a meeting at 6:30pm. I will post notes throughout the evening in the comments section, many of which will be just thoughts off the top of my head.
I am doing this on three different blogs, so please be patient. More in the comments section.
There are all kinds of substances to which we are exposed at some point in our lives. Properly employed, many substances are beneficial and can have positive, productive or healthy side effects.
However, when abused, they can have tragic consequences for the substance abuser. When substance abuse affects an entire community, an entire neighborhood can go downhill fast.
In Vermont, we are seeing an epidemic of substance of abuse. The substance being abused is power and the substance abuser is our State government.
The quality of life in our civic neighborhood is deteriorating as a result of the addictive and destructive behavior of a power abusing state.
Why Vermont needs an intervention, after the jump.
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.
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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.
Once again, a solitary citizen has acted on his conscience and taken an action that should inspire us all to step up and pitch in.
John Nirenberg, a 60 year old retired academic, a man who had never considered himself an activist, realized that he could no longer abide the general state of depression and shame that he felt as an American being “represented” by the Bush administration’s policies of torture, aggressive war and trampling on civil liberties.
Realizing that impeachment is the only way that this cabal can be stopped, and understanding that the Constitution requires impeachment in such times, Nirenberg has embarked on a walk from Boston to Speaker of the House Nancy Pelosi’s office in Washington D.C., where he will tell the Speaker to put impeachment back on the table.
In fact, Pelosi has abused her office by thinking that she had the prerogative to take it off of the table in the first place. While she and her Democratic cohorts have proven themselves submissive and subservient to Bush/Cheney, whom they were elected to oppose, they have shown themselves remarkably cavalier about ignoring the Constitution, to which they took an oath of office to uphold and defend.
John decided to take this walk entirely on his own, with no organization or infrastructure supporting the journey or helping to publicize it. But within days, activists, citizens and organizations came on board and have helped him to connect with a network of Americans who will be joining him in their towns when he comes through.
And this is where you can help out. Go to John’s website www.marchinmyname.org and add your name to the thousands calling for impeachment that he hopes to dump on Pelosi’s desk when he arrives in early January. In addition to your name, John wants photos and testimonials that he can deliver – items that can’t be discarded with the touch of a delete button. You can mail them to PO Box 17, South Newfane VT 05351, and I will get them to him before he reaches D.C.
John is walking along U.S. highway 1 following the coast until he heads inland to D.C. Check out his itinerary and spread the word to anyone you know who lives along the east coast. If people can shake off some of their lethargy and hopelessness, we could make this into a major peoples’ march that our sniveling and cowardly politicians won’t be able to ignore.
Reactions posted on his website show that, although the vast majority of Americans who know about this are excited and appreciative, there are those who see him as a traitor and would like to see his project come to a bad end. We must mobilize ourselves to stand with John, and show him that those who have the courage to oppose illegal and immoral government will enjoy the support and assistance of the American people. Only if we pitch in and add our voices, will John be able to realize his goal of making a difference in changing the course of this failing democracy.
UPDATE: Based on confirmation from law enforcement sources, pharmacies that were approached by the State Police on Friday November 30th and from legal sources representing people affected by State Police conduct last Friday, GMD can add the following to the reporting that has occurred already.
Kudos to Dan Barlow who published a well-balanced and thorough article about Fishing Derby Friday. – odum
It’s always good to start with the constitution, this time from Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Yesterday, Green Mountain Daily scooped all the Vermont news outlets by publishing a story about state police collecting pharmacy records across the state. You can find the original piece here.
A summary, after the jump
per Odum’s post from yesterday:
GMD has learned that State Police representatives are going to Vermont Pharmacies and demanding complete dumps of all information about patients with Schedule II prescriptions (the class of medications that include prescription drugs with street value). After talking to a few pharmacists, I found one in Franklin County that confirmed they had been approached, and had been advised by the state that they did, indeed need to comply with the request. Needless to say, he wasn’t too happy about it.
What’s even more disturbing? When I asked if he knew of any other pharmacies that were being mined for data in this way, he responded that it was his understanding that this was a process that was to take place across the state.
So here’s what we’ve found since:
This does not come without its irony. As Doug Hoffer posted in the comments at GMD:
the state should NOT be carrying out warrantless searches. And pharmacists should not be required to participate. Indeed, this is happening at the same time the state is considering a suit against the phone companies for turning over records to Homeland Security.
We are definitely through the rabbit hole.
But it turns out there’s an interesting background to this story. A few weeks ago, Vermont Public Radio produced a piece about violent crime and drug use. Some choice quotes:
…Vermont police are also seeing enormous problems with illegal pharmaceuticals, especially oxycontin.
This comes at a time when Baker says all law enforcement agencies in the state are understaffed.
(Baker) “The local police departments are carrying around 60 vacancies. The state police are carrying somewhere around 20 vacancies. And some of that’s attributed to financial reasons. But in many cases it’s about recruiting and the inability to find qualified individuals.”
(Host) Baker says modern-day police candidates need computer and problem solving skills-skills that can earn them higher salaries in other industries.
Baker says the state has already started talking about long-term solutions to these problems. Meanwhile, he says police are working on short-term strategies to combat crime more effectively with the resources they have.
So here’s the burning question: is this one of their creative solutions? Instead of targeting criminals, target everybody who has ever had contact with one of these medications?
I want to mention a couple quick items here about this before I close:
As usual, we have choices here. Pharmacies are, as far as we can tell, complying with the state police.
As citizens, we do have the right to call our pharmacies and ask if our records have been released and to whom.
As citizens, we do have the right to sue pharmacies which release our records without valid medical purpose.
As citizens, we do have the right to speak out about this and publicize it whenever possible.
Or, of course, we can just hope nothing bad happens.
Databases aren’t just places to collect information. They’re places to lose information. In 2006, an employee at the Vermont State Colleges system lost a laptop containing social security numbers, payroll information and other data. This isn’t just about the police collecting data. It’s about an underfunded department securing it and keeping it out of the wrong hands.
So I’ll end with a few questions:
Who do you think controls this data and where do you think it will be stored?
Do you think the state police have the resources to keep it all in house, or do you think they’ll end up privatizing the information?
Do you think that everyone who comes into contact with this information will keep all of it private?
UPDATED with link to the full report. 2:33 p.m. JMc.
Following up on yesterday’s report below; it may or may not be the case that Pharmacists are required by state law to provide the prescription records of all Schedule II medications to State Police as is being demanded of them.
The Pharmacist I spoke to contacted the Secretary of State’s office and was advised to comply, however that advise would seem to be in conflict with a report the state Department of Health submitted to the legislature this year specifically in reference to the law which gives police their authority to examine such records (18 VSA 4218). From the report:
“HIPAA contemplates that state laws may conflict with its terms and has been written to address those situations. HIPAA, by its terms, preempts provisions of state law that are contrary to HIPAA, unless state law affords greater privacy protection. When state law affords greater protection than HIPAA, the state law is not preempted and the covered entity must follow state law.
HIPAA regulations provide that a state statute is “contrary” to HIPAA if it is impossible for the covered entity to comply with both HIPAA and the state law or if the state law stands as an obstacle to the accomplishment of the full purposes and objectives of HIPAA. 45 C.F.R. § 160.202. Applying this standard, conflicts between HIPAA and section 4218 of Title 18 must be resolved by the covered entity on a case-by-case basis. The pharmacy, as a covered entity, must determine whether HIPAA permits the requested disclosure to DPS, and that determination will depend on the circumstances of the request for the protected health information. As in the examples above, there are circumstances where complying both with HIPAA and section 4218 would not be impossible and the disclosure would be permitted.
In the event the pharmacist determines that HIPAA does not permit the disclosure, he/she is required by HIPAA to refuse disclosure. Since HIPAA would preempt state law in this case, section 4218 of Title 18 would not control and the pharmacist would not be in violation of section 4218 for refusing to disclose.
For these reasons, VDH and DPS conclude that section 4218 is not contrary to HIPAA. Correspondingly, since the pharmacies are bound by HIPAA and may disclose information only as permitted by HIPAA, any medical privacy concerns are addressed by HIPAA and no revision of section 4218 is necessary.”
HIPAA, again, is the Health Information Portability and Accountability Act – the federal law which sets down strict guidelines on the privacy of medical records.
This would seem to put pharmacists on the hot seat in a big way. They’ve got the State Police demanding they dump these records in an unprecedented (and unconstitutional) way, the Secretary of State’s office advising them they must comply – but the Department of Health telling the legislature it’s really up to the Pharmacist to make a judgment call on whether or not the request violates HIPAA, as the State law is not supposed to supersede the federal regime.
If I were a pharmacist, I’d be pissed off. Obviously, if I were a patient, I’d be pissed off.
Another fiasco brought to us by Vermont’s executive branch…
Are you sitting down for this?
A few weeks back, Caoimhin wrote a fantastic diary expressing concerns over proposed implementation of 2005’s legislation creating the Vermont Prescription Monitoring System. At the time, he wrote:
The Department of Health is in the process of seeking legislative approval of administrative rules the Department drafted to govern VPMS. The proposed rules will monitor your physician’s provision, and your access to, hundreds of treatments for thousands of conditions. The purpose of the law is intended to identify substance abusers and to facilitate their treatment — nothing inherently wrong with that and in fact it is a laudable goal. However, the proposed regulations by the Department of Health do not accomplish the goal set out by the legislature, violate the laws governing the VPMS and present too many dangers for disclosure, misuse, mishandling of sensitive patient medical information.
As CL stated, the law mandates collecting the minimum necessary information to achieve it’s stated goals.
But instead of the Department of Health, we apparently needed to be watching out for the State Police.
GMD has learned that State Police representatives are going to Vermont Pharmacies and demanding complete dumps of all information about patients with Schedule II prescriptions (the class of medications that include prescription drugs with street value). After talking to a few pharmacists, I found one in Franklin County that confirmed they had been approached, and had been advised by the state that they did, indeed need to comply with the request. Needless to say, he wasn’t too happy about it.
What’s even more disturbing? When I asked if he knew of any other pharmacies that were being mined for data in this way, he responded that it was his understanding that this was a process that was to take place across the state.
Sounds to me like the State Police is actively putting together a medical records database of Vermonters across the state for the purpose of, as this pharmacist opined, “fishing expeditions.”
And if you think something of this magnitude wasn’t signed off on by the Governor’s office, you’re kidding yourself.
The pharmacist I spoke to was understandably concerned about the implications to their responsibilities under the federal law which regulates electronic medical records and privacy, as such a warrantless, mass-data capturing adventure would seem to run afoul of this federal regime. However, HIPAA (The Health Insurance Portability and Accountability Act) also requires pharmacists to cooperate with local, duly empowered law enforcement, so he was advised to comply.
When I expressed shock, the pharmacist merely suggested I look at “who’s in the White House.”
Not to mention the Pavilion in Montpelier.
Here’s the part of the state law that’s the problem:
§ 4218. Enforcement
(a) It is hereby made the duty of the department of public safety, its officers, agents, inspectors, and representatives, and pursuant to its specific authorization any other peace officer within the state, and of all state’s attorneys, to enforce all provisions of this chapter and of the rules and regulations of the board of health adopted under this chapter, except those otherwise specifically delegated, and to cooperate with all agencies charged with the enforcement of the federal drug laws, this chapter, and the laws of other states relating to regulated drugs.
(b) Such authorities and their specifically authorized agents shall have, at all times, access to all orders, prescriptions, and records kept or maintained under this chapter, as provided herein.
(c) A person who gives information to law enforcement officers, the drug rehabilitation commission, or professional boards as defined in section 4201 of this title and their specifically authorized agents, concerning the use of regulated drugs or the misuse by other persons of regulated drugs, shall not be subject to any civil, criminal, or administrative liability or penalty for giving such information.
Can’t get much broader than that.
This is a bad law, and now we’re seeing exactly why.
I’ll post more information soon. In the meantime, it’s time for some letters to the editor (and some calls to legislators).
UPDATE: In State of Vermont v. Judy Welch, the Vermont Supreme Court – unbelievably – has upheld the power of law enforcement to seize pharmacy records without a warrant as far back as 1992, stating “there is no patient’s privilege available for pharmaceutical records.” Here’s a link (MAJOR hat tip to CL for all the help, here)
Per the Rutland Herald: Racine considers run for governor:
“I have in recent weeks had a number of friends encourage me to think about a campaign,” Racine said. “I continue to be interested in being governor of the state of Vermont someday. With that encouragement I am thinking about it again.”
Doug: do it.
(Good stuff included in here. – promoted by JulieWaters)
Well, it seems activists from the left in Vermont were pretty busy during the course of this last week. There was the announcement that the quarterly, statewide anarchist paper Catamount Tavern News has reached an agreement to join the Teamsters and become VT’s first all unionized media. Then Friday’s non violent civil disobedience successfully shut down two military recruitment offices and grabbed a ton of regional and national press (here, here, here, and of course here to mention just a few). At the same time, national attention also came to a Brattleboro man for his efforts to push for impeachment.
And in the midst of all this, now comes the news that Vermont activists and organizers once again have their own, open source Independent Media Center, as VT Indy Media has been re-launched. They still have some bugs to work out, but once back on its feet, VT Indy Media stands to be a solid contribution to our state’s people-powered, non-corporate media. In a world where exploitation, dishonesty, and media consolidation are common, everyday occurrences, we need more sites like IMC.
Now, to keep it going…..
From Geoffrey Norman at VT Tiger, emphasis mine:
Ms. Partridge does not say what specific utterance by the Governor got her nose so out of joint. And one is curious, since the man is the soul of temperance. If Jim Douglas and Harry Truman were in a kitchen somewhere together, Truman would no doubt be saying, "Jim, dammit, turn up the heat."
Benefit of the doubt time, cuz I'm such an agreeable guy: from the tone, it sounds as if Norman sincerely believes this, and isn't just perpetuating a convenient narrative for his team. By all means, then, let's review a little history after the fold…
According to press accounts at the time, Douglas hammered away at Leahy for voting for a $23,000 boost in congressional salaries at a time when the Vermont economy was sluggish. Douglas chided the senator for calling such an attack unfair and labeled a pamphlet on the subject as "McCarthyism innuendo," according to the Oct. 30, 1992, editions of the Rutland Herald.
Douglas shot back by saying Leahy was "screaming like a stuck pig," the paper reported.
… the hard-hitting TV spot that flipped Racine's image back and forth like a catfish on a griddle. Since both candidates enjoyed high favorability ratings, victory required going on the attack and taking the Quiet Man down a few notches.
The Republican Party, on behalf of Governor James Douglas, distributed a 15-year-old news clipping this month that described the Democratic contender, Mayor Peter Clavelle of Burlington, as marching in support of the Sandinistas,
Republican Jim Douglas suddenly went into Tarrant-style, negative-attack-mode with a 30-second TV spot trashing Democratic challenger Scudder Parker and a 60-second version doing likewise on the radio dial. Hey, I thought Ol' Scudder was a long-shot?
Here's the radio script:
Some people make a name for themselves, and they call Scudder Parker "Mr. Property Tax."
(Douglas:) "There are obviously people who are not interested in my political success, and they’re certainly exercising every opportunity to try to act on that belief this year."
Then he blamed the media:
"Some of the questions I get from the media sound an awful lot like some of the e-mails that come out of the other party headquarters."
Huh? I was speechless. Was he saying that questioning the technology security breaches or the delays at the Bennington office building was somehow political?
A day after the Legislature failed to override his vetoes, Gov. Jim Douglas on Thursday labeled legislative Democrats "big losers," faulting them for what he said was a lack of civility.