Feds accessing medical records without warrants

By Allen Cone  |  June 11, 2016 at 11:36 AM
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WASHINGTON, June 11 (UPI) -- The federal Drug Enforcement Administration is fighting to retain its ability to access private prescription records without a warrant.

The issue is being tested in Oregon, where the DEA can access the Prescription Drug Monitor Program with only an "administrative subpoena" that doesn't require that the agency show it has probable cause to believe that a crime has been committed.

In 2012, the state sued the DEA, and a U.S. District Court backed the state in 2014, ruling the data is protected under the Fourth Amendment's protection against unlawful searches and seizures.

The DEA has appealed the ruling to the U.S. Ninth Circuit Court of Appeals in San Francisco.

Two of the five individual plaintiffs are transgender and take prescription hormone drugs covered by Oregon's prescription monitoring law.

The American Civil Liberties Union is challenging the DEA's claim.

"The ACLU and the ACLU of Oregon represent a group of Oregon patients and a physician who are concerned about the impact on medical privacy and the doctor-patient relationship if federal law enforcement were permitted to access prescription records without demonstrating probable cause to a neutral judge," the ACLU says on its website.

The Obama administration argues that because records have already been submitted to a third party (Oregon's program), patients no longer have privacy.

The federal government is making it easier for states to shared information through a Department of Justice's software platform. So far, 32 states share their data through a National Association of Boards of Pharmacy program.

In Utah, the Cottonwood Heights Police Department used its unrestricted access to the state's program to look at private records of 500 emergency personnel without a warrant.

Marlon Jones, an assistant fire chief for Utah's Unified Fire Authority, was arrested as part of a dragnet after someone stole morphine from an ambulance in 2012.

Jones and another firefighter and a paramedic were arrested on suspicion of prescription fraud.

"I got a call at work from the police chief, who I know and work with," Jones testified before a state senate committee last year. "He said 'We think you have a problem, you're taking too many medications. We need to make sure you're no longer a threat to the community or yourself. So we're doing this to help you.'"

Jones, who was taking legal painkillers after a double knee replacement, was charged with 14 felony counts, but they all later were dropped.

The state Legislature immediately passed legislation that required police agencies to get a warrant to access the records.

Before the law, the Utah legislative auditor general found that police checked the database 2,851 times. In the six months since the law was passed requiring a warrant to do a search, there were just 71 queries.

At least eight states have similar requirements that law enforcement officers show probable cause and get a warrant to search the database, according to Utah's audit.

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