ACLU seeks federal probe of FL drug databaseby Dara Kam | June 24th, 2013
The ACLU of Florida has asked the U.S. Department of Health and Human Services to investigate the state’s prescription drug database after the Rx drug histories of 3,300 patients were leaked to lawyers in a narcotics sting last month.
The civil rights group is accusing the state Department of Health; the program manager of the drug database, called ““E-FORCSE” (Electronic Florida On-Line Registry of Controlled Substances Evaluation Program); the U.S. DEA; the office of R.J. Larizza, state attorney for the Seventh Judicial Circuit; and other unknown entities and individuals of violating Floridians’ privacy.
Larizza gave the list of names to five of six attorneys for defendants accused of prescription drug fraud in May. Last week, he filed court documents showing that the 3,300 names were the result of a 2011 query by a DEA agent investigating a prescription fraud ring. Michael Lambert, an attorney whose name was on the list but is not accused of any crime, sued Larizza and is also challenging the constitutionality of the law. Lambert believes it is an unconstitutional violation of privacy and amounts to an unreasonable search and seizure by the government.
Last week, the Florida Department of Health, which oversees the program, announced it was exploring stricter security measures to help ensure patients’ privacy.
In the complaint submitted Saturday, ACLU lawyer Maria Kayanan told federal officials that law enforcement officials are given too much freedom when seeking records from the database, according to the program’s user manual.
Investigators can use a “wildcard search using partial text;” enter partial names or conduct a search for a name that sounds like the subject’s name, Kayanan wrote.
“There is no apparent oversight of the use of DOH’s PDMP by law enforcement, and there is no accountability for its misuse. The unacceptably broad queries and apparent lack of oversight invite abusive fishing expeditions by law enforcement agencies that can and, indeed have, revealed to private third parties, the confidential medical and prescription history, along with other personal identifying information, of thousands of individuals who are lawfully prescribed, and lawfully taking, prescription drugs,” she wrote. An individual’s prescription records are medical records, as they reveal intimate details of an individual’s medical conditions—details that should remain private, within the doctor-patient relationship.”
The ACLU is ramping up its attempt to get state health officials to tell them exactly what DEA Agent Sean Tucker asked for and that resulted in so many patients’ drug records. Health officials initially said the information sought by the ACLU was exempt from the state’s Sunshine Law because it is part of an active investigation.
Kayanan, in a renewed public records request made today, argued that the exemption citing “active investigation” cannot possibly include the other 3,294 people who are not among the six accused in the Volusia County case. She’s also trying to find out how many times law enforcement agencies have used a broad name search in their queries, how long the state is retaining those queries, and all of the requests from investigators the department has rejected.
Attorney General Pam Bondi and others insist the database has contributed to a decline in prescription drug overdoses and a sharp decrease in “doctor shopping.” Gov. Rick Scott initially opposed the program, citing privacy concerns, but later relented.
Created in 2009, the database became operational in the fall of 2011 but funding for the program foundered. Lawmakers banned the use of state money or contributions from drug companies to pay for the program until this year, when Scott signed off on $500,000 in public funds for the database.