ACLU Intervenor Patients and Prescriber Win a Fourth Amendment Challenge Concerning DEA’s Attempt to Subpoena PDMP RecordsFebruary 19, 2014
By Karla L. Palmer –
Last week, the United States District Court for the District of Oregon ruled that the Drug Enforcement Administration’s (“DEA”) administrative subpoena powers are not unfettered when it comes to obtaining protected health information (“PHI”) submitted by pharmacies to Oregon’s Prescription Drug Monitoring Program (“PDMP”). The Oregon PDMP challenged DEA’s attempt to obtain PHI based on a state statute permitting such disclosure only after the requesting party obtains a valid court order based on probable cause (and issued at the request of a federal, state or local law enforcement agency). ORS 431.966(2)(a)(C). Notwithstanding the statutory provision limiting access to PHI, the DEA issued administrative subpoenas pursuant to 21 U.S.C. § 876 to obtain prescription drug records from the state PDMP concerning a patient and two physicians. These DEA administrative subpoenas warrants are typically issued under the authority of a local DEWA official and are not self-enforcing. Oregon claimed (as it had several times in the past) that it could not comply with the administrative subpoenas absent a court order; thus it filed a declaratory judgment action asking the federal court to decide whether DEA could obtain access absent a court order.
The ACLU intervened as of right pursuant to Fed. R. Civ. P. 24(a) on behalf of four Doe intervenors and a Roe prescriber, raising arguments concerning the intervenors’ Fourth Amendment rights related to PHI. The intervenor patients each utilized controlled substances in schedules II-IV to treat various medical conditions. The intervenor prescriber asserted that, as a consequence of his patient population, he prescribes more scheduled substances than typical doctors. Nevertheless, DEA had interviewed and investigated him in the past. The doctor expressed concern that his patients’ records have been accessed or may in the future be accessed without a warrant, which affected his prescribing practices. The parties cross-moved for summary judgment.
The district court sided with the intervenors and granted their motion for summary judgment on Fourth Amendment grounds. The court noted that medical records have enjoyed a long history of confidentiality dating back centuries, and that privacy protection is rooted in both Oregon law and certain aspects of federal law. The court stated that the intervenor patients had a subjective expectation of privacy in prescription information, “as would nearly any person that used prescription drugs.” The prescriber also had a subjective expectation of privacy in his prescribing information. Importantly, the court found that “by reviewing doctors’ prescribing information, the DEA inserts itself into a decision that should ordinarily be left to the doctor and his or her patient.” The court “easily” concluded that the intervenors’ subjective expectation of privacy in prescription information was objectively reasonable. Although the court recognized no absolute right to privacy in prescription information (because patients and prescribers must expect physicians, pharmacists and other medical personnel to access their information), the court found that it is “more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records.”
In addition, the court found that prescription drug information held by the PDMP is “intensely private” because it connects a person’s identifying information to the prescriptions drugs they use. Such prescription records are protected by a heightened privacy interest rendering the use of the administrative subpoena unreasonable. The court also rejected DEA’s attempt to hold any expectation of privacy unreasonable under the “third party doctrine,” which holds that an individual does not have an expectation of privacy in information held by a third party (here, the pharmacy or PDMP). Distinguishing other third party doctrine cases dealing with bank and telephone records, the Oregon court held that prescription records are “more inherently personal or private” than those types of records. Furthermore, the submission of information to the PDMP, unlike telephone and bank records, is required by law – the only way for a patient to avoid the submission is to forego medical care or leave the state. Deeming this “not a meaningful choice,” the court concluded that the DEA’s use of administrative subpoenas to obtain prescription records from the Oregon PDMP violates the Fourth Amendment.
This raises the question of whether and to what extent other state PDMPs will follow suit and require DEA to obtain a court order based on probable cause to obtain certain prescription records from state PDMPs (… and almost every state has a PDMP). Will this curtail DEA’s ability to quickly obtain information during an investigation into illicit activities involving controlled substances? Must DEA obtain a court order or warrant upon a showing of probable cause before reviewing prescription records located in PDMP databases or, more importantly, at pharmacies? Similarly, because the Oregon district court reached its decision on Fourth Amendment grounds (and not based on a Supremacy Clause analysis comparing the federal and state statutes at issue), this case could be a starting point for other states – and prescribers and patients – to attempt to curtail what they may believe is DEA’s intrusion into “intensely private” personal information.