Court hears oral arguments in Oregon prescription drug monitoring database case The Ninth Circuit Court of Appeals heard oral arguments earlier this month in a patient privacy case involving law enforcement access to Oregon’s Prescription Drug Monitoring Program (PDMP). The California Medical Association (CMA) joined the American Medical Association and other western state medical associations in 2015 to file an amicus brief with the appeals court challenging the authority of the U.S. Drug Enforcement Administration (DEA) to obtain patients' private prescription records without a court order. In this case, the DEA sought patient-specific information from Oregon’s PDMP through the use of a federal administrative subpoena, which does not involve judicial review or a showing of probable cause. The Oregon PDMP, however, refused to comply with the DEA’s subpoena on the ground that doing so would violate Oregon state law, which requires a court order based on probable cause before patient data in the PDMP can be disclosed to any federal, state or local law enforcement agency. A coalition of plaintiffs that include Oregon’s PDMP, the American Civil Liberties Union (ACLU), patients and physicians filed a lawsuit in federal court against the DEA challenging the use of administrative subpoenas to access PDMP information. The plaintiffs argued that information in the PDMP is protected under the Fourth Amendment of the U.S. Constitution and that the DEA must show probable cause and obtain a warrant prior to accessing such information. The federal trial court sided with the State of Oregon and concluded that the Fourth Amendment prohibits the DEA from issuing administrative subpoenas for the database records. The court held that patients have an expectation of privacy in their prescription information contained in the PDMP stating that it “is difficult to conceive of information that is more private or more deserving of Fourth Amendment protections.” The DEA appealed this ruling to the Ninth Circuit Court of Appeals, whose jurisdiction includes California. The brief filed by the medical associations urges the court to recognize the profound interests that this case places at issue in the areas of patient privacy and the integrity of the patient-physician relationship. The protection of patient privacy “is essential for a patient-physician relationship built on trust … so that patients will seek care and so that doctors may provide the most efficacious health care for the patient’s benefit,” the brief states. It advocates for the strongest possible protections for patient prescription data collected by state prescription drug monitoring programs so that data is used by doctors and pharmacists for responsible treatment and prescription practices and to protect public health and safety, not for the enhancement of federal law enforcement without stringent legal safeguards. Click here to read the medical associations’ brief. A decision from the Ninth Circuit is expected in early 2017. Contact: CMA legal information line, (800) 786-4262 or legalinfo@cmanet.org. November 28, 2016 CMA, General CURES, Drug Prescribing, Privacy 0 0 Comment Read More »
Tip: Smartphones in the office To protect patient privacy, develop a written policy on camera and smartphone use in the office. Although there is no law prohibiting a patient from taking photos or using mobile technology in a physician office, many practices implement office policies so that it is clear to staff and to patients what is allowed in the office and under what circumstances. For more information, see “Ask the Expert: Smartphones in the Office” available free to members in CMA's online resource library. Trouble getting paid? We can help! CMA’s Center for Economic Services (CES) is staffed by a team of practice management experts with a combined experience of over 125 years in medical practice operations. Our goal is to empower physician practices by providing resources and guidance to improve the success of your practice. Access to our reimbursement experts is a FREE, members-only benefit. Call (800) 786-4262 or email economicservices@cmanet.org. November 7, 2016 General HIPAA Privacy Rule, Privacy, Tip of the Month 0 0 Comment Read More »
CMA fights to protect patient privacy in CURES prescription database The California Medical Association (CMA) has filed an amicus brief with the California Court of Appeal in Alwin Lewis, M.D. v. Superior Court of the State of California, asking the court to give meaningful privacy protection to patient data collected in the Controlled Substance and Utilization Review and Evaluation Systems (CURES) database. In this case, a Medical Board of California investigator testified that the board routinely obtains confidential prescribing records from CURES for all patients of physicians subject to medical board investigations, even where the complaint is unrelated to the patients or the physician's prescribing practices. CMA believes that the current laws governing CURES and the manner in which patient prescription drug data is disclosed are inconsistent with the broad scheme of federal and state laws protecting the confidentiality and privacy of patient medical information. CMA’s amicus brief underscores the importance of confidentiality of medical information as an indispensable component of quality medical care. It explains the importance of recognizing that patients have a privacy interest in their medical information maintained in CURES, despite the government’s arguments that patients have a diminished expectation of privacy in their prescription data. The brief also addresses how the current CURES law gives too much discretion to the Attorney General’s office and argues that there must be clear guidelines on the use and disclosure of CURES data to provide patients with the proper assurances that the information will only be used or disclosed for specified purposes. With proper funding, maintenance and privacy safeguards, CURES has potential to benefit the public and physicians, assisting physicians in making informed prescribing decisions and helping to control drug diversion in the state. Unfortunately, for many years, the CURES program suffered from underfunding and understaffing that has hindered the adoption and use of CURES by health care practitioners. Recent CMA-supported legislation will provide a consistent funding source and the means for a significant technological upgrade of the system that currently contains over 100 million entries of controlled substances dispensed to patients in California. While this is a welcome upgrade for California physicians, it also highlights the importance of ensuring that proper privacy protections are in place for a database with increased capacity to maintain and sort large amounts of digitized prescription information on millions of Californians and share it with other state and national prescription drug monitoring programs. Given the inevitable privacy and security concerns that come with such a technological upgrade, CMA’s brief urged the court to recognize that patients have a privacy interest in their medical information maintained in CURES and that prescription information in CURES deserves the same confidentiality safeguards as any other part of a patient’s medical records. January 14, 2014 General CURES, Legal Advocacy, Privacy, Advocacy, Amicus Briefs 0 0 Comment Read More »
