Pharmacies on guard over drug queries
By DANIEL BARLOW Vermont Press Bureau | December 06,2007
MONTPELIER — Law enforcement offices in Vermont are supposed to collect information about the purchase of prescription drugs only when they have a reason to believe a specific crime may have been committed.
But in at least one case last month, Vermont State Police asked for a list of all customers seeking powerful pain medicine, according to a pharmacist.
Fairfax Pharmacy owner Rick Hogle said he refused to hand over a list of his customers' prescribed Schedule II drugs, which include medications such as oxycodone, when asked by a State Police trooper who was investigating the spread of such drugs on the street.
Hogle, a pharmacist for 16 years, said he felt caught between protecting the privacy of his customers and assisting law enforcement in stopping the illegal sale and use of these medications.
"I'm not going to release patient information," Hogle said. "The woman from the State Police was very polite and did not throw her weight around, but unless they get a court order, I'm not going to release this information."
Officers with the Vermont Department of Public Safety appear to have the authority to request and search through pharmacy databases under a 1967 law. But Commissioner Kerry Sleeper told lawmakers last year they would only use that authority for specific criminal investigations.
"(The law) is not used in an unfettered manner to search randomly through records looking for possible crimes," according to a Vermont Department of Health report, based on comments made by Sleeper, that was given to the Legislature in December 2006.
"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," the report adds.
Calls to Sleeper's office Wednesday were forwarded to the State Police's criminal division in Waterbury. When asked about the allegations, Major Thomas L'Esperance would not directly answer if troopers had attempted to collect mass amounts of patient information.
"If they have, it was with the goal of stopping the potential spread of deadly drugs on the street," L'Esperance said.
Secretary of State Deborah Markowitz, who oversees the pharmaceutical industry in Vermont, said her office began getting phone calls from pharmacists last week asking about what access State Police have to their prescription records.
"It really came as a surprise to us," she said of the allegations, which were first reported by the Green Mountain Daily blog Monday.
The Health Insurance Portability and Accountability Act, a federal law known better as HIPAA, states pharmacists can give police access to prescription information in certain instances, such as a criminal investigation, but those judgment calls are left up to the individual pharmacist, Markowitz said.
Police can request information on specific individuals, she added, but asking a pharmacist to "pull all their records" is wrong.
"Law enforcement has a legitimate interest in stopping the flow of prescription drugs for illegal use," Markowitz said. "But I know I don't want people to know what my family's prescriptions are."
More than a dozen pharmacists across Vermont contacted for this story said they have not been approached by State Police for prescription information, although several said there was a buzz among the pharmacist community this week about the allegations.
Anthony Otis, a Montpelier lobbyist for Vermont pharmacists, said he had heard that in addition to the Fairfax Pharmacy, at least two other pharmacies were approached recently by the State Police, but he could not verify that.
"There have been some lengthy conversations this week about this," he said.
Jim Marmar, executive director of the Vermont Pharmacist Association and manager of the Woodstock Pharmacy, said it is common for pharmacists to cooperate with police on criminal investigations — but there are limits.
"They can request that we search through our files, but they can't go on a witch hunt," he said. "But it still is a bit of a gray area overall."
Marmar added that his pharmacy had not been approached by State Police.
The controversy comes at a time when the Department of Health is preparing to launch the Vermont Prescription Monitoring System — a massive statewide database that would track the disbursement of medications. About 30 other states operate similar programs.
Barbara Cimaglio, deputy commissioner of alcohol and drug abuse programs for the Health Department, said Tuesday the database is expected to be up and running in spring 2008.
Law enforcement officials would not have access to the database, she said, and it would instead be monitored by health care providers, pharmacists and professional licensing boards in an effort to stop the spread of the prescription drugs that have street value.
"If you look at the law, it is very clear who can access this information," Cimaglio said.
When the Legislature authorized the creation of the database in 2006, there was intense discussion at the Statehouse about repealing the 1967 provision allowing police access to pharmacy records.
But that effort was unsuccessful after state law enforcement officials testified that the law is an essential tool for enforcement and promised officials had not — and would not — use it to collect massive amounts of information, often called fishing expeditions.
Laura Philipps, a staff attorney with the American Civil Liberties Union of Vermont, said the organization still has grave concerns over how that law — 18 V.S.A. section 4218 — allows access to "the most personal and private information about us."
"If Vermont State Police were asking for complete prescription records of every Vermonter who has been prescribed a drug with street value — without individualized suspicion — pharmacists were absolutely right to express concern," she wrote in an e-mail Wednesday.
Hogle said he supports the creation of the database as a way to stop the spread of prescription drugs — now the leading drug-related cause of death in Vermont — from reaching the street, where they are sold illegally.
"The people gaming the system need to be stopped," he said.
Contact Daniel Barlow at Daniel.Barlow@rutlandherald.com.