State Databases Tracking You Through Medications

Prescription drug monitoring programs do not seem to be very effective at preventing abuse of opioids or other controlled substances. Yet PDMPs amount to a massive invasion of patient privacy, inviting unconstrained government snooping that violates our Fourth Amendment rights.

The number of states with PDMPs tripled between 2001 and 2012, from 16 to 49. These programs are aimed mainly at reducing deaths involving prescription analgesics by preventing “doctor shopping,” the practice of obtaining multiple prescriptions from different physicians and filling them at different pharmacies.

But as John Lilly, a family doctor in Springfield, Missouri, notes in the latest issue of the Journal of American Physicians and Surgeons, doctor shopping was never very common, and PDMPs do not seem to have curtailed it. According to the National Survey on Drug Use and Health, the percentage of “nonmedical” users who directly or indirectly obtained opioids through multiple prescriptions rose from 3.6% in 2011 to 4.8% in 2014.

The survey’s questions about prescription drugs changed in 2015, so the numbers for more recent years are not directly comparable. But Lilly calculates that doctor shopping that year accounted for 2.3% of prescription opioid “misuse,” a rate that fell to 1.7% in 2016 before rising to 2.5% in 2017.

“Since doctor shopping was the source of only 2.5% of misused pain medicine in 2017,” Lilly writes, “it is clear that the problem is not doctor shopping. Even with the entire country under a PDMP, this small percentage is increasing, but 97.5% of the misused opioids will never be identified by a PDMP.”

Meanwhile, deaths involving prescription analgesics continued to rise from 2011 through 2017, while deaths involving all opioids — primarily illicitly produced heroin, fentanyl and fentanyl analogs — more than doubled.

PDMPs may have contributed to that trend by deterring analgesic prescriptions and driving nonmedical users, along with some legitimate patients, to the black market, where the drugs are much more dangerous because their potency is highly variable and unpredictable. Several studies have found that PDMPs are associated with increased deaths involving illicit drugs.

The privacy cost of PDMPs is harder to measure but nevertheless undeniable. New Hampshire is currently engaged in a legal battle with the U.S. Drug Enforcement Administration, which asserts the authority to obtain PDMP information through administrative subpoenas rather than the probable-cause warrants required by state law.

Relying on the “third-party doctrine,” the DEA argues that it does not need a warrant because examining PDMP records does not qualify as a search under the Fourth Amendment. The U.S. Supreme Court has repeatedly ruled that no warrant is required to obtain information that people voluntarily share with third parties such as banks and phone companies.

But last year, the Court declined to extend the third-party doctrine to cellphone location data, noting that such information is collected automatically and “provides an intimate window into a person’s life.” The American Civil Liberties Union, joined by the New Hampshire Medical Society, argues that the logic of that decision clearly applies to information about the medications people take.

The ACLU notes that patients do not in any meaningful sense consent to the collection of their prescription records. If they seek medical treatment and it involves a prescription drug covered by New Hampshire’s PDMP law, that information is automatically added to the database, where it stays for three years.

Furthermore, the ACLU says, a patient’s prescription records include highly sensitive information that “can reveal her physician’s confidential medical advice, her chosen course of treatment, her diagnosis, and even the stage or severity of her disorder or disease.”

Letting federal drug warriors peruse those records at will not only compromises patients’ privacy; it could have a chilling effect on medical treatment, deterring people from seeking care and confiding in their physicians.

It’s debatable whether these burdens would be acceptable even if PDMPs worked as intended. Given their actual track record, the sacrifices they entail are even harder to justify.

Jacob Sullum
Jacob Sullum is a senior editor at Reason magazine.