The federal Centers for Disease Control and Prevention (CDC) has requested funding to bolster state prescription drug monitoring programs (PDMPs) by linking them to electronic health records (EHRs) and linking both to law enforcement. The purpose is “to improve clinical decision-making and to inform implementation of insurance innovations and evaluation of state-level policies,” according to the Congressional Justification (CJ) (the narrative supporting an agency’s budget request). “In addition, the increased investment will support rigorous monitoring and evaluation, and improvements in data quality, with an emphasis on delivering real-time mortality surveillance,” the CJ says. “CDC also will scale up activities to improve patient safety by bringing together health systems and health departments to develop and track pain management and opioid prescribing quality measures in states with the highest prescribing rates.”

The CDC will also join with the Department of Justice, according to the CJ, for the purposes of making PDMPs more widely used “for clinical decision-making.”

By linking insurance strategies to PDMPs, there is a risk of “creating a much larger field of information to be mined by law enforcement, insurers and others,” said H. Westley Clark, M.D., former director of the Center for Substance Abuse Treatment at the Substance Abuse and Mental Health Services Administration (SAMHSA), in an email to ADAW. “The objective,” he said, “is to link PDMP data to health outcome data, and to trigger alerts within the PDMP system to identify high-risk patients.”

The databases of physicians writing prescriptions for opioids and pharmacists filling them will be a “gold mine” for law enforcement, said Clark, who is a lawyer. Of particular concern are patients in treatment with methadone in opioid treatment programs (OTPs), which do not currently have to input data into PDMPs thanks to a “Dear Colleague Letter” written by Clark when he was at CSAT (see ADAW, Oct. 24, 2011). “How can these data not be of interest to federal and state law enforcement? Even if the PDMP data are hearsay, the investigations launched as a result of PDMP data will be enough to discourage physicians to prescribe for pain and for OTPs to question the utility of participating in PDMPs,” Clark said.

Creating confidential informants

Clark added that law enforcement can also use information from PDMPs and electronic health records to create confidential informants against physicians and pharmacists — people who were illegally selling their prescriptions, and cut a deal with law enforcement to ensnare the prescribers and dispensers. “Some would see this as a good thing,” he said. “But others would wonder if further converting the medical record into a chess piece on a criminal justice game board is a wise thing to do.”

Through PDMP data, law enforcement can also elicit affidavits from prescribers and pharmacists, said Clark. “They can use those affidavits to pressure patients to identify buyers and sellers of their drugs,” he said. “Deals will be made, and the consequences may not be pretty.”

The CDC is asking Congress for funds so that states will “demonstrate collaboration with a variety of state entities, including law enforcement,” according to the CJ. Clark is very concerned about this, because it “pulls law enforcement deeper into the realm of health care delivery.”

If SAMHSA decides to require OTPs to input patient data into the PDMP, that is tantamount to opening up the OTPs to law enforcement. At that point, as Clark put it, there will be a “whole new ball game.”

Response from CDC, ASAM

The CDC press office declined to make a subject-matter expert available for an interview to respond to our questions. By email, we asked the CDC why it, as a health agency, is encouraging the use of health records as tool of criminal prosecution. The response came by email from Brittany Behm: “Collaborations are a vital part of building an effective program to prevent prescription drug overdoses. No single player can address all the levers that impact drug overdose prevention, and success in this work is not possible without effective collaboration with key stakeholders. This includes coordination and cooperation between public health, law enforcement, substance abuse services authorities, and other sectors to advance prevention and protect those at risk for opioid misuse, abuse, and overdose.” The “public health approach” to preventing drug overdose death by the CDC has three parts, she said: (1) improving data quality and surveillance to monitor and respond to the epidemic, (2) supporting states in their efforts to implement effective solutions and interventions and (3) equipping health care providers with the data and tools needed to improve the safety of their patients.

Finally, we asked if there is concern that curbing access to prescription opioids could have the effect of increasing heroin use, as people with addiction find their supply cut off or too expensive. “There is no evidence that PDMPs lead to heroin use,” Behm said.

We also asked Stuart Gitlow, M.D., president of the American Society of Addiction Medicine (ASAM), to comment on the CDC’s proposed expansion of PDMPs. “ASAM supports PDMPs as a methodology of reducing the potential of diversion and misuse,” he told ADAW in an email. “We do not, however, support the intersection of medical and law enforcement information and therefore are extremely uncomfortable with the concept of law enforcement having access to PDMPs. From there, it would be a short step to law enforcement having access to medical records to determine if patients are utilizing illicit substances, thus placing a damper on patients and physicians having open and private conversations. Even without such access, information in law enforcement’s hands as to the medications prescribed to patients provides likely diagnostic information to law enforcement, a likely driver toward patients preferring to obtain even appropriate prescriptions through illicit means.”

For the CDC CJ, go to http://www.cdc.gov/fmo/topic/Budget%20Information/appropriations_budget_form_pdf/FY2016_CDC_CJ_FINAL.pdf.