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Margolis: why the prescription drug database issue will be back— next session and this campaign sea by e55he swrzsnb

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Margolis: why the prescription drug database issue will be back— next session and this campaign sea by
Article Posted: 11/17/2013
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Margolis: why the prescription drug database issue will be back— next session and this campaign sea

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It s an epidemic. Or perhaps it isn t. It s killing Vermonters. Probably, but nobody knows how many. And it has several Vermont office-holders starting with Gov.Peter Shumlin in such a tizzy that they re attacking oneanother.

Not that there s anything new about politicians attacking oneanother. Republicans and Democrats do it all the time. But thisspat does not pit Democrat Shumlin against his Republican opponent,Sen. Randy Brock of St.

Albans. They re on the same side. This isDemocrats versus Democrats, basically Shumlin and the Senateagainst the House leadership. Though the details are complex, the basics are simple: someVermonters are addicted to prescription drugs, and are getting themby illegal acquisition, theft, or various forms of chicanery. By common consent, this is a serious problem, and the state hasbeen dealing with it, both by expanding treatment through theHealth Department and beefing up law enforcement.

In the recently concluded legislative session, lawmakers agreed onseveral provisions of a comprehensive bill that would make it moredifficult for people to circumvent the security restrictions of theprescription drug system. But on one item, they could not agree: whether the police should beallowed entry into the Vermont Prescription Monitoring System(VPMS), which records information on all prescriptions of Class 2,3, and 4 drugs, without first getting a warrant. The Senate wanted to give law enforcement that power. The House didnot. The two sides could not reach agreement.

The result? No billat all, and one very angry governor. Those who didn t pass the bill will regret it, and will be backnext January perhaps more ready do the right thing. Shumlin saidin his last-day remarks to the Senate. He added that prescriptiondrug abuse was so pervasive in Vermont that probably no one inthe state did not have a family member, friend, neighbor whosehome, car, or business had not been robbed by those who areaddicted. A few days later, Shumlin was even harsher.

Directly targeting the House leadership, (though not naming Speaker Shap Smith),Shumlin said, "The fact that the House didn't agreewith the Senate version of that bill, I think, is inexcusable. Ithink Vermonters will die because of it. The governor, said his spokesperson, Susan Allen, feelsstrongly about the matter. When politicians feel strongly, theytend to speak hyperbolically.

Actual data would indicate that in astate where burglary and most other crimes are on the decline,relatively few Vermonters have been impacted by prescription drugabuse, even with their friends, relatives and neighbors included. Among the kinds of crime that are becoming less frequent is asit happens prescription drug abuse. According to the stateHealth Department, the prevalence of prescription drug misuse inVermont is declining or remaining steady for all drug categories. The Health Department s latest figures, based on 2009 research bythe federal government, indicates that 4.6 percent of adultVermonters used prescription drugs improperly.

That s a smallpercentage, but it s more than 23,000 people. Or is it? When it comes to prescription drug abuse, opinions arefirm but data are murky. That 4.6 percent figure, for instance,includes people who have (improperly) used a prescription drugonce as well as people who have a more serious problem, saidBarbara Cimaglio, the deputy commissioner for Drug and AlcoholAbuse Programs. So the total includes the guy who hurt his back one day and usedthe prescription painkiller his wife got when she had her toothpulled as well as the young tough breaking into a pharmacy to stealprescription drugs or into a home to steal money so he can buy thedrugs on the black market.

And while the young tough is a danger to the people whose home heburgles, his situation is not really relevant to the controversyover whether the database should be searchable without a warrant.He s not gaming the state s prescription drug system. Accordingto Public Safety Commissioner Keith Flynn, those street-cornerpurchases are probably (though here, too, the data don t reallyprove the point) the way most Vermont prescription drug abusers gettheir goods. If that s the case, the VPMS and the squabble overwarrants applies to only a minor portion of the state s drugabuse problem. Cimaglio said many abusers in Vermont are otherwise law-abiding,respectable, usually middle-aged, people who grew dependant onpain-killers legally prescribed for them after injury or surgery.Some of them then do try to circumvent a system by getting friendsor relatives to feign injury or illness so they can get painkillersprescribed, or by doctor shopping, trying to get duplicateprescriptions from several doctors.

These cases might show up on the VPMS database. On the other hand,these middle-aged people are probably not among those breaking intostores or houses. They may be among those buying drugs on thestreet corners, often from gang members who come to Vermont fromsouthern New England or New York. The data don t really support though they don t conclusivelyrefute Shumlin s prediction that Vermonters will die because the Legislature didn t pass the bill. Vermonters do diefrom drug abuse.

More than 100 died last year, but Public SafetyCommissioner Keith Flynn said it was impossible to determineprecisely how many died solely or even primarily from misuse ofprescription drugs. Of the 108 Vermonters who died of drug-related causes last year, 60were accidents, said Flynn (citing figures from the HealthDepartment s Medical Examiner s office), 18 involved illicitsubstances, though not necessarily prescription drugs. The suggestion that there will be more such deaths without allowingpolice to get into the data base without a warrant would seem tolie on the spectrum somewhere between conjecture and demagoguery. By squabbling over the warrant issue, officials convey theimpression that they believe the drug problem to be solvable by lawenforcement. They do not.

We can t fix this problem through arresting people, said Rep.Ann Pugh, the South Burlington Democrat who chairs the House HumanServices Committee. This is a public health issue. People needtreatment. Sen.

Dick Sears, the North Bennington Democrat whochairs the Senate Judiciary Committee and favors the warrantlesssearches as firmly as Pugh opposes them, agrees. A bill hesponsored this year, which did pass, provides for both stricterenforcement of gang-related prescription drug offenses and moretreatment of addicts. But both sides also agree that tighter law enforcement is needed,and even that police should be able to check the VPMS. They onlydisagree about whether law enforcement officers should first haveto get a warrant.

A lot of time the information we get from medical providers willnot be in and of itself evidence of a crime, Flynn said, andtherefore would not justify getting a warrant. Many times if weget a report (saying) this person seems to be using abnormalamount of this drug. If police could get into the system at thatpoint, he said, they might be able to help the addict before he orshe gets into worse legal trouble. Sears, upset that some critics claimed that the Senate bill wouldallow unfettered access to the VPMS, said the Senate bill wouldprovide more protection for privacy than a warrant requirement.Under the Senate bill, he said, just four specially trained druginvestigators could get access to the database, and only aftergetting a tip from a druggist or health care provider. They wouldbe liable for criminal prosecution if they broke those rules, hesaid.

But this was not enough protection for House leaders such as Pughand Judiciary Committee Chair William Lippert of Hinesburg. Warrants are regularly applied for by law enforcement when theywant to pierce the search and seizure protections of theConstitution, he said. We believe private, personal medicalrecords are an extension of the privacy expectations ofVermonters. Furthermore, Lippert said, his committee had been warned that awarrantless search would immediately be challenged in court onconstitutional grounds.

If precedent is any guide, that challenge would likely fail. Since1904, Flynn said, Vermont law has allowed any law enforcementofficer to walk into any drug store and see anyone s prescriptionfile, without a warrant, without even having to give the druggist areason. When that law was challenged, in 1992, the challengefailed, if only by a 3-2 vote. In State versus Welch, the Vermont Supreme Court agreed with theU.S.

Supreme Court that the prescription drug industry was so pervasively regulated that neither druggists nor customers hadany expectation of privacy. As Lippert pointed out, that decision predates development of thedrug database as well as congressional passage in 1996 of theHealth Insurance Portability and Accountability Act (HIPPA)designed to enhance patient privacy. It is hard to predict whetherthe court would issue the same ruling today, or whether theLegislature would vote today to give law enforcement that power tosee everyone s drug records. Though no one has taken a poll, it isreasonable to suspect that most Vermonters think they have or atleast that they should have an expectation of privacy aboutrecords that the court acknowledged "contain extremelyprivate and potentially embarrassing information." This battle is likely to be resumed next year, if not earlier, withall contestants remaking all points. With one point continuing not to be made.

Both Sears and Flynn saidoutside gang members who peddle prescription drugs are attracted toVermont for two reasons: because there are potential customershere, and because it s very easy to get guns in Vermont. Raising an interesting question: Would moderate gun control lawssimilar to those in neighboring states be as effective in combatingprescription drug abuse as allowing police to get into the VMPSwithout a warrant? Don t expect any elected official to bring that up.

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