The governor tried to kill it. Lawmakers wouldn’t fund it. Few used it.
And now, less than two years since its birth, Florida’s Prescription Drug Monitoring Program is the subject of new criticism, legal action and calls that it be overhauled — or abolished.
On Monday, the Florida Department of Health will hold a workshop in Tallahassee to discuss further limiting access to records of who writes and fills prescriptions for the most addictive drugs.
The meeting comes in response to allegations last month that medical data for 3,300 Floridians had been “leaked.” The American Civil Liberties Union of Florida demanded a federal investigation, and critics pointed to the incident as evidence that the system was fundamentally flawed and had allowed an inevitable breach of privacy.
It also proved a rare point of agreement between the ACLU and conservative lawmakers who have opposed the database for years, even as Florida gained a reputation as ground zero of a deadly prescription drug abuse epidemic.
“I think this leak by the PDMP proves it is a risk for patients,” said state Rep. Rob Schenck, R-Spring Hill. “We should do away with the whole database.”
But a closer look at the case reveals that the fault for the leak may not lie with the program.
Court records indicate that an agent with the Drug Enforcement Administration had discovered that four Central Florida doctors were victims of fraud by people using false identities and made-up symptoms so they could get drugs. The agent queried the program for names of the doctors’ patients and got about 3,300 in return. That request led to six arrests, seven people whose identities had been stolen and 63 fake names used to get fraudulent prescriptions.
The names of all those patients, including those not under investigation, were provided on computer discs to prosecutors and to the defense attorneys of those charged. They included clear warnings that the records were confidential.
But one of those defense attorneys recognized a name on the disc — fellow lawyer Michael Lambert — and gave him a copy of all the names, despite the confidentiality warning. Lambert filed a lawsuit, alleging that law enforcement should never have received information about innocent patients.
He demanded an injunction and asked the court to determine if the program is “an unconstitutional infringement upon the fundamental rights of the plaintiff and other Florida citizens.”
In a subsequent complaint to the U.S. Department of Health and Human Services, the ACLU of Florida echoed Lambert’s objections. But no one asked an obvious question: was the “leak” made by the agent who included the names on the disc, or by the attorney who gave the disc to Lambert?
“I think that anyone who gains access to this type of confidential and private information has a duty to maintain its confidential status,” said Maria Kayanan, ACLU of Florida’s associate legal director. “I don’t think the defense attorneys should have received that information to begin with.”
Lawyers are often entrusted with highly sensitive information that they’re expected to keep private, such as statements from clients, trade secrets and the identities of sexual assault victims or children.
What makes the prescription information gleaned from the database any different?
“That’s not a problem with the (PDMP) law. That’s a problem with the people,” said Pinellas Sheriff Bob Gualtieri. “Just because you have one person who may have acted inappropriately doesn’t mean the whole system is broken.”
State Rep. Mike Fasano has championed the PDMP for years. The Pasco Republican understands the recent criticism, and supports potential security upgrades, but he doesn’t doubt its future.
The database, meant to help health care practitioners and law enforcement monitor patients who are abusing drugs, has long been the subject of controversy.
The Florida Legislature approved the program in 2009 but refused to pay for it, which delayed the launch until 2011. A Tampa Bay Times investigation last year found that doctors had checked the database before writing just 2 percent of prescriptions for controlled substances. In May, lawmakers waited until the final night of the 2013 session to allocate the necessary $500,000 — out of a $74 billion budget — to keep the program alive for another year.
The number of deaths from prescription pills declined last year, but many questioned the PDMP’s contribution to that success because it had been used so sparingly. They said other efforts — most notably the aggressive crackdown on pill mills — had been more effective.
Though use of the program remains limited, a review last week by the Times found that about 34 percent more prescribers in Florida began using the program between Sept. 1, 2012 and April 30. Over the same period, 22 percent more pharmacists ran at least one query.
Fasano expects it to grow even stronger in the coming years. Schenck, the program’s most ardent critic, will leave office in 2014 when he reaches his term limit. With his absence, Fasano believes lawmakers will support legislation that allows pharmaceutical companies to help provide funding and forces pharmacists to enter prescription information into the database more quickly. Lawmakers may even discuss mandating use by doctors, at least on a patient’s first visit.
“I believe the support out there outweighs overwhelmingly the small amount of opposition to the PDMP,” Fasano said. “It’s going to survive because it’s already gone through the storm.”
Not even Kayanan disagrees with that.
“Our immediate goal is to make DOH more accountable for what is released and how it is released to law enforcement,” she said. “We’d love to see the database dismantled altogether, but understanding realities, we realize that may not be possible.”