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Privacy Protections and Prescription Drug Monitoring Programs

posted on Thu, Apr 6 2017 2:08 pm by The Network for Public Health Law

A healthcare provider from Rhode Island recently contacted the Network for information on the differences, if any, between privacy protections for pharmacy records and prescription drug monitoring program (PDMP) records in law enforcement investigations.

PDMPs are state-run databases that track the dispensing of controlled substances. Pharmacies and other dispensers submit information related to dispensed controlled substances where it may be accessed by individuals and entities authorized by law to receive it.

The Network’s research found that there is in fact a difference in levels of privacy protections between pharmacy records and PDMP information in Rhode Island.

Pharmacy Records

Unlike courts in some other states, the Superior Court of Rhode Island has held that a criminal defendant has no expectation of privacy in his pharmacy records because such records were produced “by medical personnel for their use in providing medical treatment [and they] were not defendant’s personal papers created or kept by him.” State v. Underwood, 1999 WL 47259 at 4 (1999) (citing State v. Guido, 698 A.2d 729 (1997), in which the Supreme Court of Rhode Island declined to extend privacy protections to hospitals’ medical records). The court reached this conclusion based in part on R.I. Gen. Laws Ann. § 21-28-3.17, which states that all records kept under the provisions of the Rhode Island Uniform Controlled Substance Act "shall at all times be open to inspection by the director of health" and R.I. Gen. Laws Ann. § 21-28-5.01, which provides that it is "the duty of all peace officers within the state, and of all prosecuting officers, to enforce all provisions of this chapter [...]." Therefore, according to the court, patients don't have a reasonable expectation of privacy in their pharmacy records, and no search warrant is needed to access them.

PDMP Records

In contrast, the language of the PDMP regulations makes it clear that a law enforcement officer must obtain a warrant before accessing information on the database: 31.2 R.I. Code R. §1:3.3(a)(3) (2014). Therefore, in Rhode Island, PDMP data is harder to obtain and more private than other pharmacy records.

Network attorneys are available to answer questions on this and other public health topics at no cost to you, and can assist you in using law to advance your public health initiatives. Contact a Network Attorney in your area for more information.