In Satellite Beach, Florida the city council is preparing to pass ordinances that will control the business operations of newly established pain clinics. While not criminal in nature, these ordinances will call for implementation of accounting procedures that will provide police with daily reports regarding prescriptions, dosages, and the states of residency for patients treated. Clinics who fail to comply will likely face fines and the possibility of losing their operating license.
While these ordinances are well intentioned, they may not be lawful if they include patient names, addresses, social security numbers, or other such personal data. Specifically, these ordinances may violate the Health Insurance Portability and Accountability Act (HIPAA). Enacted by the U.S. Congress in 1996, HIPAA protects patient health information from disclosure to third parties.
If the new law does not require clinics to disclose the names and biographical information of patients, what value does the ordinance have to law enforcement? If police do not know who has received the pills in question, what good is knowing that pills were dispensed? For this information to have any value to law enforcement, names will need to be submitted.
On the other side of the token, if police did know the names of patients treated, what good would that do anyway? Receiving pain medication pursuant to a valid prescription from a pain clinic is not illegal.
Maybe police intend to cross reference the names received from different clinics to identify doctor shoppers. If this is true, the City of Satellite Beach is setting itself up to be the epicenter of some major constitutional challenges. While their intentions are good, city governments cannot circumvent constitutional protections against illegal search and seizure simply by passing zoning ordinances.
The truth of the matter is that the pain pill epidemic has no cure under existing criminal laws. Zoning ordinances are a poor substitute because they lack the utility and enforceability to truly control sham prescription writing.
However, there are two strategies that can be employed to curb this epidemic. First, the Florida Legislature could finally man-up and pass legislation that means something. For example, as has been blogged on this site in the past, the Legislature should create a digital prescription database accessible by doctors and pharmacists over the internet.
When a doctor prescribes pain medication, he or she will enter the prescription electronically to a State-run website only accessible by health care providers and pharmacists. When a prescription is to be filled, a pharmacist will look up the prescription online to see if it is valid before the medication is dispensed.
By using the same security features as online banking, unauthorized access could be controlled. Moreover, when a pharmacist checks the prescription online, he or she will also be able to determine if the patient has been doctor shopping by having the prescription in question filled at another pharmacy. Using a system that updates in real time will ensure this.
By using simple computer technology, we could curb a HUGE portion of the pain pill epidemic overnight. This system would immediately put and end to most fraudulent prescription writing and doctor shopping with little effort.
To fund the system, the State could levy a very small tax on patients. I know health care reform is a hot topic these days, but I am confidant that 99% of the patient world could pay a $2 tax per monthly pain pill prescription filled. That’s less than a pack of cigarettes or a value meal at McDonald’s.
The second way to curb the pain pill problem would be to challenge the medical necessity of the prescriptions. As a criminal defense lawyer I hear clients talk about how easy it is to get pills every day. Anyone with half a brain knows the pain “doctors” aren’t making legitimate medical decisions when they give healthy, able bodied, 20-something year olds enough pain pills to medicate a herd of elephants for a month.
The Attorney General needs to start building cases against these sham doctors. This could start with investigations into the 5 people a day who die from prescription drug overdoes throughout the State. It should be handled like a malpractice lawsuit with a criminal edge. At the very least, these investigations could be used to yank the licenses of unscrupulous doctors.
At the end of the day, city ordinances are not the answer. They lack the tools and the teethe needed to put a real dent in this epidemic. In order to make effective change, our Legislature will have to act.