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OMA Winter 2015 Magazine

LEGAL BRIEFING Inaction vs Mark Bonanno, JD, MPH General Counsel, Director of Health Policy [email protected] Medicine in Law Oregon Prescription Drug Monitoring Program v. Drug Enforcement Administration By Mark Bonanno, JD, MPH, Oregon Medical Association LIKE MOST STATES ACROSS THE COUNTRY, Oregon maintains a prescription drug monitoring program (“PDMP”) that essentially is a staterun IN ACTION electronic database of prescriptions filled by pharmacies. The database was intended to promote public health and improve patient care by allowing prescribers and pharmacists to better manage the appropriate use of prescription drugs. Concerns About Unfettered Access In 2009, when the Oregon legislature passed the law to set up the database, it was concerned about unfettered access to the data by law enforcement agencies. As a result, it built a safeguard into the law to require that such access be limited to requests from enforcement agencies that followed a rather high legal requirement of using a court order based upon probable cause. That is, the agency would need to demonstrate, and a judge would need to agree, that the request was valid and tied to an investigation of an individual. Oregon Seeks Clarification in Federal Court On multiple occasions, however, the Drug Enforcement Administration (DEA) has tried to use its own administrative subpoena power under federal law to gain access to the database. Oregon sued in federal court to ask a judge whether the state needed to comply with federal DEA subpoenas. Before deciding that issue, the American Civil Liberties Union (ACLU) intervened in the case on behalf of a few patients and a physician and argued that the DEA subpoenas violated the Fourth Amendment that bars unreasonable searches and seizures. The judge agreed with the ACLU. The DEA appealed that decision to the Ninth Circuit Court of Appeals. OMA Files Brief, as Friend of the Court Because the OMA was concerned about the potential re-purposing of the database away from a public health tool toward a law enforcement tool for federal agencies, it filed an amicus brief (“friend of the court brief”) to let the court of appeals know more about patient and physician interests and why PDMPs should keep their focus on public health purposes. The OMA was not saying the DEA should be barred from access to the database, just that it should honor state law and base its requests for information on the legal standard of probable cause. Eight other west coast state medical associations (which would encompass all the states in the Ninth Circuit) and the American Medical Association’s Litigation Center signed on in support of the OMA’s amicus brief. The Ninth Circuit will review the case and likely make a decision in 2015.  The OMA was not saying the DEA should be barred from access to the database, just that it should honor state law and base its requests for information on the legal standard of probable cause. You may read the full OMA Amicus Brief on Oregon's Prescription Drug Monitoring Program at www.theOMA.org/Brief.  We understand the difference The Litigation Center of the American Medical Association and the State Medical Societies fights to protect doctors and uphold the highest standards of patient care. In courtrooms across America, we are achieving legal victories that preserve the rights of physicians, promote public health and protect the integrity of the profession. Whether we are challenging managed care organizations’ payment practices or preserving the autonomy of the hospital medical staff, one thing remains constant: The Litigation Center is an active force fighting for physicians’ rights. Learn more on how The Litigation Center can help you: www.ama-assn.org/go/litigationcenter Membership in the American Medical Association and the Oregon Medical Association makes the work of The Litigation Center possible. Join or renew your memberships today. The AMA Litigation Center is proud to have Oregon Medical Association Executive Vice President/CEO Jo Bryson serve on its executive committee. www.ama-assn.org www.theoma.org 20 Medicine in Oregon www.theOMA.org


OMA Winter 2015 Magazine
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