Will Missouri’s New PDMP Limit How Law Enforcement Can Use Prescriber Data?

Missouri’s new Prescription Drug Monitoring Program (PDMP) restricts law enforcement access, but federal enforcement agencies will still be able to access the program’s data.

Missouri just became the last state to adopt a PDMP. Every year since 2005, the state’s legislature considered a PDMP bill. The legislation never passed because of concerns about privacy and law enforcement’s use of PDMP data. To address these concerns, the newly passed legislation bans law enforcement officers and regulatory bodies from accessing PDMP data.

While this will severely restrict Missouri state law enforcement officers and regulatory agencies from getting PDMP data, it will likely only have a limited effect on federal agencies. PDMP data provides the basis for a huge number of federal criminal investigations of physicians, nurses and pharmacists.

To this point, courts have allowed federal law enforcement officers access to state PDMP data, no matter the limits imposed by state law.

It is clear that a federal court can issue a warrant to obtain PDMP data. The Constitution’s probable cause requirements for warrants ease many of the concerns about privacy and law enforcement use that kept Missouri from adopting a PDMP program. However, most PDMP data is obtained without a warrant or court review.

The DEA Uses Administrative Subpoenas to Obtain PDMP Data

The Controlled Substances Act allows the Drug Enforcement Administration (DEA) to issue administrative subpoenas. Those subpoenas do not require court approval or an open court case. If an entity refuses to produce records, the DEA can get a court order to enforce the administrative subpoena. Most courts have found that the DEA has broad authority and can enforce these subpoenas as long as the information sought “touches a matter under investigation.” Every court that has ever taken up the issue has ruled that this federal authority overrides state limits on PDMP data access.

One of the reasons for these warrantless searches is that almost all DEA administrative subpoenas ask that the subpoena be kept secret to avoid tipping off the subject of an investigation. This means the parties involved don’t have a chance to argue that the PDMP data should not be turned over to the DEA.

The Fourth Amendment May Exclude PDMP Data from Future Criminal Prosecutions

Courts have generally admitted evidence from investigations based on PDMP data review without much analysis. Before the Supreme Court’s ruling in Carpenter v. United States, the law clearly established that a person had no privacy interest in information given to another party. Since the government operated the PDMPs, most courts assumed there was no privacy interest in that information.

Then in 2018, the Supreme Court decided Carpenter. That case held law enforcement officers needed a warrant to access a target’s cell-site-location data, even though a third party had the information. The majority found that the third-party doctrine didn’t work in the digital age, where technology companies know individuals’ personal information, movements and even heart rates.

After Carpenter, as we previously wrote, one federal court of appeals allowed PDMP evidence in a criminal prosecution, but might have opened the door to excluding similar evidence if PDMPs require prescriber participation. This might indicate courts are moving toward requiring warrants for PDMP access in criminal cases.

PDMPs May Fall Under the Highly Regulated Industry Warrant Exception

Even if Carpenter is read broadly to apply to PDMPs, information in those databases may still be subject to warrantless searches. The Supreme Court has created a warrant exception for highly regulated industries. There is no clear law yet on whether this exception could apply to records held by a state, as opposed to records held by private actors. Also, this exception has previously only applied to civil and not criminal actions.

This might mean that the DEA or HHS could still access PDMP data for administrative purposes, like excluding health care providers from Medicare programs, restricting DEA registrations, or imposing civil penalties, but could not use that data to support criminal prosecutions.

There are many open questions about how the DEA and other federal law enforcement and regulatory agencies can use PDMP data. What is clear is that federal law enforcement officers will still have access to Missouri’s PDMP data.

Our Health Care Litigation Practice Group will continue to monitor laws governing the use of PDMP data. Please contact Andrew Coffman or any member of Phelps’ Health Care Litigation team if you have questions or need advice and guidance.