So the DEA has been seizing patient records without a warrant

Some disturbing news out of Texas, but it’s apparently not limited to the Lone Star State. It seems that the DEA has been investigating so called “pill mills” to crack down on doctors getting a little too enthusiastic with their prescription pads. That’s a worthy issue to look into if it’s happening in large numbers but it comes with a built in problem. If these doctors are writing prescriptions, then by definition they must be writing them for patients. And if the DEA wants a peek at those patients’ confidential medical records they need to get a warrant.

Or do they? (Fox News)

Drug Enforcement Administration agents have been accessing personal medical files without a warrant, generating a backlash from doctors and privacy advocates who say the practice is intrusive and unconstitutional — and have taken the agency to court.

“It’s just not right,” Texas attorney Terri Moore said.

The controversial record searches are part of the government’s effort to crack down on illegal “pill mills” and prescription drug abuse. But they’ve set up a clash over privacy rights, and a legal battle is now playing out in the 5th and 9th Circuit appeals courts. Lower courts have issued conflicting rulings to date, with one backing the DEA and another demanding the agency get warrants if it wants to look at patient records.

There are two different techniques being employed by the DEA which are under examination here and they’re both bad. The first is the increasing use of administrative subpoenas to gain access to the patient records. You can read a full explanation of what an administrative subpoena is here, as well as restrictions on their use and what they are intended to capture. These are not the same as a search warrant. They’re generally used as more of an initial, background investigation of some larger, broad area of concern and can grab up records from businesses and agencies to gather information. They don’t seem to be intended to go into the personal files and papers of individuals absent probable cause, but that’s the net result of what’s going on here. Even if the feds are actually going after the doctor, they shouldn’t be accessing the health records of the patients. (And in cases like this, it’s the doctor who is the real problem, not the person getting a prescription.)

Even worse than that is the allegation that the DEA is sometimes skipping even the fig leaf of a subpoena.

Further, critics say the agency has “tricked” doctors into handing over documents by showing up with state medical board officials for searches and not identifying themselves, in turn giving the impression they’re with the board.

Mari Robinson, executive director of the Texas Medical Board, did not deny in a 2014 congressional hearing that the DEA did this on numerous occasions. She said the board often conducts joint investigations with the DEA, and “what they [DEA] do is up to them.”

That’s a pretty cavalier attitude for a government official to take when they are responsible for the conduct of the medical industry where patient privacy is part of the bedrock underlying the system. Shrugging your shoulders and essentially saying, I don’t know what the DEA does with the patient records so it’s not my problem sounds like a firing offense to me. And as far as the DEA goes, how is an agent defending the idea of tagging along with the representatives of the medical board and not bothering to mention that they were feds, followed by walking off with patient records?

I’m not saying these doctors shouldn’t be investigated. If they’re really encouraging and enabling drug addiction rather than treating actual illness, they need to have their license removed and probably spend some time in the crowbar hotel. But surely there is a better way to do this. Couldn’t each doctor’s office be required to produce total numbers of prescriptions written without including the names and medical information of the individual patients? This is beyond troubling in terms of privacy and the DEA needs to be called before Congress to explain this. In the meantime the practice needs to be put on hold until there is some clarification provided.