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On Tuesday, I blogged about a breaking story in Vermont: Kiss your 4th amendment goodbye: VT State Police collect medical data.  Since then, a couple things have happened:

  1. the press finally hit this, and it's broken big in Vermont's Rutland Herald;
  2. we've done some research of our own, and have learned a bit more;

After the fold, I'll summarize some of what we at GMD (Green Mountain Daily) have learned, and what we learned from the Herald article as well.

First, a very strange update from the December 6 Mark Johnson show (the url links to downloadable mp3 of the interview).  What I'm transcribing below starts about 1m10s into the audio, from Major Thomas L'Esperance, during which he stumbles through his words quite a few times.  This is after Mark Johnson asks "Major, Anthony says here that there are a number of other pharmacies."  "Anthony" refers to Anthony Otis, a Vermont pharmacists' lobbyist:

I'll have to find out more about exactly what he's saying... I'll need to speak with the people that were involved...

Johnson later interjects "you were saying earlier that this sort of practice wasn't happening and Anthony seems pretty convinced that it is." Again from L'Esperance:

It's not happened across the state.  Has it happened at other pharmacies?  Absolutely... it's not happening... uh... like the article would want people to believe...

Then later in the interview, again from L'Esperance:

Communication is the key and I just want to be sure that your listeners are at ease... Anthony describes two now.  I only have information about one.  It was a communication issue between the trooper and the pharmacist.

This was an astonishing interview.  If you listen closely enough, I think you can hear the guy flailing about in the wind.  In the context of some of the other information we've got here, this could get quite interesting.

Next, an update on the story I posted a few days ago, per Green Mountain Daily:

UPDATE: Based on confirmation from law enforcement sources, pharmacies that were approached by the State Police on Friday November 30th and from legal sources representing people affected by State Police conduct last Friday, GMD can add the following to the reporting that has occurred already.

  • The Department of Public Safety was planning last weeks pharmacy checks ("Fishing Derby Friday") for several weeks.

  • The State Police visited multiple pharmacies on Friday November 30th.

  • At least two pharmacies were told to by the State Police to turn over patient profiles for every patient who received a schedule II prescription from that pharmacy.

  • At least one pharmacy was told it would be required to update the patient profile information with the police every two weeks.

  • At several pharmacies the police merely introduced themselves to the pharmacist, gave their business cards and asked the pharmacist to call the police officer if they encountered any suspicious behavior such as indications of "Doctor shopping" or prescription fraud.

  • Late Friday, due to intense push back and complaints from pharmacists who were concerned about requests from the Vermont State Police that they reveal confidential and federally protected medical information about their customers, State Police management sent an email to all State Police involved with the pharmacy checks throughout the state instructing them to cease the pharmacy checks. After the email went out, Fish Derby Friday ceased (for now).

Kudos to Dan Barlow who published a well-balanced and thorough article about Fishing Derby Friday. - odum

Next, some choice excerpts from the Rutland Herald:

Officers with the Vermont Department of Public Safety appear to have the authority to request and search through pharmacy databases under a 1967 law. But Commissioner Kerry Sleeper told lawmakers last year they would only use that authority for specific criminal investigations.

I'll add a little context here: with respect to this specific law, legislators actually considered removing the police seek and grab provisions from the law, but were assured in testimony by state officials that the law would never be used for such a broad-based information grab.  It's that testimony that generated the report referenced in the next paragraph:

"(The law) is not used in an unfettered manner to search randomly through records looking for possible crimes," according to a Vermont Department of Health report, based on comments made by Sleeper, that was given to the Legislature in December 2006.

This testimony is documented in the VT legislature's "Report on Act 205, Sec. 3 Relating to 18 V.S.A. § 4218" (link to pdf download per GMD's archive).  Here's an excerpt:

Commissioner Sleeper reports that during his 29 years of service at DPS he is not aware of one example when law enforcement used section 4218 as a means of randomly, and without cause, examining pharmaceutical records.2...  he is not aware of any complaints or expressions of concern indicating that the sought information was improperly utilized.

Now, note: that segment comes with a footnote.  Here's what's enclosed in the footnote (emphasis mine):

Years ago, diversion investigators did occasionally conduct a general search of pharmaceutical records when they were aware that controlled substances from pharmacies were being diverted into a particular community, but did not know who the source of the drugs was or what pharmacy dispensed the drugs. DPS would argue that such access was with cause. In such cases the investigators were able to review paper records looking for a pattern that would point them to a suspect. Even then however, the investigators began their search with relevant pharmacies (i.e., pharmacies in communities affected or nearby by geographic area of concern). With the demise of paper records and the creation of HIPAA such a search is either no longer possible or extremely difficult to conduct. See... pages 7-9 for a discussion on the impact of HIPAA and the obligation of health care provider to make sure that HIPAA permits disclosure for a particular health record.

What's on pages 7-9?  Well, this paragraph for one:

In the event the pharmacist determines that HIPAA does not permit the disclosure, he/she is required by HIPAA to refuse disclosure. Since HIPAA would preempt state law in this case, section 4218 of Title 18 would not control and the pharmacist would not be in violation of section 4218 for refusing to disclose.

More from the Herald:

Calls to Sleeper's office Wednesday were forwarded to the State Police's criminal division in Waterbury. When asked about the allegations, Major Thomas L'Esperance would not directly answer if troopers had attempted to collect mass amounts of patient information.

"If they have, it was with the goal of stopping the potential spread of deadly drugs on the street," L'Esperance said.

Okay.

Let's pause for a moment.

Now let's try that again:

When asked about the allegations, Major Thomas L'Esperance would not directly answer if troopers had attempted to collect mass amounts of patient information.

"If they have, it was with the goal of stopping the potential spread of deadly drugs on the street," L'Esperance said.

So let's think about that again.

He didn't want to say whether or not it was happening, but he said, quite directly, that there was a good reason for them to be doing it.

I don't know about you, but that rings a few alarm bells for me.

So where are we with this?  We're still learning.  My own experience is that it's common for state agencies who have done something they know is going to cause them grief (even if they're sure they're justified in having done it) to release in dribbles.  It starts with "it was an isolated incident" and evolves into "it was a few isolated incidents" and eventually becomes something like "okay, we did come into all your homes and steal your puppies, but it was for a good reason" and, of course, the eventual "oh, no, we never approved the stealing of the puppies-- it was something taken on by a few subordinates at the local level."  

So, really, we don't know how extensive this was or was intended to be, but it appears as though we're at the point where we can all take a breath and get this brought in front of the legislature to get some real clarity about the law, the obligations of the state police, their compliance with both federal AND state law and push hard to make sure the legislature takes this seriously in the next session.

I don't know about anyone else, but I'm incredibly happy with the work that came out of GMD on this, not because we necessarily stopped or prevented anything, but because we:

  1. shined a bright light on actions which may very well have violated privacy rights;
  2. scooped a story several days before any other Vermont media did;
  3. alerted a lot of Vermonters and people across the country about a potential abuse of rights on the part of the police;
  4. did all this with no special equipment, money or resources: we made phone calls and sent e-mails.

In other words, anyone can do this.  

UPDATE: check out this comment below for a great analysis of the parallels between FISA and Vermont's pharmacy inspection laws.

Originally posted to juliewolf on Fri Dec 07, 2007 at 01:47 AM PST.

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