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Critics say opioid law could have unintended consequences

072217 Greg Murphy

Greg Murphy

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By Julie Havlak
Carolina Journal News Service

Friday, June 22, 2018

RALEIGH — If legislation introduced recently to address the state’s ongoing opioid crisis passes the state House in its current form and gets signed into law, local police officers will be able to view the medical records of anyone who’s been prescribed a controlled substance.

Seen as the “second chapter” of legislation aimed at cracking down on prescription opioids, the HOPE Act beefs up law enforcement’s access to patient medical records in the Controlled Substance Recording System. The bill would expand police access to patient records, letting local officials join federal and state investigators in viewing patient records on the CSRS.

The expansion targets illegal raids of pharmacies, which often happen in a “whirlwind” and end long before state officials can get a warrant. Under current legislation, it is impossible to chase them, said Rep. Greg Murphy, R-Pitt, a Greenville surgeon who’s shepherding the bill through the House.

“This act is trying to get access to these individuals who ransack pharmacies in real time so that they can be investigated and prosecuted in real time,” Murphy said. “Right now, it takes five to seven days to get a judge to say OK, and by that time these groups are in and out, done their work, and out of state already.”

The legislation unanimously passed in the Senate, is expected to pass the House, and has the support of Democratic Attorney General Josh Stein. Even so, it has stirred up an outcry among advocates of civil liberties and local organizations worried about patient rights.

“Giving law enforcement officers the power to snoop around people’s medicine cabinets without any oversight will do little to combat the opioid epidemic,” N.C. American Civil Liberties Union Director of Political Strategy and Advocacy Sarah Gillooly wrote in a statement. “Rather, it would violate the rights of innocent people and further stigmatize people with substance abuse issues, making it harder for them to receive proper treatment.”

Murphy disagreed.

“I think the fears are overblown,” Murphy said. “There are multiple levels of stringent guidelines that have to be followed before anyone can ever have access to this information.”

He added that the records could be accessed only during an active investigation, and that unauthorized access would be a Class I Felony.

“The HOPE Act focuses on smart enforcement to stop the spread of these deadly drugs on our streets. Law enforcement needs every tool at their disposal to effectively confront this crisis,” Stein said in an emailed statement, emphasizing that the act “aggressively safeguards the security and confidentiality of the data.”

Even so, law enforcement’s convenience does not justify violating the Fourth Amendment to the U.S. Constitution, Cato Institute Senior Fellow Jeffrey Singer said.

“If you need to take the time to get a warrant when you suspect a rape or a burglary or a murder is going on, then I don’t see why it should be any different when you want to find out if someone is faking an illness to trick a doctor for opioids,” Singer said. “The fact is, you’ve got a Fourth Amendment, deal with it.”

Though CSRS has existed since 2007, less than half of N.C.’s prescribers are registered on it, and of that number, only 50 percent regularly use it, said Addiction Professionals of North Carolina Executive Director Donald McDonald. The STOP Act of 2017 mandated the system’s use, but the act has yet to be enforced.

“CSRS is a powerful tool for prevention and referral to treatment and recovery, if prescribers will use it,” McDonald said. “A major concern for prescribers is that it not interfere with their day or be a time-suck. But we created it 11 years ago, and during the time period when they have not used it, we’ve experienced a nearly 300 percent increase in prescription overdose unintentional death.”

The HOPE Act would supplement the STOP Act, as the legislature looks to bolster police use of CSRS and choke the flow of illegal and legal prescription opioids. The act could backfire, though: Cutting off the flow of prescription opioids often drives lethal overdoses up, Singer said.

“If you’d like to increase heroin use and overdoses, keep on doing what you’re doing,” said Singer, who founded the largest private surgical practice in Arizona. “By focusing all of their attention on reducing the number of prescription opioids that are out there, they are just making people migrate over to more readily available and more dangerous heroin and fentanyl.”

Singer is not alone in his concerns. The N.C. Substance Use Disorder Federation also fears that the HOPE Act represents a backslide into criminalizing substance abuse instead of treating it, said SUD Federation chairwoman Karen Kranbuehl.

As well as expanding access to patient medical records, the bill increases penalties to first responders and health care providers caught stealing patients’ medication. Convicted health care providers would join child abusers as Class E felons.

“As a health care provider myself, we are given the trust by patients and the public of caring for them, and I believe a violation of that trust — in addition to a violation to the law — merits a stiff penalty,” Murphy said. “Fortunately, it’s a very, very rare occurrence, but it happens enough where we need to address it.”

The bill also promises $10 million to help communities combat the opioid epidemic, but that has not tempered the skepticism of many of the organizations dedicated to fighting the epidemic.

“It just feels like we are trying to reinvent the wheel,” said North Carolina Harm Reduction Coalition Statewide Overdose Prevention Coordinator Jesse Bennett. “Now we are allowing law enforcement to access the CSRS, which is still criminalizing substance abuse.”

Murphy says he’s already working to add a third chapter of legislation after the HOPE Act, presumably to taken up in next year’s session.

Carolina Journal News Service is provided by the John Locke Foundation of Raleigh.

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