ACLU, N.H. Medical Society File Briefs to Block DEA Access to Rx Drug Records

May 29, 2019

The New Hampshire Medical Society and ACLU say the state should continue to fight a federal law enforcement request for access to the state’s prescription drug database.

The dispute stems from a subpoena issued last June by the DEA to New Hampshire’s prescription drug monitoring program, which tracks doctor and patient prescriptions for certain controlled substances.

Federal law enforcement officials are seeking access to specific records pertaining to an individual’s potentially fraudulent filing of opioid prescriptions.

The N.H. Attorney General’s office, acting on behalf of the drug monitoring program, refused to comply with the subpoena, arguing that under state statute, the DEA must obtain a warrant signed by a judge before it can access any records.

In November, a federal court magistrate judge sided with the DEA, writing in her opinion that the 

"The DEA's most concerning argument in this case is that medical patients have no reasonable expectation of privacy in their prescription records." - N.H. Medical Society

Controlled Substance Act, a federal statute that governs the use of administrative subpoenas, preempts the state’s rules regarding the release of information from the drug monitoring program.

Additionally, Judge Andrea Johnston cited related cases that found similar subpoenas involving other states’ prescription drug programs didn’t violate Fourth Amendment protections against unreasonable search and seizure because the right to privacy for these records is “not absolute.”

The N.H. Attorney General’s office appealed the case to the First Circuit Court. On Wednesday, the ACLU of New Hampshire as well as the N.H. Medical Society filed briefs in support of the state.

“The DEA’s most concerning argument in this case is that medical patients have no reasonable expectation of privacy in their prescription records. The medical community rejects this view,” writes James Potter, executive vice president of the Medical Society, in a statement.