Courtesy of U.S. Department of Justice.
It’s such a hassle getting information this way, when you can just pretend to be a state regulator.
The Drug Enforcement Administration has been sifting through hundreds of supposedly private medical files, looking for Texas doctors and patients to prosecute without the use of warrants.
Instead, the agents are tricking doctors and nurses into thinking they’re with the Texas Medical Board. When that doesn’t work, they’re sending doctors subpoenas demanding medical records without court approval.
The DEA can’t even count how many times it has resorted to the practice nationwide. A spokesman estimated it was in the thousands.
But, as a legal brief filed last week points out, lawyers for the federal government can’t find a single case in which a court has “authorized the use of such a broad array of patient information with such a sparse record as to why it needs such information.”
Earlier this year, a federal judge in Texas did just that, setting up a showdown in the 5th Circuit Court of Appeals over whether the DEA needs a reason to go rummaging through private medical records in search of pill mills and prescription drug abusers.
Without the legalese, the issue is simple: How good a reason does the DEA need to get access to medical records? The DEA doesn’t think it needs much of one.
Attorneys for Dallas-area doctors Joseph and Abbas Zadeh argue “the DEA should not be allowed to circumvent the requirements of a warrant, and should be required to show probable cause.” Failing that, they should at least have to justify their intrusions to a judge who’s acting as more than a rubber stamp.
The DEA’s practice of avoiding warrant requirements has produced this absurdity: If you have a prescription for Adderall or OxyContin, you might be safer getting your drugs on the street than through your own doctor.
Street dealers, after all, don’t keep patient records, and they’re afforded more constitutional protections than medical practitioners. That is, cops still need a warrant to search them.
In Texas, the DEA’s criminal investigators do an end run around the Constitution’s warrant requirements by getting the Texas Medical Board to order doctors to open their records.
In that 5th Circuit case that’s about to set an important precedent, DEA agents spent hours examining private medical records after tricking a nurse into believing they were with the Medical Board.
The trick was easy. Three DEA agents showed up at a Dallas doctor’s office accompanied by a medical board investigator who told the nurse “they were with the Texas State Medical Board,” according to a deposition in the case. “The other three persons along with her kept silent.”
Mari Robinson, the medical board’s executive director, testified last year in a legislative hearing that her agency does that sort of thing 20 to 40 times a year, but it took some grilling by state Rep. Bill Zedler, R – Arlington, to get that out of her.
“How many times do you show up (at a doctor’s office) with the DEA and not tell ‘em that the DEA is with you,” Zedler asked Robinson at a Sept. 24 hearing.
“I’m not sure what you mean by that,” Robinson said.
“Well, I mean that when they show up, they say, ‘We’re with the Texas Medical Board.’ Period.”
“That is what we do for our part,” Robinson said. “The DEA has its own responsibility.”
Zedler gave an example almost identical to the facts in the Zadeh lawsuit: Medical board investigators got the DEA two hours’ access to confidential medical records through misrepresenting who they were; when the doctor’s lawyer showed up demanding to see some ID’s, the party ended.
“You don’t find that an unconstitutional search through fraudulent non-disclosure,” Zedler demanded. “Did your investigators not know that they had DEA agents with them?”
There wasn’t “anything that we did” that could be unconsidered unconstitutional, Robinson answered, but she couldn’t speak for the DEA.
It turned out that each of the 20 to 40 times a year medical investigators turn up unannounced demanding to see records they’re actually working with the DEA.
The problem is this: The medical board has authority to issue “administrative subpoenas,” as they’re called, because it’s in the business of administering the medical industry. The DEA isn’t. It’s in the business of criminal investigations, which can be hindered by the Fourth Amendment.
The entire apparatus of administrative law is something of a shadow government grafted onto a constitutional system back in the New Deal era, and this shadow government has few safeguards. Rather than checks and balances, the regulatory state is characterized by agencies that handle all the investigation, prosecution, adjudication and appeals in-house, with little interference from other bodies.
The DEA has noticed how convenient it is simply to write a letter demanding all the evidence one might need. So in some cases, such as the Zadeh’s, where the initial subterfuge fails, the DEA simply writes the doctors its own administrative subpoena, even though, by its own admission, it’s looking for evidence in potential criminal cases against doctors and patients.
All too often, the doctors behave much like the telecom companies who were pressured by the National Security Administration to share customer records.
In fact, there are so few cases of doctors actually fighting back the government’s lawyers are building their argument on a case from 1950 in which regulators got access to the financial records of the Morton Salt Co.
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In 2014, a federal court in Oregon agreed with the American Civil Liberties Union that a database of prescriptions was protected by medical privacy rights, and the DEA would need a warrant to access it.
That expectation of privacy will also factor into the decision before the 5th Circuit. Unlike some privacy rights, this one is no novelty.
Arguing on behalf of the Association of American Physicians and Surgeons, attorney Andrew Schlafly points out that patient privacy dates back 2,500 years to the Hippocratic Oath, which states, “All that may come to my knowledge in the exercise of my profession… which ought not to be spread abroad, I will keep secret and never reveal.”
The 5th Circuit may not decide to impose a standard of “probable cause” on law enforcement, but any standard of evidence would be an improvement on nothing, which is what investigators apparently have on the Zadehs.
Zedler has examined volumes of secret Medical Board records under his legislative privilege, and although he’s sworn to secrecy about them, he said during the hearing the medical board had confirmed the Zadehs weren’t running pill mills, and that there was “zero evidence of non-therapeutic prescribing.”
Yet a federal court upheld the subpoenas based on vague testimony from a DEA investigator that “(i)nformation developed in that investigation indicated (that) Dr. Joseph Zadeh (and Dr. Abbas Zadeh)… may have violated” the law.
That little phrase illustrates the difference between typical law enforcement and whatever the DEA is up to here.
Cops don’t swear that “information developed.” They tell the judge what it is if they want their warrant signed.
Contact Jon Cassidy at firstname.lastname@example.org or @jpcassidy000.