Health Care Professionals Face Strict Repercussions for Misuse of Florida's Prescription Drug Monitoring Program

Friday, May 15, 2015
After much political wrangling and lobbying, in 2009, Florida enacted the Electronic-Florida Online Reporting of Controlled Substances Evaluation (E-FORCSE), currently codified in Section 893.055, Florida Statutes. More often, it is referred to simply as the prescription drug monitoring program (PDMP) by Florida physicians.

Since the beginning, the PDMP has been plagued with issues ranging from funding, patient privacy concerns and the legal uses of the database. All health care professionals should know and understand the PDMP. The consequences of misusing the program could be devastating, even resulting in a felony charge.


Breach of Privacy Issues of Paramount Concern.

Major concerns were expressed by Florida Governor Rick Scott and those who want to repeal the database center around the invasion of patient privacy and possible compromise of sensitive patient information.  Florida has a history of legally protecting its citizens' right to privacy, even including a specific article in its State Constitution, Section 1, Article 23, Florida Constitution. This constitutional provision specifically guaranteeing citizens of Florida the right to privacy has been interpreted by court decisions as extending to the right to die, the right to a patient and his or her family to make private decisions regarding the patient's care without State intrusion, the right to be free from government access to the patient's medical information, and many other corollary rights associated with privacy.  


Legal Uses of the PDMP Database.

The PDMP was not intended to be used for criminal prosecution or law enforcement purposes. The legislative intent is clearly stated within the statute itself. The purpose of the prescription database is to assist physicians in detecting patients who went to different physicians and obtained multiple prescriptions for narcotics to feed their addiction or to sell on the street.  

Under the terms of the Florida law, anyone who dispenses a "controlled substance" is required to report that to the Florida database. "Controlled substance" is defined as any medication listed in Schedule II, Schedule III or Schedule IV, contained in Section 893.03, Florida Statutes. See Section 893.055 (1)(b), Florida Statutes.

Pharmacies and other dispensers of medications may check the PDMP prior to filling a prescription in order to determine if a patient already has a filled prescription for the same medication from another pharmacy or another doctor. There is no requirement placed on a pharmacy or dispenser of a medication to check the PDMP first. However, it is mandatory for the dispenser of a controlled substance to report the dispensing to the PDMP, see Section 893.055 (4), Florida Statutes. There are certain exceptions when reporting to the PDMP, such as when a physician or other health care practitioner administers or dispenses a controlled substance to a person under the age of 16 years, dispensing medications within the Department of Corrections, or a pharmacist dispensing a one-time 72-hour emergency resupply of a controlled substance to a patient, see Section 893.055 (5), Florida Statutes.


PDMP Reports and Information Not Admissible in Evidence.


As stated in the act itself, the reports and the information contained in the PDMP are not admissible into evidence in any civil or administrative action against a prescriber, dispenser, pharmacy or patient relating to the matters contained in the database. Section 893.055 (1)(a), states,

"All advisory reports are for informational purposes only and impose no obligations of any nature of any legal duty on a prescriber, dispenser, pharmacy, or patient . . . the advisory reports issued by the Department [Department of Health] are not subject to discovery or introduction into evidence in any civil or administrative action against a prescriber, dispenser, pharmacy, or patient arising out of matters that are the subject of the report; and a person who participates in preparing, reviewing, issuing, or any other activity related to an advisory report may not be permitted or required to testify in any such civil action as to any findings, recommendations, evaluations, opinions or other actions taken in connection with the preparing, reviewing, or issuing such a report."

This means the information in the PDMP database cannot be used in a medical malpractice case against a physician or a pharmacist relating to incorrect prescribing, over prescribing, overdoses of patients and related issues. It also means that information in the database cannot be used against a physician, pharmacist or other health care practitioner in a Department of Health (DOH) complaint investigation or other disciplinary proceeding against that health professional's license. If you are a defense attorney defending a physician, pharmacist or other health care practitioner against malpractice allegations, violation of the standard of care allegations or administrative charges against that person's license, you should bring a motion to exclude such evidence and test money pursuant to Section 893.055 (1)(a), Florida Statutes.


Breaches of Privacy Surround History of Database.

There have been breaches of privacy of the information contained in the database since its implementation. These were attributed by the lawmakers using it and then seeking to do away with it after it had been implemented. To read an example of a PDMP privacy breach, click here.


Law Enforcement Agencies are Restricted in Accessing PDMP.

Law enforcement agencies are prohibited from direct access of the information in the PDMP.  However, upon a valid, authorized request, certain information may be released by the PDMP program manager. Additional disclosures of the information contained in the PDMP for law enforcement purposes are set forth in Section 893.0551 (3), Florida Statutes. There are procedural safeguards that are required in order to ensure that the request is from a properly authorized official and is only used for appropriate purposes. See Section 893.055 (7), Florida Statutes.  


Privacy Protections for PDMP Set Forth in Section 893.0551.

A separate Florida Statute was enacted exempting the PDMP and its information from the public records. Florida has broad laws allowing the release of public records to requestors. These are set forth in Chapter 119, Florida Statutes, and Article I, Section 24(a), Florida Constitution.


Accessing PDMP Information Without Proper Authorization is a Felony.

It is illegal for any physician, pharmacist or other person to access or obtain any confidential information from the PDMP, except as specifically authorized by the statute. Section 893.0551 (7), Florida Statutes states, "A person who willfully and knowingly violates this section commits a felony of the third degree, punishable as provided in [Florida Statutes]."

If you are a physician, and you obtain information from the PDMP on a person who is not your current patient or for uses other than treatment of the patient, you have committed a felony. If you are a pharmacist, and you access or obtain information from the PDMP on someone for whom you are not currently filling a prescription or dispensing a medication, you are committing a felony.

Just because you have access to the PDMP does not mean that you have the right to snoop into it. You may not obtain information on your ex-spouse, ex-spouse's current spouse or significant other, your significant other, your neighbor or your business partners. There have been a number of cases since the implementation of the PDMP where these situations arose. Violation of the PDMP's requirements for accessing and using its information can also be ground for discipline against a licensed health professional's license, whether a physician, dentist, nurse practitioner, physician assistant or pharmacist.  


Comments?

Do you regularly use the PDMP/E-FORCSE? Did you know the consequences for misusing the system are this severe? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


About the Author: About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.


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By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law 5/15/2015

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