Data accumulated in CURES[1] is available to appropriate state and federal agencies, law enforcement, and regulatory boards for disciplinary, civil, or criminal purposes. But when should CURES be reviewed for such purposes? When a government suspects overprescribing? May it be used against a prescriber or a pharmacist when no controlled substances are involved in the underlying disciplinary, civil, or criminal case? California Supreme Court answered these questions yesterday in a case challenging actions of the Medical Board of California when it obtained data from CURES during a disciplinary investigation not involving controlled-substances.[2]

In Lewis case, Medical Board began investigating Dr. Lewis based on a patient’s complaint unrelated to prescribing controlled substances. While the Board found no issues with Dr. Lewis’ treatment of the complaining patient, it did discover instances of improper prescribing by accessing and reviewing CURES. Dr. Lewis argued that the Board had violated his patients’ informational privacy rights in their controlled substances prescription records when it obtained them without a justifiable reason.

Dr. Lewis argued that the Board must obtain a warrant or an administrative subpoena demonstrating a good cause prior to searching and reviewing the records of his patients. The court of appeal decided – on balancing patients’ right to privacy against state’s interest in protecting public health – that state’s practice of reviewing CURES to pursue an individual does not amount to an impermissible invasion of patients’ state constitutional right to privacy, as there are sufficient safeguards to prevent unwarranted public disclosure and unauthorized access to CURES data. California Supreme Court affirmed holding that Medical Board didn’t have to show good cause to access the database because that would hamper efforts to prevent abuse: “Delays … would impede the board’s ability to swiftly identify and stop dangerous prescribing practices.” The decision does not come as a surprise at a time of a nationwide epidemic of opioid abuse.

Note: Louisiana Supreme court also tackled a similar issue – but in a criminal context – and held that the Fourth Amendment requires a search warrant before a search of prescription and medical records for criminal investigative purposes.[3]

The 9th U.S. Circuit Court of Appeals weighed in on a related issue when it said the DEA does not need a court order to subpoena Oregon’s prescription drug database. The case ultimately did not resolve whether DEA’s administrative subpoenas violate constitutional protections against unreasonable search and seizure.

[1] Controlled Substance Utilization Review and Evaluation System (CURES) is California’s Prescription Drug Monitoring Program (PDMP).

[2] Lewis v Superior Court of Los Angeles County, 226 Cal.App.4th 933 (2014).

[3] State v. Brock, 210 So. 3d 276, 277 (La. 2017), State v. Skinner, 10 So. 3d 1212, 1218 (La. 2009)