COMMUNITY PRACTICE

Don't ask, don't tell with drug seekers—Yes or No?

The issue of whether pharmacists should share information about suspected drug seekers is heating up as pharmacy boards ponder how to protect patient confidentiality and avoid legal liability.

The Arizona pharmacy board was recently advised by the state attorney general's office that the pharmacy practice act does not authorize the board to share alleged prescription drug fraud and that patient confidentiality statutes address patient confidentiality as it relates to pharmacists, said Llyn Lloyd, pharmacy board executive director. As a result, the board dropped out of a fax network sending alerts about suspected illegal activity. He added that the board decided "to err on the side of safety."

The Washington pharmacy board lost a court case involving a pharmacist who investigated the local sheriff as a drug seeker and turned over the evidence to the police, according to Donald Williams, executive director. The pharmacy board also investigated the sheriff, but the evidence was later disallowed because there was no search warrant.

"The patient sued the board and won at the lower court level, but we have appealed," said Williams. "He also sued the pharmacist and the pharmacy, but this has not come to trial. Also, there is a federal case pending against us. We are advising pharmacists to be careful until this case is over."

The Washington pharmacy board's interpretation of state law permits an R.Ph. to inquire whether another pharmacy is also filling scripts for a patient in order to avoid duplicate therapy, said Williams. The pharmacist could also contact prescribers to advise them that a patient is getting Rxs from other prescribers. He added, "We do not believe our law would authorize a fishing expedition to try to identify criminal activity. Pharmacists are not cops."

The Minnesota pharmacy board was advised to steer clear of tracking suspected drug abusers several years ago, said executive director David Holmstrom. And Oregon's pharmacy board dropped its monthly drug alert two years ago, said executive director Gary Schnabel, R.Ph.

"Our assistant attorney general was very concerned that a state agency would publish unsubstantiated derogatory information about citizens," Schnabel said. "I think the concern was more about the risk of liability for distributing libelous information than about the risk of violating patient confidentiality. Violating confidentiality would not include individuals trying to pass an altered or forged prescription. Would it apply to an attempt to fake an injury to get narcotics? I'm not sure where that line would be drawn."

Suspected doctor shoppers pose a different dilemma, said Chuck Young, executive director of the Massachusetts pharmacy board. He said that there may or may not be a relationship with a patient seeing multiple prescribers because "one of those prescriptions presented is probably legitimate, but which one?"

While other pharmacy boards have shied away from alerts, Mississippi's board is forging ahead. Executive director William Stevens said a task force is working with the attorney general's office to study an Internet system to identify drug seekers.

Pharmacists can share informa-tion and participate in hotline networks because there is no patient-pharmacist relationship when someone is illegally seeking drugs, said David Brushwood, R.Ph., J.D., an attorney and professor of pharmacy healthcare administration, University of Florida. However, the information shared must be objective. It's OK to say that a 50-year-old white male presented a prescription for OxyContin 40 mg under the name of Joe Jones from Dr. Bill Smith. What's not OK, he said, is referring to "a 50-year-old slob who came into the pharmacy and tried to divert OxyContin. His name is Joe Jones and he causes a lot of trouble."

Pharmacists should not lose sight of the needs of patients who may be driven to multiple doctors by inadequate pain control, said Brushwood. "It is important not to confuse drug-seeking behavior with relief-seeking behavior," he said. "Undertreated pain is an epidemic in our country. Obviously, if the pharmacist knows a person is diverting controlled substances, then the pharmacist should notify the police. But if the pharmacist merely suspects this, then the pharmacist should investigate further. Generally, the police will do more harm than good."

Avoiding ethical and legal land mines makes a tough job even tougher for pharmacists who are caught "smack dab in the middle" of escalating confidentiality regulations, said Young of Massachusetts. "I suggest that if pharmacists have questions about what to do in these circumstances, they should immediately seek guidance from their board of pharmacy."

Carol Ukens

Carol Ukens. Don't ask, don't tell with drug seekers—Yes or No?.

Drug Topics

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