What are PDMPs?

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A prescription drug monitoring program (PDMP) is an electronic database designed to track controlled substance prescriptions (CDC). More than a century after New York implemented the first PDMP, electronic public health surveillance has expanded to all 50 states. Practically, PDMPs track controlled substances (and some other) prescription and dispensing behaviors. These programs originally emerged as a response to the overdose crisis as tools to promote safe prescribing and limit practices like drug diversion, “doctor shopping,” and overprescription. However, their efficacy and ethical implications are contested. 

 

The Issue:

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These datasets have become more widely used in response to the overdose crisis. They are also seen as important tools to limit overprescription, problematic use, and the illegal distribution of prescription drugs.

 

Despite these strengths, PDMPs create an unusual window for the criminal legal system to surveil sensitive prescription data. Specifically, laws criminalizing medication for abortion and gender-affirming care continue to pass, in conjunction with those allowing these very medications to be surveilled via PDMPs. 

 

Many states have very limited requirements restricting law enforcement access to this data, and where they do exist, policies vary widely. This lack of standardization and low-barrier access to highly personal data carries a number of risks. For one, law enforcement surveillance of health data can negatively impact the patient-provider relationship. This is due to real or perceived threats of criminal prosecution. Patient reluctance to seek care, or reveal aspects of one’s identity, and provider hesitancy to prescribe medications, may ultimately result in patient stigmatization, lower-quality care, and worsened health outcomes. This will only worsen as states continue to adopt laws criminalizing gender-affirming and abortion health care.

 

Another serious concern is privacy violations. The lack of restrictions governing law enforcement access to PDMP data implies access to patient health data and identity information. In the context of criminalization, laws that make it increasingly dangerous to be a person seeking abortion services or gender-affirming care, this lack of privacy can have huge implications for patient safety. 

 

This can be seen in cases where prescription information about an individual’s gender-affirming care with testosterone outed individuals as transgender to their law enforcement colleagues without the individual’s consent. A previous study (summarized below) was done to identify state policies authorizing law enforcement access to PDMP data and the characteristics of those policies, particularly in states with laws banning gender-affirming pharmacotherapy.​

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Previous Research:

State policies allowing law enforcement to access testosterone prescription data through PDMPs 

 

Aims

Testosterone replacement therapy is often prescribed for men with hypogonadism and transgender males. These treatments can be life-saving, as for youths, testosterone and other gender-affirming medical interventions are associated with lower odds of suicidality. However, more states are adopting policies restricting and criminalizing gender-affirming care, especially for minors. Testosterone is a Schedule III controlled substance based on concerns about its performance-enhancing use in sports. So, testosterone prescription and dispensation are trackable through state PDMPs.

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Methods

Using the MonQcle software, state websites, and three research databases (LexisAcademic, Westlaw, HeinOnline), we identified and analyzed relevant state PDMP laws through January 2023. We extracted the following elements pertinent to law enforcement access restrictions: warrant/subpoena requirements; cross-state data exchange; unsolicited PDMP data reports to law enforcement; and PDMP query reporting requirements. States banning gender-affirming care were identified using the American Civil Liberty Union’s bill-tracking system (current as of December 2023). The number of states with bans allowing law enforcement access to PDMPs without a warrant or subpoena was also determined.​

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Findings

This study determined that all states, except for Missouri, allowed some form of law enforcement access to testosterone prescription data through PDMPs. 

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Discussion

These results indicate that testosterone prescription data through PDMPs was accessible to law enforcement without basic safeguards, such as a warrant or subpoena, in nearly half of states. This ease of access to sensitive health information raises privacy, care quality, and civil liberties concerns, especially amid the increasing number of gender-affirming care bans. In addition, a majority of states allowed cross-state PDMP data sharing between law enforcement departments, which would allow states that ban gender-affirming care to track persons seeking out-of-state health services. 

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This Research:

Open Door: Law Enforcement Access to Prescription Drug Data Across the States

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Aims

This study describes the legal landscape for law enforcement access to PDMPs and highlights areas of weakness for prescription data security. It lays the groundwork for future research evaluating the use of PDMPs in surveilling access to opioids, gender-affirming care, and abortion medications.

 

Methods

We used MonQcle, a digital software used for policy tracking and analysis to evaluate states’ PDMP laws. First, we created state profiles to organize laws related to PDMP access. Then we developed a number of questions to gather the following information: PDMP tracking of testosterone, a requirement for providers to query PDMP before prescribing, a requirement of warrants before law enforcement access, and ability for cross-state law enforcement access. 

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Findings 

Our research found that despite national consensus on Schedule III-IV drug reporting requirements, regulations regarding access to PDMP data varied largely by state.

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Law Enforcement Access by State

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Unsolicited Reports​

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Dragnet Surveillance and Sharing Requirements

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Training Requirements

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Discussion

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There is little standardization of reporting requirements across states. For example, most states impose reporting requirements for additional “drugs of concern” such as butalbital and gabapentin. Other states use more vague language, tracking additional “certain other select drugs that are not included in Schedule II, II, IV, or V” (Illinois) or “substances determined by the department to carry a bona fide potential for abuse” (Massachusetts). This lack of clear identification of which drugs are being tracked could be cause for concern for individuals seeking gender-affirming care or abortion services. These inconsistent access laws and allowance for warrantless PDMP searches by law enforcement opens the door to deploying electronic surveillance tools in the criminalization of gender-affirming care and medication abortion. 

 

This needs to be regulated by altering the class of gender-affirming care-related medications such as testosterone and by standardizing laws classifying drugs of concern. Further, ​​uniform access regulations across all states, including universal search warrant requirements, unsolicited report regulations, and transparent cross-state data-sharing pronouncements, are needed to protect vulnerable patient information and protect care-seeking behaviors.