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‘Privacy’ fears? Florida lawmakers use old argument against attorney general’s opioid bill

Privacy was used as an excuse by lawmakers in the 2000s in establishing a database that could be used to alleviate a burgeoning opioid crisis. Now, lawmakers are using the same excuse to prevent Florida from using the data to help its case against Big Pharma.

Ashley Moody  Florida Attorney General Ashley Moody [BRONTE WITTPENN | Times]

By Lawrence Mower

TALLAHASSEE — Throughout the 2000s, Florida lawmakers tried repeatedly to create a database of drug prescriptions to fight the pill mill crisis as it bloomed into a full-blown epidemic.

But every year for nine years, it was shot down over concerns about patient privacy. It was only when the issue escalated into a national crisis did lawmakers finally establish a database that could be used to track problem doctors and keep addicts from getting pills.

Now, Florida senators are using the same excuse they used then — patient privacy — to reject a request by Florida’s top law enforcement official. Attorney General Ashley Moody wants access to the database to bolster the state’s lawsuit against the nation’s largest drug makers, distributors and pharmacies, which could be worth billions in damages for Florida and its opioid victims.

On Monday, the Florida House passed their bill 111-0 granting her access to the Florida Department of Health’s data.

But in the Senate, Moody’s request remains in deep trouble, stranded in a committee with four days left before legislative session ends.

The extraordinary standoff, pitting Senate Republicans against their new attorney general, threatens to delay the state’s lawsuit against companies like Purdue Pharma, the maker of Oxycontin, and pharmacy giants CVS and Walgreens.

Florida is one of many states suing the companies over their roles in the opioid epidemic. If the bill succeeds, some say it could serve as a model for other states.

“This is a very significant piece of legislation,” said William Large, president of the tort reform advocacy group Florida Justice Reform Institute, and a critic of Moody’s effort. “If this passes, it will be the template for the other states to try to get the data in a civil context.”

Florida was slow to react to the pill mill epidemic of the 2000s. From 2001 to 2008, lawmakers proposed creating a key tool to help in the fight: a prescription drug monitoring program that would track doctors and pharmacies’ prescribing habits.

Many other states had such a system, and as their numbers grew, more and more people from other states came to Florida for their pills.

Other states had a drug monitoring program that helped crack down on abuse. But Florida lawmakers continued to reject adopting a similar program. As the Sunshine State became a destination for addicts, governors in other states to begged Florida to create a database.

It wasn’t until 2009 that Florida did so, and it proved instrumental in shutting down pill mills. So instrumental, in fact, that the nation’s opioid addicts that year turned to heroin, a chemically similar drug.

Today, current and former lawmakers see the same privacy argument, and some suspect it’s just an excuse to give cover for big corporations.

“They used the word ‘privacy,’ which gets people’s attention,” said former Sen. Mike Fasano, who was instrumental in getting the drug database created in 2009 and is now the Pasco County tax collector. “What this comes down to is protecting the corporations that need to be held accountable for helping to create this epidemic we have.”

Sen. Gayle Harrell, R-Stuart, tried and failed six times to get the bill passed in the House in the 2000s. She supports Moody’s effort.

“It’s the same privacy argument,” she said. “But we have learned a lot along the way. And it’s even, I think, less germane at this point.”

The database tracks all monitored drugs, from oxycodone to sleeping pills. But Moody can’t use it for her civil lawsuit. By law, it’s restricted to criminal cases and administrative actions against doctors.

It’s not Moody’s only way to get the data. She could get it from the companies themselves, through the discovery process. But the companies could drag the process out for years.

She’s asking lawmakers to use parts of the state’s own data in her civil case. She would not get patients’ names, dates of birth, sex or addresses. Each patient would be assigned a random ID number.

And she would only be allowed to get the database under a court order, and under very specific circumstances.

Behind the scenes, some of the companies being sued have lobbied lawmakers against the bill.

Publicly, however, the most vocal opponent of Moody’s bill has been Large, the president of the tort reform organization.

A Walgreens vice president is on the organization’s board, but Large said he’s is mostly opposed to the bill for philosophical reasons.

“I’m advocating against this bill because it’s an expansion of civil liability and uses a state database to prove the civil liability parts of the AG’s case,” Large said.

He also has practical concerns about the bill. He fears that each person’s “unique identifier number” will not really be unique, and that whoever gets the data will be able to decode it.

He also fears a potential data breach. While Virginia’s drug database was hacked in 2009, however, Florida’s has not been. And privacy concerns have largely centered around the fact that police were getting access to the database at an alarming rate. Lawmakers tightened the system a few years ago.

A spokeswoman for Moody dismissed Large’s concerns.

“These issues are nothing more than conspiracy theories of a high paid lobbyist of a defendant in the State’s lawsuit with no basis in reality,” Lauren Schenone said in a statement. “Experts have concluded that you are more likely to be struck by a meteor than have your privacy compromised by this bill.”

Whether the Senate will take it up this week, in the final days of session, remains to be seen. Moody has been lobbying senators herself, and met with Senate President Bill Galvano, R-Bradenton, on Monday.

But on Friday, Galvano was skeptical his chamber would take it up. The bill has to pass the Rules Committee, but chair Lizbeth Benacquisto, R-Fort Myers, has refused to hear it, citing privacy concerns. Her brother-in-law is also a lobbyist for Walgreens.

“The concerns that were raised to me were regarding the privacy of certain information, and protecting certain information from an open analysis,” Galvano said.

The bill sponsor, Sen. Tom Lee, R-Thonotosassa, thinks he has the numbers to get it passed — if it could get a hearing.

“I think there’s clearly a privacy issue,” Lee said. “And it is that there are certain pharmacies that want their information to remain private.”