Privacy is an Illusion

One of the complexities of workers' compensation is that it overlays so many other laws, and one just never knows where the next challenge is going to come from.

In the latest example, the American Civil Liberties Union (ACLU) has weighed in on legal actions in Florida and Oregon addressing privacy issues surrounding the states' prescription drug-monitoring programs.

According to WorkCompCentral reporter, Michael Whiteley in this morning's news, the ACLU on June 22 filed a complaint with the Office for Civil Rights at the U.S. Department of Health and Human Services seeking an investigation and sanctions under federal privacy laws for all parties involved in the release of drug records on 3,300 people in Volusia County, Fla. The records ended up in the hands of five attorneys representing defendants in a U.S. Drug Enforcement Administration drug case.

And on March 13, U.S. District Judge Ancer Haggerty, the chief federal district judge in Oregon, gave the ACLU permission to intervene in a 2012 federal lawsuit filed last November by the Oregon Prescription Drug Monitoring Program against the DEA. The lawsuit contests the DEA's use of administrative subpoenas issued by U.S. Attorney General Eric Holder to obtain drug data on Oregon physicians and patients.

These lawsuits have national implications because every state in the U.S., except Missouri, has enacted a PDMP law.

Whiteley interviewed Sherry Green, executive director of the National Alliance of Model State Drug Laws, which has helped serve as the architect of state PDMP statutes.

According to Green, PDMPs are not considered "covered entities" under HIPAA, although the pharmacies that supply the data are covered. She said pharmacies have been considered exempt from HIPAA requirements when they supply data to the PDMPs because they are required to do so by state laws.

Green considers Florida to be an interesting test case because of the volume of privacy laws in the state and because the governor has raised privacy concerns.

In Oregon, the ACLU argues that the law requires a search warrant in every situation where the database is to be accessed.

This of course would be burdensome and ponderous, and essentially would render the PDMP useless in the control of high consequence drug dispensation.

These challenges will be very interesting to watch, in particular as some states seek funding for their PDMPs to ramp up and become more accessible.

I also find some irony in these cases - as Edward Snowden has demonstrated (rightly or wrongly), there really is no privacy in the modern world. Big Brother has been in town for years now, and we as the general public are just now coming to understand that.

And what I also find interesting about all of this privacy concern is that the curent Facebook generation, according to various media reports I have read, have no privacy concern - or at least have come to accept that nearly anyone can find out nearly anything about anybody if they just put a little work into the project.

I often get emails from injured workers involved in workers' compensation cases. Typically these cases have gone on for some time. And sometimes injured workers seek my advise, which of course I have to decline since I am not their attorney and can not give legal advise without incurring some liability.

But most of the time they are just venting their frustrations with the system, and coming to the realization that they really don't have much say in the path of their cases. Sometimes they are surprised to find their names associated with public information about their work injuries.

For instance, WorkCompCentral had received just last month a demand from one injured worker that we remove from our database a published court opinion in which he was the appellant. The injured worker got quite threatening, alleging that we had violated his right to privacy.

Of course, once a case is litigated and goes up through the appellate process, there is no privacy as to the medical conditions and facts that are recited in the published court opinion - those are matters of public record.

I may sound callous, but honestly, in this day and age, there basically is no privacy except as to what is done or said within the walls of one's own home - and as Edward Snowden suggests, even that may be an illusion.