The Drug Enforcement Administration (DEA) is fighting the war on drugs in a new theater: filing cabinets.
The agency has been caught lying about its agents’ identities to get doctors and nurses to give them access to medical files, which DEA representatives then rummage through sans warrant looking for patients and medical professionals to prosecute for drug abuse. Watchdog.org’s Texas Bureau reports:
The Drug Enforcement Administration has been sifting through hundreds of supposedly private medical files, looking for Texas doctors and patients to prosecute without the use of warrants.
Instead, the agents are tricking doctors and nurses into thinking they’re with the Texas Medical Board. When that doesn’t work, they’re sending doctors subpoenas demanding medical records without court approval.
And how often is this happening? Nobody knows! The DEA told the Daily Caller that it has issued “probably thousands” of these court-less, warrant-less subpoenas, but it doesn’t know exactly how many.
The fate of the practice is at this point unclear, because so far the only successful challenges have come at the state level in cases where state patient privacy laws are stricter than federal rules:
Early last year, a federal court in Oregon ruled the DEA could not access the state’s prescription database without a warrant. Unfortunately, this was due to Oregon’s state laws being more restrictive than federal law. A federal judge in Texas reached the opposite conclusion, finding that the DEA’s use of administrative subpoenas complied with both HIPAA and state law. This decision is now headed for the Fifth Circuit Court of Appeals, where it is hoped a finding similar to the decision in Oregon will be the end result. But judging from the laws in place, that outcome is doubtful.
In the meantime, this represents a grave privacy violation for Texans and citizens of any other state where the DEA’s “probably thousands” of investigations are underway:
The problem is this: The medical board has authority to issue “administrative subpoenas,” as they’re called, because it’s in the business of administering the medical industry. The DEA isn’t. It’s in the business of criminal investigations, which can be hindered by the Fourth Amendment.
The entire apparatus of administrative law is something of a shadow government grafted onto a constitutional system back in the New Deal era, and this shadow government has few safeguards. Rather than checks and balances, the regulatory state is characterized by agencies that handle all the investigation, prosecution, adjudication and appeals in-house, with little interference from other bodies.
In the words of former Virginia attorney general Ken Cuccinelli: “Literally, they let the DEA just go wandering through people’s medical records just to make sure laws aren’t being broken. Really? Are you serious?”