By Taylor Knopf
When the Heroin and Opioid Prevention and Enforcement (HOPE) Act came to the House floor of the General Assembly late Wednesday night, it spurred off and on debate about liberty and privacy from both sides of the aisle.
Among other things, the HOPE Act aims to give law enforcement more tools to stop the diversion of prescription pain pills to the illegal market by allowing expanded access to North Carolina’s Controlled Substance Reporting System, which tracks the identifying information of people who are prescribed opioids.
The bill creates a new felony offense for any law enforcement officer who misuses CSRS data.
But it was over just this point where some House lawmakers and many advocates, including the American Civil Liberties Union, have been hung up. The bill would give law enforcement the ability to look into some aspects of a person’s pharmacy records if they are the subject of a “bona fide” drug diversion investigation without a warrant from a judge.
Five different amendments were filed, but the bill was withdrawn and revisited several times. The last amendment came after 11 p.m. from Rep. Robert Reives (D-Sanford), when lawmakers had been debating off and on since early afternoon.
Reives’ amendment would have required law enforcement to get any judge anywhere in North Carolina to sign off before looking into somebody’s prescription records. Reives said he felt like this was a good compromise on the privacy issue.
Ultimately, that amendment failed by a vote of 48-55. The HOPE Act passed the House, but only after hours of heated debate.
Rep. Michael Speciale (R-New Bern) urged his colleagues to support Reives’ amendment, arguing the bill as originally written would spur lawsuits and lead to the loss of liberty.
“That’s how you eat an 800-pound elephant, one bite at a time. That’s how you lose your liberty, one bite at a time,” he said.
“It’s a good bill. The issue is not whether this bill is needed. The issue is not whether we have a problem because we know we have an opioid problem and it needs to be addressed,” Speciale said. “The question is, does this bill address that problem? For the most part it does, but it oversteps itself when it allows the government to look at private records without a warrant.”
Rep. David Rogers (R- Rutherfordton) said the issue can’t be left up to a law enforcement officer to determine what is a reasonable cause for a search, the standard created in the Fourth Amendment of the Constitution.
“You’re talking about digging into people’s personal medical records based on reasonable, good faith belief. But what to one officer may be reasonable, to a judge is completely unreasonable,” Rogers said.
“You have to be careful. If you keep letting these things creep through, and you realize that it’s gone too far, it’s too late,” he added.
Rep. Greg Murphy (R-Greenville), who co-sponsored the HOPE Act, explained that the CSRS doesn’t track every prescription, just “hard medications.” He also said that Reives’ amendment would “weaken the bill substantially.”
“These are opioids and those limited prescriptions that are apart of this entire process,” Murphy said.
“One of the problems we are having with this is the fact that we have gangs that are coming in from other states, literally blanketing the state, coming in with fraudulent prescriptions, blanketing pharmacies, getting these drugs and quickly moving out of state,” he said. “The problem is now, as law stands, it takes five to seven days to get a judge to sign off on something.”
Murphy noted that the HOPE Act has the support from Attorney General Josh Stein.
“This was vetted by the Department of Justice. They felt that it wasn’t an intrusion, but something law enforcement needed,” Murphy said.
Rep. Joe John (D- Raleigh), a retired judge himself, said this part of the bill is “clearly an attempt to try to circumvent the search warrant requirement, which we’ve done for years and years and years and years in the courts of this state.”
“I’ve spent a good number of years in the courts,” John said. “I’ve signed hundreds of search warrants, signed them at three o’clock in the morning and many different times during the day.”[sponsor]
Bill co-sponsor Rep. Craig Horn (R-Weddington) gave a passionate speech about the death tolls of the opioid crisis and the need to act now.
“This is chapter two of what will be a lengthy book. The work on this will continue and we will learn as we go. That’s how the legislative process works,” Horn said.
“Let’s face facts, more people are dying in North Carolina from prescription drug abuse than are dying on our highways from car accidents,” he said. “I don’t think any of us ever dreamed a time like that would come.”
Other provisions of the HOPE Act
The HOPE Act is seen as an extension of the STOP Act, a key piece of opioid legislation passed last year limiting the number of prescription painkillers that can be given for acute pain.
The act creates felony sentencing for first responders or home health workers who steal a patient’s medication or dilute it.
Additionally, the bill clarifies the laws regarding fentanyl, a drug that is typically used, for instance, to treat breakthrough cancer pain or end of life discomfort. Heroin and other drugs laced with fentanyl and other synthetic fentanyls have caused much of the increase in opioid-related deaths.
The bill also comes with the promise of $10 million slated for the 2019-20 budget to enhance community-based addiction treatment. It would also give funding for more naloxone for law enforcement and the state’s drug-takeback program.