Every time an American fills a prescription, a searchable electronic database record is made. This record is kept, like the paper records of a few decades ago, to allow for verification of medications dispensed in the U.S. But in the past, to access these records, enforcement agencies had to get a search warrant signed by a judge. This meant that the authorities had to have and show to the court probable cause that a specific person had broken the law. Then, electronic records, including electronic health records (EHRs) and prescription monitoring programs (PMPs), came into use, and everything changed. These records are made available to any law enforcement entity that chooses to review them, either directly or through a process called an administrative subpoena. A judge does not sign an administrative subpoena, and there is no real oversight or limit on their use. And the government has started using them extensively. The DEA was not long ago caught going through medical records stored by an EHR and used the information they found to target physicians. But this takes a lot of time and manpower; access to data is not enough if you can’t process it and glean the information you want, and that brings us to algorithms.
The United States government is usually slow to adopt new technology. There are many reasons for this, but often, it comes down to bureaucratic inertia, cost-savings, and the normal human resistance to change. That being said, federal authorities’ adoption of artificial generative intelligence has been extremely rapid. This was made possible by federal law enforcement and regulators partnering with private entities to create algorithms to screen the databases for anyone deemed an outlier. What determines an outlier? That’s a good question. One to which targeted physicians would like an answer. But despite filing Freedom of Information Act requests and several lawsuits, they have not been able to pry it from the government’s grasp. Until now. When the CDC came out with its 2016 guidelines, the federal authorities had a new metric they could apply, and they got busy. Funding was secured for the Pill Mill Doctor Project, and mass arrest operations like Operation Pill Mill Nation, Operation Snake Oil, Operation Oxy Alley, Operation Juice Doctor, and Operation Wasted Daze got rolling. The federal government then contracted with private data entities and even insurance companies to find physicians and patients to target. When your medical record goes to your insurer, it is no longer a medical record. It is now a business record and not subject to the same privacy protections.
Private internet data companies have long allowed the federal government to do an end run around the U.S. Constitution, by maintaining, and disclosing for a price, information that would require a specific warrant under other circumstances. Some companies offer the same services for medical records and information. These private companies developed proprietary algorithms to analyze the data for “evidence” of criminal activity. “Proprietary” is a very important term here. Unlike federal records, these algorithms have been immune to scrutiny or scientific validation. Federal guidelines and Federal Rules of Criminal Procedure require that scientific evidence used to prosecute someone in America must be tested and validated. That is impossible if these algorithms continue to be kept secret. And the results are not benign.
After the CDC’s revisions, many states enshrined its “suggestions” into law. This led many providers to change their practices and dramatically reduce the number of patients on controlled medications they would accept. Those who took the time to learn and comply with the new regulations and still treated pain ended up seeing more and more patients. This led to many physicians prescribing hardly any controlled medications at all, while others had to prescribe even more. Federal authorities then began scanning databases to find doctors prescribing “too much” controlled substance medications. Recently acquired federal records show that the federal government did not separate out doctors still treating pain from those who did not. They also changed their algorithms so the definition of “too much” went from being in the top 5 percent of all physicians, roughly one million physicians, to being in the top 20 percent. Redefining what they would consider improper with no notification or warning to caregivers. It has been testified in court that “usually between 60,000 and 70,000 prescribers” are analyzed through a company’s Medicare project each month.
Since many doctors don’t treat pain at all, this instantly flagged every pain specialist (roughly 4,000 pain specialists) and primary care physician in the United States with a pain management program as an “over-prescriber.” And it is not unusual for bonuses to be granted if a doctor is prosecuted. If you think that’s too simplistic, it must be more nuanced, let me show you a DEA press release from a recent indictment. “Investigators analyzed prescription drug monitoring data attributed to Dr. ‘X,’ and the investigation revealed Dr. ‘X’ was an over-prescriber of controlled substances …” This assumption was made without any consideration of the severity of the illnesses the doctor was treating. Physicians willing to treat patients with cancer or patients who have been on high-dose opiate therapy for decades, while clearly benefiting society, are instantly branded “over-prescribers” and prosecuted. But it’s even worse than that. A FOIA release by the government recently showed that federal authorities are also factoring in not just assets and income but also race, political affiliation, and whether or not you own beachfront property, a boat, or an airplane. And it gets even darker. In an eight-hundred-and-thirty-five-page records release in the case of Neil Anand et al. v. U.S. Department of Health and Human Services, the documents showed that the U.S. Surgeon General, the chief medical officer in the United States, admitted that these targeted physicians were only doing what they had been trained and taught during the “fifth vital sign” era.
In short, the government retroactively defined as “criminal” many physicians who were prescribing in good faith in accordance with their education, training, and experience. In addition, evidence pried from the government showed that medical insurance companies added the criteria of medical expense and loss of profit to the insurance company into their algorithms. If a doctor ordered lots of tests for their patients, ordered MRIs, ordered durable medical equipment, and/or especially genetic testing, they would be flagged for investigation. Once a federal agency has spent a certain amount of time and money on an investigation, it is guaranteed that someone somewhere is going to prison. Have you ever seen them stop and say, “Yes, we spent a half million dollars investigating, but we found that they’re good doctors doing what they think is best for their patients, so we’re going to apologize and drop it”? The mass arrests of thousands of physicians that followed the Pill Mill Doctor Project were based on a redefinition of good medical practice made without warning to doctors just trying to care for their patients. All the resultant prosecutions must be scrutinized in light of this newly released FOIA information.
L. Joseph Parker is a distinguished professional with a diverse and accomplished career spanning the fields of science, military service, and medical practice. He currently serves as the chief science officer and operations officer, Advanced Research Concepts LLC, a pioneering company dedicated to propelling humanity into the realms of space exploration. At Advanced Research Concepts LLC, Dr. Parker leads a team of experts committed to developing innovative solutions for the complex challenges of space travel, including space transportation, energy storage, radiation shielding, artificial gravity, and space-related medical issues.