Scott Bowles' daily regimen of prescription drugs is pictured March 6, 2013, in Van Nuys, California. USA Today's Bowles had a kidney and pancreas transplant to treat his juvenile diabetes. He kept a journal of the experience, which ran as a series in the newspaper and in his book, "The Needle and the Damage Done." (Robert Hanashiro/USA Today/MCT) MCTIn letters to 14 pharmaceutical companies, two congressmen said they’re investigating “the recent staggering price increases for generic drugs used to treat everything from common medical conditions to life-threatening illnesses.”
Scott Bowles' daily regimen of prescription drugs is pictured March 6, 2013, in Van Nuys, California. USA Today's Bowles had a kidney and pancreas transplant to treat his juvenile diabetes. He kept a journal of the experience, which ran as a series in the newspaper and in his book, "The Needle and the Damage Done." (Robert Hanashiro/USA Today/MCT) MCTIn letters to 14 pharmaceutical companies, two congressmen said they’re investigating “the recent staggering price increases for generic drugs used to treat everything from common medical conditions to life-threatening illnesses.” Credit: AP file

Concord — Federal and state justice departments are set to square off in court next month over an attempt by the Drug Enforcement Administration to obtain records from New Hampshire’s Prescription Drug Monitoring Program for a criminal investigation.

In a June 13 subpoena, the DEA, in concert with the U.S. Department of Justice, asked an official leading the state program for records to assist a “criminal investigation being conducted.”

Established in 2012, the program keeps track of prescriptions written in the state, including information on the patient, dispenser, prescriber and the drug prescribed.

It is unclear why the subpoena was filed since the exact nature of the records sought by the DEA were redacted from public release. The state Attorney General’s Office was quick to push back, arguing that the subpoena, filed against Program Manager Michelle Ricco-Jonas, was legally invalid.

The approaching case presents an important test for the fledgling program, which was created as a means to keep tabs on doctors’ and pharmacists’ prescription practice in the face of the opioid crisis but has faced difficulty meeting its objectives.

Court battle emerges as the state is under new pressure to work with federal authorities.

One priority of the White House as it targets funding to fight the opioid crisis is “to ensure that states transition to a nationally interoperable Prescription Drug Monitoring Program network.” And in a July appearance in Concord, U.S. Attorney General Jeff Sessions announced the creation of a federal data analytics program to cut down on over-prescription of opioids.

While many law enforcement agencies may access the program’s database, the Drug Enforcement Administration is not one of them. The June subpoena is an attempt to do so.

But in a July 12 letter, the New Hampshire Department of Justice argued that the federal government does not have explicit permission to subpoena state governments under the federal Controlled Substances Act.

As an official employed by the state, Ricco-Jonas was exempt from a direct subpoena directly related to her work, the department argued. And by complying with the subpoena, Ricco-Jonas would be violating state law, they said.

The correct approach, the New Hampshire Attorney General’s Office argued, is to seek the information through a process outlined in state law, which would require the subpoena be filed in the state court system.

For its part, the U.S. Department of Justice argues the subpoena was legally filed and enforceable. In a 13-page petition, Scott Murray, United States Attorney for the District Office in Concord, wrote that the provisions of the Controlled Substances Act allowing for subpoenas to be served on “any person” included state employees, citing Supreme Court precedent he said supported the claim.

On Monday, U.S. District Court Judge Landya McCafferty ordered that Ricco-Jonas appear in federal district court on Sept. 26 to demonstrate why she should not be subject to the subpoena.

A representative for the U.S. Attorney’s Office in Concord declined to comment on the developing case on Tuesday, pointing out that it involves pending civil litigation.

Reached on Tuesday, Ricco-Jonas also declined to comment on the particulars of the case.