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 the state’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 PDMP keep 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 PDMP Program Manager Michelle Ricco-Jonas, legally was 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.

New Hampshire already was one of the last states to implement a drug monitoring program. Last December, a harsh audit by the state Office of Legislative Budget Assistant found that while the program was effectively allowing pharmacists to check on patient and doctor prescription histories to single out fraud and bad actors, it was failing to provide the data necessary in order to assess and identify long-term trends. The case 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 June 13, 2018 subpoena has been directed to Ms. Ricco-Jonas in her official capacity as Program Manager of the PDMP and seeks to compel her to provide to the DEA certain information out of the PDMP that is expressly protected by state statute and would require Ms. Ricco-Jonas to commit a crime under state law,” the department wrote.

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

For its part, the U.S. Department of Justice says 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. “There is also no absurdity in subjecting the state to a subpoena,” Murray wrote. “It is entirely appropriate to subpoena a state employee for records.”

On Monday, U.S. District Court Judge Landya McCafferty ordered that Ricco-Jonas appear in federal district court 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 Tuesday, pointing out that it involves pending civil litigation. Reached on Tuesday, Ricco-Jonas also declined to comment on the particulars of the case.

And New Hampshire Assistant Attorney General Anthony Galdieri, who is representing the state, said that the New Hampshire Department of Justice could not comment until the order served by McCafferty is served to Ricco-Jonas.