LEWIS v. S.C. (MEDICAL BOARD OF CALIFORNIA)

Real Party in Interest, Medical Board of California, Response to Amicus Curiae Brief

Cal.December 23, 2015

In the Supreme Court of the State of Caltfornta ALWIN LEWIS,M.D., Case No. 8219811 Petitioner, V. SUPREME COURT SUPERIOR COURT OF THE STATE OF | E D CALIFORNIA, COUNTY OF LOS F | ~ Le ANGELES, Respondent, DEC 28 2015 MEDICAL BOARD OF CALIFORNIA, Frank A. icGuire Clerk Real Party in Interest. Deputy Second Appellate District, Division Three, Case No. B252032 Los Angeles County Superior Court, Case No. BS139289 The Honorable Joanne O’Donnell, Superior Court Judge MEDICAL BOARD OF CALIFORNIA’S ANSWER TO AMICUS CURIAE BRIEFS KAMALA D. HARRIS EDWARD K. KIM Attorney General of California Deputy Attorney General EDWARD C. DUMONT State Bar No. 195729 Solicitor General * KATHLEEN VERMAZEN RADEZ KATHLEEN A. KENEALY Associate Deputy Solicitor General Chief Assistant Attorney General State Bar No. 278871 GLORIA L. CASTRO 455 Golden Gate Ave., Suite 11000 Senior Assistant Attorney General San Francisco, CA 94102 JANILL L. RICHARDS (415) 703-2549 Principal Deputy Solicitor General kathleen.radez@doj.ca.gov AIMEE FEINBERG Deputy Solicitor General Attorneysfor Real Party in Interest E, A. JONES HI Medical Board ofCalifornia Supervising Deputy Attorney General TABLE OF CONTENTS Page TmtrOduction .....0..seesessseesesecsecsecesceeseeeeneecseceseesecseeeaeceaeenececsesssssenaessaeeaeeeeaess l ALSUMENLA... elec eeeceeeeeereeeeeeesesseeerseeeseessaerseeeesessceeesesecneeatesnsseseneeeeateneneeted 3 I. The Board’s Use of CURESData in Physician Disciplinary Investigations Is Consistent with the California Right to Privacy 0...eesseseeeeeeestcsseceeceseesaeeaes 3 A. The Right to Privacy is Personal and Cannot Be Asserted Vicariously by Lewis ..........:eeeeeeeeeeeeeeneees 3 B. The Board’s Use of CURESin this Disciplinary Investigation Was Not an Actionable Invasion of a Protected Interest ........ccccesccssssreeeseeeeessreeseeaes 5 1. Patients Lack a Reasonable Expectation of Privacy that CURES Data Will Not Be Confidentially Provided to the Board........ 6 2. The Board’s Confidential Receipt of CURESData Is Not an Actionable Invasion Of Privacy ........::escecceeseceeseeeeseeeeeeees 10 C. The Board’s Use of CURESSatisfies the Hill Balancing Test 0.0... .ececeesseescseseeereceeseecseceaeeeseeanesees 13 IL. Lewis Cannot Vicariously Assert a Fourth Amendment Claim on Behalf of Third Parties and Any Such Claim Lacks Merit 20.0... eee ceeeeeeccccccssscesseccesssceeccaceccerscsescesscsaneers 19 A. Fourth Amendment Rights Are Personal and Cannot Be Asserted Vicariously..........eeeeeeeeeeeseee: 19 B. Lewis’s Fourth Amendment Claim Fails on the MEits ...ceee ec ceeeecceecceessccececccscuatcesesseuccesuesesesssucsesesecens 20 COnCI]USION. 0... see eeeeeecccccccecccececeecsavsuneacseusscesessveseeececccasausssacessesteuucesssereresens 26 TABLE OF AUTHORITIES CASES American Academy ofPediatrics v. Lungren (1997) 16 Cal.4th 307ooceeee sees teeeeeeseeceeseeesseeseeseeseanite Arnett v. Dal Cielo (1996) 14 Cal.4th 4 oo..ccccccsssscsccessseccessesssesecssssssesssseessseccssnessseesens Beck v. State ofOhio (1964) 379 U.S. 89 cccccssssssssscsssssssessssverssssessesssststsssssssecsssseesssseee Bill v. Brewer (9th Cir. 2015) 799 F.3d 1295 veccsecccssecssssesssscesssesssesessevseseeveeseees Caplin & Drysdale, Chartered v. United States (1989) 491 U.S. 617 cccsssssssssesscsssseesssseesssssesessssstssessssssecsssessssessee City ofLos Angeles, Calif. v. Patel (2015)US.135 S.Ct. 2443 vooceccccseescsssneessserssteesssseeees County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905 ...cccccsccccssssessesseesssssssesssseescsesvsssesssaveesseessen Doe v. Southeastern Pennsylvania Transp. Authority (SEPTA) (3d Cir. 1995) 72 F.3d 1133 oecesses ees eeeeceeeereeeneeesenaees Douglas v. Dobbs (10th Cir. 2005) 419 F.3d 1097 ooeeecee teseseteeseeeteeeeenee Fair Employment Council ofGreater Wash., Inc. v. BMC Marketing Corp. (D.C. Cir. 1994) 28 F.3d 1268.0eeeeee ees eres edereeeerenneeeee Ferguson v. City ofCharleston (2001) 532 U.S. 67 cccsssssssssessccsssevssesseessssesesseversessssssevsssetsesssssenen Griswold v. Connecticut (1965) 381 U.S. 479ceeseecereeeeeeetteeseestesereeseaeeeeeseetaeas i Page eeeeeaseeees 3 beseseeeens 15 eseesaeeee 21 beveneeeees 15 bieeeseneeees 5 eteneeeees 23 eeeseeeaee 13 beeeeeeeees 14 seteseeeseeee 8 sceueestee 4 “ecesesees 10 seeeestateees 5 Haskins v. San Diego County Dept. ofPublic Welfare (1980) 100 Cal.App.3d 961 oo.eeeeesccccesseeseessssecrsesenseseneeeesaeenaeees 12 Hill vy. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4thLeeeeccnecssssscesesesssesersrssescesceessererenes 6, 10, 13 Illinois v. Gates (1983) 462 U.S. 213 ecccccccccsssccesssseesserseeeeeceseesaeesesseerseeeeseesaeessneeetaeees 15 In re Search Warrant (Sealed) (3d Cir. 1987) 810 F.2d 67 oo... cceeccecccscesseeeeseeeceseecesecsenesenseseeeesaeeeseeeensatees 4 In re Subpoenas Duces Tecum (W.D. Va. 1999) 51 F.Supp.2d 726 v.vcccsssssssesesssssessssssssseeseeneessesen 4,19 Internat. Federation ofProf. & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319oocccccccscceseceseesesseeceneeeeesseeeesseseseeeessineeesenegs 6 Jabara v. Webster (6th Cir. 1982) 691 F.2d 272 o.oo ececeeeseeesnceeeneceeeeeteaeessateneeeseeeeeas 21, 22 Katz v. United States (1967) 389 U.S. 347 oeeccccccscsccceeceeeneeeecneeeesetaceeneaaeeessaeecsaeeseaeeesseaeeees 21 New York v. Burger (1987) 482 U.S. 691eceeccceccssececseeeeeseceseeseneessaesesseeeeesasesseeeees 23, 24 Oregon Prescription Drug Monitoring Program v. U.S. Drug Enforcement Admin. (D. Or. 2014) 998 F.Supp.2d 957 oooeeceeeseceseedeneeeeeeeseastnettesetees 22, 23 Pagano v. Oroville Hosp. (E.D. Cal. 1993) 145 F.R.D. 683 wooo. cccceseecsceceseeeeeeeeeseecesesneeseneeesnneesaes 4 People v. Ayala | (2000) 23 Cal.4th 225 ooo. cecccccecesssecssesteceeecesterseeeeseeesseeseseaeteseesseeeess 20 People v. Bryant (2014) 60 Cal.4th 335 oo. cceceecscseeneeteeseceeetereeeeeesaeesseesneseetsenatens 19, 20 People v. Hazelton (1996) 14 Cal.4th 10] ceeeeececceeceesereeeeeeeenseesesaeeeseeeeaeseetssaeeeeeeesaes 3 People v. Maikhio (2011) 51 Cal.4th 1074... cccceesecsceseeeceeereeeesscessneerseseaeseceeensneeens 24 iil Rakas v. Illinois 439 U.S. 128 (1978) cccsssssssecsscessevseesvevssssssesessssssvevessssssesssssaseeesessssees 19, 20 Reynaud v. Superior Court (1982) 138 CalApp.3d 1 oiccceeeceseeeseeeeeesseressssessscsceseessessessesnsessaees 12 Sec’y ofState ofMd v. Joseph HMunson Co. (1984) 467 U.S. 947 Loccccccsscceseccseseeseeeseseeeeseseeesseeesaeesseeseeeaeesentesatenes 5 Skinner v. Ry. Labor Executives’ Assn. , (1989) 489 U.S. 602 woe ceeecescecesteeseeeesecteeeseetseeeeseeeeeeeeeaeceseeesseeennees 24 State v. Myers (Oh. Ct. App. 2015) 27 N.E.3d 895occcececesetseeeeeseeeesseeseeeeesaeeenatees 8 State v. Skinner (La. 2009) 10 S0.3d 1212oeeeeeeeeeeeceeeeeeeeseseseeseseseessaseeeeeeeereaeonas 8 Sterner v. U.S. Drug Enforcement Agency (S.D. Cal. 2006) 467 F.Supp.2d 1017oeeeeceeeeessecssetssssaecesaeseaeenes 4 Terry v. Ohio (1968) 392 U.S. 1 eececcccceescecsccecseecececaeesessetsesseeesneseeecenseseeeeeesatensnersaes 21 Tucson Woman ’s Clinic v. Eden (9th Cir. 2004) 379 F.3d S31 ccccsscccssesssssesssssesessvesssesssttesssssssseeesssnevees 4,9 United States v. Acklen (6th Cir. 1982) 690 F.2d 70 wo... ceecccccssecseeeceeteceseeeseeesseeeseeseeeeeeaeeeesseeeeaas 23 United States v. Argent Chemical Laboratories, Inc. (9th Cir. 1996) 93 F.3d 572 woo. eecccccscecseseceseeesseeeeinessncercesnesnteeseeeessaeeeees 23 United States v. Comprehensive Drug Testing, Inc. (9th Cir. 2010) 621 F.3d 1162 (per curiam, en banc)...eee 22 United States v. Ganias (2d Cir. 2014) 755 F.3d 125 ooo ceeccsccessessesseceneseeeseneeseseseeseaeseneersateeaes 22 United States v. Gonsalves (Ist Cir. 2006).435 F.3d 64... ccccccccecseeeteeeseeeseeseneesessectcneeserseeessas 23 United States v. Haqq (2d Cir. 2002) 278 F.3d44eecteeneteeeceneessneeesesseseseaneesseaeereas 19 iv United States v. Hassanshahi (D.D.C. 2015) —-F.Supp.3d__, 2015 WL 7303515 wee21 United States v. Hearst (9th Cir. 1977) 563 F.2d 1331 oeceeeseeececeeceeteesseeeeeeaeeeseseeeesereseneeeess 9 United States v. Joseph (9th Cir. 1987) 829 F.2d 724 ooecces cece tsteeeteneeseeeeenensetseesseeenens 21 United States v. Payner (1980) 447 U.S. 727 woeecceeccseccceseeseeeseeseesecesseaeensecnaeenaeecseeenseaeseeteneesaeess 20 United States v. Westinghouse Elec. Corp. (3d Cir. 1980) 638 F.2d 570 oo. eeeeseeeecceeeeeeeseeseeeenaneeeesseeeeeneneeneneeseeees4 Vernonia SchoolDist. 47] v. Acton (1995) 515 US. 646 occccccccesceeseesssneeeeeesseeseeeseaeeecesaeveeseeenseeseaaees 24 Whalen v. Roe (1977) 429 U.S. 589 oo eccccceccsceesseesseceeeeeceseeeecteneeesaaeseesataeseeeteaee passim White v. Davis (1975) 13 Cal.3d 757 oe. eecccccesceececesceesetceescceseeceneesesecessseneesveeeeeeeeenees 1] Williams v. Com. (Ky. 2006) 213 S.W.3d 671... .cccecccccccesecesecessecseeecsseeeeeeeeseseeeseessnesessanees 8 Woodv. Superior Court (1985) 166 Cal.App.3d 1138 woe ceeecesecsesecseeeeeeteeeesaeessseeseeeneseeaseeees 9 CALIFORNIA STATUTES Business and Professions Code § 800 occcccssccesscenscesssseeceecessececseccssesssaeceueceseeeeseseeeeesseseeaetesseesenenaes 11 § 2004 wocccececcccccssccsesssssscccscsssssscscssscscscscscscecscacsesescsesssscassesevesestscerassssesess 24 § 2220 ooo eeeesccccssssssscesceeeenscececeeesseecsesecsseessaeecceeeescnaeeseeseceseesseaeenaeesteeaeens 13 § DScece ceececescessescesseeeeesseeessseeeseenees siteeeeseeaeeeeseseeseeaeseseessesesentes 11,12 Civil Code 8 1798.24 iecccccsccssecesesseceeceesneeeeseeceseesssseceseeeeeaeeeesseaeeeeseeseaueniaeesseanees 12 § 1798S Loccctcetecceesseecceceesseeceseeessecnsceceesaeeesaeeeescesaeeceetsanesensseseeeaaes 11 § 1798.48 Lo eccccsessecsseesetecessseeceseesenceeceneceeesesecseaseeseeeeeeaetseteseetenaaeeens 11 § 1798.57 voccccccccccsescscscsscsscsccsccsscscsscscscsssecscesvsssseseeassensccasesesesssesesscsteatenes 11 Health and Safety Code S LLIGLSoeccccecssccesseecssecessseeseensesssecesecssseessesseeessersesesesaseenteeeeaes 7 SLD1O2iceccccsseccceesecccesscecessecessecesesessseeceeceeseeceseeseasensaeesseaeess 7 S LLLOS oieccecesccescereneceeseensaeeeeeeseeeeeseeeaeeeaeeseaeeecessaeeenstanecatenegs passim Stats. 1929, Ch. 216 w.ccccccccccccccscssscccsessssseeceesssseceeseesseseceeeeseeseeecsessssseeseeesees 7 Stats. 1996, ch. 738 v..cccecccsssccscccscsccccccsseseseccceesssssseseeeeeeceeeesesessseceersnesateseess 13 OTHER STATE STATUTES Alaska Statute § 17.30.2000 ...ceccccccccessscssssccceescescessescsseseeseecsscecseeeceeeseseecsneesesseesseessees 17 Colorado Revised Statute § 12-42.5-404ccccccccsssccccsseeesesssscesecessecesseesensaaaeecesesesestesesseeesaeeeeess 17 Florida Statute § 893.055 ooo eccccccccccsccescccsesseeecsaceecsessecesetensaseseseecssenaaaeeessateressseseseeneeeses 17 Georgia Code Annoted § 16-13-60. cccccccescccessecceccssseecssseeessecesseceeseeesensesseecesseseeeesseesesseseeses 17 Massachusetts General Laws Chapter 94C § 24Aocccccccsscccssnscsseeseessceceaeeeseeeceeesuecsseeseeeseseneeeeeterss 17 Maryland Code Annoted Health-Gen. § 21-2A-06 woo... ecccccccecsseessecesseecsseeneeecesseeessescecesseeeseeaes 18 Minnesota Statutes § 152.126 ooo ceccccccccessccccesssseccesssecesssseesecesaseceseeessesesseceeseeseresseeeenaseeees 18 New Hampshire Revised Statute § B18-Bib5 ooo eceeescceseesecscecnseeeecsceeeeeceecstceseassaeesueessnenseeessessesaesaeseeeats 18 New York Public Health Law GBBT cece eee ccccccssccssecsssscceccecevsnstsccceesesseessaeeccsesseeseeeeeesesessessesecstesesensneaaes 18 Oregon Revised Statute § 431.966 oo. ecececceesecssecesssscecseeecsseescessecsaecesueseaeeeeesaeeenaeeateeaeeasessas 18, 23 Pennsylvania Statutes & Consolidated Statutes Annoted 35 Pa. Stat. & Cons. Stat. Ann. § 872.9 ocecceseneceeeneeeseeeteeesteeeseenes 17 Vi REGULATIONS 45 C.F.R. § 164.512ceeeeeeeeseeeeeseeseeseeaesaecssesesseseseecsessresesesesseneesesresteseeeenes 7 § 164.520 oieeeeseeceeeeeecneeeeeeecsecseesseesseseesensassesesesseesesseessasesasseeeeeeeeaes 7 Iowa Administrative Code LP. O5THB74 oc eccccsccsccscccccccsccccceccccesececeeesevessessnessececceessessuseasessessetsaceusseesess 17 CONSTITUTIONAL PROVISIONS California Constitution Article 1 § Loiccccccccessscecccesssececesseeeceesseeceeceeessesessenaeeesseateeseeeeeneeaaeees ] U.S. Constitution Fourth Amendment ..........cccccscessessceesseeseeseeeetseceeceseeseeseaeaseareateeens passim OTHER AUTHORITIES Assem. Com. on Public Safety, Analysis of Assem. Bill. No. 3042 (1995-1996 Reg. Sess.) as amended Aug. 12, 1996.0... 13 Congressional Research Service, Prescription Drug Monitoring Reports (Mar. 24, 2014) oo... eeecccceeseeeeseeeneeetseetseeseteeseen 14 Johns Hopkins Bloomberg School of Public Health, The Prescription Opioid Epidemic: An Evidence-Based Approach (Nov. 2015)... eececsceeceeseeeeneeteneeececuesensseeeeeneesseseneeeee beseaee 14 Medical Board of California, 2013-2014 Annual Report...eee 17 Prescription Drug Monitoring Program Training and Technical Assistance Center, PDMPs Authorized and Engagedin Sending Solicited and Unsolicited Reports to Regulatory Agencies (July 2015) oo... cceccesesseceeeseeeeteeeeseesneeeeeeeeeeneeees 6 Stafford, Regulating Off-Label Drug Use—Rethinking the Role ofthe FDA (2008) 358 N. Engl. J. Med. 1427ooeeeeeeeeees 10 Rite Aid, Privacy POlicy......ccccccesccesscececceseeceeereseeeceeresseesesasenssesensaeeeeenaeens 7 Vii INTRODUCTION Petitioner Alwin Lewis, M.D., seeks to avoid professional discipline by suppressing evidence derived from California’s Controlled Substance Utilization Review and Evaluation System (CURES). Neither Lewis nor his supporting amici dispute that the Department of Justice may lawfully collect and maintain records of controlled substances dispensedto patients. Lewis and his amici contend only that the Board is precluded by both article J, section 1 of the California Constitution and the Fourth Amendmentfrom receiving this lawfully collected information without a watrant or subpoena. Neither the state nor federal Constitution imposes such a requirement. . As a threshold matter, Lewis lacks standing to assert his patients’ privacy interests in the Board’s review of CURESdata. In California, constitutional rights are personal and cannotbe vicariously asserted. The cases cited by amici all concern inapposite situations where, unlike here, the interests of doctors and patients are closely aligned. Lewis should not be able to assert his patients’ right to privacy to insulate himself from discipline designed to protect patients from substandard care. Even if the claim is properly presented, Lewis has not shown an actionable invasion of privacy underthe state right to privacy. To begin with, patients lack a reasonable expectation of privacy that would prevent lawfully collected CURESdata from being provided on a confidential basis to the Board. Controlled substances have been subject to pervasive regulation—including a requirementthat controlled substance prescriptions be reported to the State—for decades. In light of this history of government regulation, courts, including the United States Supreme Court, have concluded there is no violation of patients’ reasonable expectation of privacy whencontrolled substance records are used by regulators as provided by state law. Amici’s contrary arguments rest on the mistaken premise that CURESrecordsare the same as complete medical records for purpose ofa privacy analysis. They are not. While complete medical records may include intimate details of a patient’s life as well as personal communications between a doctor and patient in a private medical office setting, the CURESreports at issue here include only the type and quantity of a controlled substance dispensed to a patient. Patients reasonably understand that these more limited records will be accessed by regulatory agencies, like the Board, that are responsible for supervising medical practice in the State. Amici are also incorrect that the Board’s receipt of CURES data from the Departmentof Justice reflects a serious intrusion of patients’ privacy. Information sharing between state agencies is well established in state law, and the Board’s receipt of CURESdata is subject to comprehensive privacy protections. Amici’s claim that the Board’s access to CURESdata somehowreflects a “misuse” of CURESlacks any merit, as the Legislature established CURES,in part, for this very purpose. Even if Lewis and his amici have shown anactionable invasion-of- privacy claim,it still would fail because, as the Court of Appealheld, the Board’s need for real-time access to CURES outweighs any incremental intrusion of privacy arising from the Board’s receipt of CURESdata so that it maycarry out its regulatory duties. The Board’s ability to promptly investigate physicians’ prescriptions of highly regulated controlled substancesis an integral part of its statutorily conferred responsibility to protect the public from doctors who are delivering unsafe medical care. Amici speculate that Board access to CURESwill chill patients’ willingness to obtain needed medical care, but cite no evidence that such chilling has occurred over the many decadesthat prescribers have been required to report controlled substances prescriptions to the State. Amici ask the Court to impose a requirementthat the Board obtain a warrant supported by probable cause or a subpoena supported by “good cause”each time it reviews CURESrecords. There is no legal basis to require these alternatives, and their implementation would compromise the Board’s ability to promptly identify and halt unsafe medical practices that can jeopardize patients’ health and evenlives. A challenge based on patients’ asserted Fourth Amendmentrights also lacks merit. It is black-letter law that Fourth Amendmentrights are personal and cannot be asserted by someoneelse. Amici do not cite any cases in which the high court has deviated from this longstanding principle, relying almost entirely on cases addressing the unrelated question of federal court jurisdiction over claims brought on behalf of absent parties. Amici’s additional argument that the Fourth Amendment requires the Board to obtain a warrant each time it seeks to review CURESdatais inconsistent with numerous cases that make clear that one governmententity does not need a warrant to obtain information lawfully collected by another. The judgmentof the Court of Appeal should be affirmed. ARGUMENT I. THE BOARD’S USE OF CURESDATAIN PHYSICIAN DISCIPLINARY INVESTIGATIONS IS CONSISTENT WITH THE CALIFORNIA RIGHT TO PRIVACY A. The Right to Privacy Is Personal and Cannot Be Asserted Vicariously by Lewis California constitutional rights, like their federal counterparts, are “generally personal” and cannot be asserted on behalf of others except according to well-defined exceptions. (People v. Hazelton (1996) 14 Cal.4th 101, 109.) One such exception applies when a physician seeks to assert his or her patients’ autonomy interests in obtaining medical care. (See, e.g., American Academy ofPediatrics v. Lungren (1997) 16 Cal.4th 307, 322, fn. 8, 332 (lead opn. of George, C.J.).) A second exception may lie where a custodian of records seeks to assert a third party’s privacy interests in those records. (See, e.g., Jn re Search Warrant (Sealed) (3d Cir. 1987) 810 F.2d 67, 70-72.) In these cases, there is a close alignment of interests between the physicians’ and patients’ interests, and the physician has a custodial duty to maintain the confidentiality of records held in his or her possession. (AnswerBr. 17-18.) Each ofthe right-to-privacy cases cited by amicus ACLUfalls within one of these two exceptions. (ACLU 9- 10, 11-12.)' Neither exception applies here. Unlike those cases in which a physician has custody overa patient’s medical file, Lewis purports to represent his patients’ asserted informational-privacyinterest in records that were created and maintained by the Department of Justice. The ACLU presents no authority permitting a non-custodial third party to assert a constitutional informational-privacy claim.” ' See United States v. Westinghouse Elec. Corp. (3d Cir. 1980) 638 F.2d 570, 573-574 [employers as custodians have standing to assert employee’s privacyinterests in their employeefiles]; Sterner v. U.S. Drug Enforcement Agency (S.D, Cal. 2006) 467 F.Supp.2d 1017, 1026 [physician, as custodian of his patients’ records, has standingto assert privacy rights on behalf of his patients where such records were taken from his office via search warrant]; Pagano v. Oroville Hosp. (E.D. Cal. 1993) 145 F.R.D. 683, 696 [similar], overruled on other grounds by Jaffee v. Redmond (1996) 518 U.S. 1; see also Tucson Woman's Clinic v. Eden (9th Cir. 2004) 379 F.3d 531, 551-554 [considering informational privacy claim brought by physicians on behalf of their patients in patient medical records without addressing question of standing]; In re Subpoenas Duces Tecum (W.D. Va. 1999) 51 F.Supp.2d 726, 734-736, 738 & fn.6, aff'd 228 F.3d 341 (4th Cir. 2000) [similar]. * Statutory cases in which Congress specifically authorized certain third-party standing are inapplicable. (Fair Employment Council of Greater Wash., Inc. v. BMCMarketing Corp. (D.C. Cir. 1994) 28 F.3d 1268, 1278 [Title VII claim]; ACLU 10.) Similarly, the First Amendment (continued...) Lewis’s interests also diverge from those ofhis patients, as he seeks to avoid scrutiny into the safety of the care he provided them. (Answer Br. 17-18.) In cases involving alleged governmentintrusionsinto patients’ autonomyinterests, both physicians andtheir patients are directly affected by the government’s actions. (See, e.g., Griswold v. Connecticut (1965) 381 U.S. 479, 480-481].)° By contrast, here, the injury Lewis alleges— discipline imposed by the Board—stheresult of his own negligence toward his patients, not any alleged intrusion into his patients’ asserted privacy interests. Lewis therefore cannot advancehis patients’ asserted privacy interests to avoid Board discipline. B. The Board’s Use of CURESin this Disciplinary Investigation Was Not an Actionable Invasion of a Protected Interest Even if Lewis has standingto assert his patients’ state constitutional privacyrights, his claim fails. As explained in the Board’s answeringbrief, Lewis has not established an actionable invasion-of-privacy claim because he has not shownthat patients may reasonably expect that the Department of Justice will deny the Board access to CURESorthat the Board’s review of CURESdata represents a serious invasion of privacy. (AnswerBr. 19- 25.) (...continued) overbreadth doctrine permits third-party claims in order to prevent chilling of constitutionally protected speech—a concern that has not been extended to the right to privacy. (Sec’y ofState ofMd v. Joseph HMunson Co. (1984) 467 U.S. 947, 956-957; ACLU 9.) * Caplin & Drysdale, Chartered v. United States (1989) 491 U.S. 617, 623, fn. 3, is to the same effect. There, a lawyer was permitted to assert his clients’ Sixth Amendmentinterests in a claim against forfeited assets necessary to payhis legal fees. 1. Patients Lack a Reasonable Expectation of Privacy that CURES Data Will Not Be Confidentially Provided to the Board California’s right to privacy protects an individual’s reasonable expectation of privacy, defined as “an objective entitlement founded on broadly based and widely accepted community norms.” (Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37; Answer Br. 20.) Custom and practice, including background legal rules, “may create or inhibit reasonable expectationsofprivacy.” (Hill, at p. 36.) In this case, more than 70 years of practice in California and the near-universal adoption of prescription drug monitoring programsacross the United States demonstrate that patients cannot reasonably expect CURESrecords will not be made available to state medical regulators in the course of a physician disciplinary investigation.’ The ACLU suggests this legal backdropis irrelevant (ACLU 22-23), but the Court has explained that a history of regulation and governmentpractice are relevant to determining society’s reasonable expectations of privacy. (/nternat. Federation ofProf. & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 331-332.) California has closely regulated controlled substance prescriptions since well before CURES. As explained in the Board’s answeringbrief, the State has required pharmacists to maintain records for certain controlled substances since 1929 and to make them available “at all times”for * The Prescription Drug Monitoring Program Training and Technical Assistance Center maintained by Brandeis University reports that 49 States (excluding Missouri and the District of Columbia) have operational prescription drug monitoring programs,and all but five currently provide reports by request to regulatory agencies. (PDMPs Authorized and Engaged in Sending Solicited and Unsolicited Reports to Regulatory Agencies (July 2015) [as of Dec. 22, 2015].) inspection by regulators and law enforcement. (Stats. 1929, ch. 216, p. 381, § 1; Answer Br. 4.) Since 1939, the State has required pharmacists to transmit a record of controlled substance sales to the Department of Justice, first as part of the “triplicate program” and now as a requirement of CURES. (AnswerBr. 5-6.) Federal privacy regulations promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), too, recognize the special need for access by licensing bodies. (See 45 C.F.R. § 164.512, subd. (d) [permitting covered entities to provide protected health information to oversight agencies as authorized by law, including licensure and disciplinary actions, in cases in which the individual patient is not the subject of the investigation].) Contrary to amici’s assertions (CMA 25-26; EFF 25), patients filling controlled substancesprescriptions are on notice of this pervasive regulation. For example, prescriptions for controlled substances are written on special forms obtained from the printers approved by the Department of Justice. (Health & Saf. Code, §§ 11161.5, subd. (a); see also id., § 11162.1, subds.(a), (c) [requiring form to carry watermark “California Security Prescription” andto state the prescriber’s licensing numberand federal controlled substance registration number].) Federal law requires physicians and pharmacists to inform patients that their records may be providedto government agencies overseeing the health care system, including physician care. (See, e.g., 45 C.F.R. § 164.520 [HIPAA notice requirements].) At one major pharmacy, for example, patients are informed, “TW]e may disclose information about you (i) if we are required to do so by law or legal process,(ii) to law enforcement authorities or other governmentofficials based on a lawful disclosure request ....” (Rite Aid, Privacy Policy [as of Dec. 22, 2015].) In light of this history of government regulation, courts, including the United States Supreme Court, have concluded there is no violation of patients’ reasonable expectation of privacy when controlled substance records are used by regulators as provided by state law. (See, e.g., Whalen v. Roe (1977) 429 US. 589, 601-602 & fn. 32 [similar controlled substance monitoring program doesnotviolate the Fourth Amendmentor federal right to privacy]; Williams v. Com. (Ky. 2006) 213 S.W.3d 671, 682 [citizens have no reasonable expectation of privacy as to examination of State’s controlled substance database by personnel authorizedbystatute]; State v. Myers (Oh. Ct. App. 2015) 27 N.E.3d 895, 900-901 [patient cannot reasonably expectthat records stored in State’s prescription drug monitoring program would notbe disclosed to law enforcement].)° The principles set forth in Whalen do not, as amici suggest, extend only to the collection of controlled substance records and not the review of those records bystate officials. (ACLU 12, fn. 5; EFF 24.) In Whalen, the controlled substances records at issue were accessible to 17 New York Department of Health employees, made available to 24 investigators, and had been used in two investigations concerning alleged overuse by individual patients. (Whalen, supra, 429 U.S. at p. 595.) Yet the high court found no violation of patients’ right to privacy (id. at p. 602) or Fourth > State v. Skinner (La. 2009) 10 So.3d 1212, held that a warrant was required to seize pharmacy and hospital records “for criminal investigative purposes.” (/d. at p. 1218.) Skinner does not concern either regulatory use or controlled substance records maintained by a governmental agency. The ACLUalso relies on Douglas v. Dobbs (10th Cir. 2005) 419 F.3d 1097, in which the Tenth Circuit recognized that the plaintiff had a general privacy interest in her prescription record as maintained by her pharmacist but held plaintiff did not establish a clear violation of the Fourteenth Amendment by the assistant district attorney’s role in obtaining a court order for those records. Amendmentrights (id. at p. 604, fn. 32). Whalen explains, “[D]isclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure mayreflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy.” (Whalen, supra, at p. 602, fn. omitted.) Amici’s distinction between the collection and review of controlled substances records, moreover, makeslittle sense in this context, because, unlike with certain containers or physical objects, the collection of information itself reveals the content. (Cf. United States v. Hearst (9th Cir. 1977) 563 F.2d 1331, 1347 [where content of a conversation had already been “seized” by one agency, its subsequenttransfer does not further intrude on reasonable expectations of privacy].) And here Lewis does not dispute that the State may lawfully collect controlled substances records as part of the CURES system. (Answer Br. 14.) Amici additionally claim that patients have the same reasonable expectation of privacy in CURESrecords as they do in their complete medical files maintained by their doctors. (ACLU 20-23; EFF 13-18; CMA 9-14.) This is incorrect. Information in a patient’s medical file may include highly personal details of a patient’s life, including family history, causes of medical conditions, and the patient’s expressions of fears or concernsto his or her doctorin the private setting of a medical office, amongother things. (See Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1147 [“information that may be recorded in a doctor’s filesis broadranging”and mayinclude “highly personal details of lifestyle and information concerning sourcesofstress and anxiety”]; Tucson Woman’s Clinic, supra, 379 F.3d at pp. 536-537 [holding Arizona statute’s provision for warrantless clinic searches and mandatory disclosure of patients’ unredacted medical records to the government and ultrasoundpictures toa third-party vendorviolated patients’ right to privacy].) The data contained in CURES,in contrast, includes only limited information such as the type and quantity of a controlled substance dispensedto a patient. (See,e.g., ARO116 [redacted].) While the identity of a particular drug could, in some circumstances, suggest the nature of the patient’s underlying condition (ACLU 3-5; CMA 11-13), the name of the drug alone would not rule out off-label usage without the diagnostic code. (Stafford, Regulating Off- Label Drug Use—Rethinking the Role ofthe FDA (2008) 358 N. Engl.J. Med. 1427-1429 [up to one-fifth of all drug prescriptions are off-label].) Further, while diagnostic codes are reported to the Departmentof Justice (Health & Saf. Code, § 11165, subd. (d)(6)), they are not transmitted to the Board. (See ARO116-AR0320 [redacted]; ARO321-AR0369 [redacted].) Patients have no reasonable expectation of privacy that the limited controlled substance information maintained in CURESwill not be provided to the Board during a physician disciplinary investigation. 2. The Board’s Confidential Receipt of CURES Data Is Not an Actionable Invasion of Privacy The incremental intrusion alleged in this case—a disclosure from the Department to a regulatory agency acting within the scope ofits authority and subject to continued confidentiality requirements—is also not a serious invasion ofprivacy, the last of the Ai// threshold factors. (ACLU 33-35; see Hill, supra, 7 Cal.4th at p. 37.) This is not a collection-challenge case, as was Ferguson v. City ofCharleston (2001) 532 U.S. 67, 76-77, 80, in which the United States Supreme Court held patients’ Fourth Amendment rights were violated when medical personnel collected and analyzed urine samples without patients’ consent pursuant to a joint criminal prosecution scheme. (See ACLU 16-17.) There is no claim here that California’s 10 s s i p a t a t t a s e t at e a, ac re ‘ database—oranyofthe 48 other similar state prescription drug monitoring programs in the United States—is itself unconstitutional. The California right to privacy is particularly concerned with the misuse of information collected for one purpose but then used for another. (White v. Davis (1975) 13 Cal.3d 757, 774 [discussing the ballot arguments favoring the constitutional amendment].) But the Board in this case used CURESrecords exactly as the Legislature intended. As explainedin the Answering Brief, under the CURESstatute, the Board receives CURES data only for the purpose of discharging its statutory responsibility to enforce the Medical Practice Act. (Health & Saf. Code, § 11165, subd. (a); AnswerBr. 23-25.) The information provided, moreover,is subjectto all applicable federal and state privacy and security laws and regulations and to all “existing provisions of law to safeguard the privacy and confidentiality of patients.” (Health & Saf. Code, § 11165, subd. (c)(1), (2).) For example, information provided to a regulatory agency pursuantto section 11165 may notbe disclosed to any third party. (/d., subd. (c)(2); see also Bus. & Prof. Code, §§ 800, 2225 [confidentiality of the Board’s files]; Civ. Code, §§ 1798.45, 1798.48, 1798.57 [attaching civil and criminal penalties for wrongful disclosures of personal information, including CURES records].) Accordingly, amici’s arguments that the Board’s receipt of CURESdata in the course of investigating a doctor’s alleged negligenceis “improper” or somehow “misuses” the information (ACLU 37-39; EFF 5- 6), and that the system lacks privacy protections (CMA 31-33), are wrong. The CMAlikewise is wrong to suggest that Board review of CURESdata is inconsistent with Business and Professions Code section 2225 (CMA 24), which limits the Board’s review of certain patient recordsto patients who have complained to the Board. That limitation applies onlyto the Board’s examination of records “in the office of a physician and ll surgeon”—traditional medical records—notdata created and maintained by a state agency. (Bus. & Prof. Code, § 2225, subd.(a).)° The Board’s use of CURESdata also cannot be viewedasa Serious, and therefore actionable, intrusion because information sharing amongstate agencies is well-established understate law. For example, underthe state Information Privacy Act, one agency may communicate information—even personal information—to other state agencies in confidence when necessary for the recipient-agency “to perform its constitutional or statutory duties, and the use is compatible with a purpose for which the information was collected,” or if “the information requested is needed in an investigation of unlawful activity under the jurisdiction of the requesting agency or for licensing, certification, or regulatory purposes by that agency.” (Civ. Code, § 1798.24, subd. (e); see also Reynaud v. Superior Court (1982) 138 Cal.App.3d 1, 6 [Departmentof Justice’s receipt of Medi-Cal claim information from State’s agent for processing claims for usein state investigation cannot “be deemed an unreasonable governmental intrusion”|; Haskins v. San Diego County Dept. ofPublic Welfare (1980) 100 Cal.App.3d 961, 971 [disclosures from one government employeeto another understatutory authority to investigate “is not the stuff out of which a cause of action for [a] violation of [the] right of privacy grows’”’].) Amici suggest that the Board’s use of CURESin this instance violated the state Constitution because the original patient complaint against Lewis to the Board did not concern his prescribing practices. (CMA 23-24; ACLU 35.) But the Legislature created CURESas an alternative to relying ° CMAalsoasserts that Board access to CURESinfringes the psychotherapist-patient privilege. (CMA 28-31, citing Evid. Code, § 1012.) Lewisis not a psychotherapist. While there is a similar doctor-patient privilege, CMA acknowledgesit does not apply to disciplinary proceedings. (CMA 30,fn. 13.) 12 on “random complaints and occasionallicenseearrests for indicators of abuse.” (Assem. Com.on Public Safety, Analysis of Assem. Bill. No. 3042 (1995-1996 Reg. Sess.) as amended Aug. 12, 1996, p. 2 [as of Dec. 22, 2015].)’ And where patient complaint raises questions about a physician’s general competence,it is reasonable for the Board to ensure that the physician is not putting other patients at risk by irresponsible prescribing practices. Amici offer no explanation why patients’ reasonable expectations ofprivacy would differ based on the nature of the instigating complaint. Because Lewis has not made the threshold showing that patients have a reasonable expectation of privacy that CURES data will not be shared in confidence with the Board, and that the Board’s use of CURESdata for regulatory purposesreflects a serious intrusion (Hill, supra, 7 Cal.4th at p. 37), the Court should affirm the judgment below on that basis. (See County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926 [if threshold factors notsatisfied, no need to proceedto balancing].) C. The Board’s Use of CURESSatisfies the Hill Balancing Test Even if Lewis satisfied Hill’s threshold factors, his claim based on California’s right to privacy fails, as the Board’s vital, indeed compelling, interest in the use of CURESrecords in physician disciplinary matters outweighs patients’ asserted privacy interests. The Legislature created CURESas a tool to respond to the public health crisis caused by prescription drug diversion and abuse. (See Stats. 1996, ch. 738, p. 3976, § 1 [“the ability to closely monitor the prescribing and dispensing of "In any event, the Board mayinitiate complaints and generate investigations on its own authority. (Bus. & Prof. Code, § 2220, subd.(a).) 13 39 66sSchedule II controlled substances” “is essential to effectively control the abuse and diversion of these controlled substances.”].) Public health and patient safety concerns have only grown moreacute over time, with opioid analgesics involved in more than 16,235 deaths in 2013 alone—more than any other drug,licit or illicit. (Johns Hopkins Bloomberg Schoo! of Public Health, The Prescription Opioid Epidemic: An Evidence-Based Approach (Nov. 2015) at p. 21 [as of Dec. 22, 2015].) Providing medical regulators with the means to ensure careful prescribing practicesis critical, as “[nJearly all prescription drugs involved in overdosesare originally prescribed by a physician.” (Congressional Research Service, Prescription Drug Monitoring Reports (Mar. 24, 2014) at p. 2.) By providing physicians and licensing agencies with access to controlled substance prescription records, prescription drug monitoring programsare a critical tool to address this threat. (Johns Hopkins,at pp. 28-29.) The Board’s vital patient and public-safety concerns outweigh any minimalintrusion incurred by its use of CURESin this context. (AnswerBr. 29-30; cf. Doe v. Southeastern Pennsylvania Transp. Authority (SEPTA) (3d Cir. 1995) 72 F.3d 1133, 1143 [self-insured employer’s need to monitor its prescription plan coverage outweighs its employee’s interest in keeping prescription drug purchases confidential].) Amici argue that patients may opt out of receiving necessary treatment rather than exposetheir prescription records to government oversight. (ACLU 12-13 & fn. 5; CMA 19-21; see also Whalen, supra, 429 USS.at p. 878 [noting same concern].) By design, prescription drug monitoring programsaffect prescribing practices by helping practitioners to identify patterns of substance abusein their patients and providing the opportunity to dissuadeindividuals from drug-seeking or diversionary behaviors. (Congressional Research Service, supra, at p. 2.) Neither amici nor Lewis offer any evidence that use of prescription drug monitoring 14 programsby regulators in the course of physician disciplinary investigations has a chilling effect on legitimate prescribing practices, or demonstrate that any such incremental effect would outweigh the Board’s important interests. (Cf. Whalen, at p. 878.) Amici disagree with the balance the Legislature struck between patient privacy andthe needto protect the public against incompetent, impaired, or negligent physicians. Two amici urge the Court to impose a requirement that the Board obtain a warrant supported by probable cause. (ACLU 26-32; EFF 9-11.) The CMAproposes a subpoena substantiated by “good cause.” (CMA 24-25.) As explained in the Board’s answeringbrief, there is no legal basis to require either a warrant or subpoena, and these alternatives makelittle sense in the context of a non-criminaldisciplinary matter. (Answer Br. 31-34.) Amici cite no authority holding that the right to privacy requires a regulatory agency to marshal probable cause and obtain a warrant to review another agency’s recordsin the course of an administrative investigation. Likewise, amici never explain how the concept of “probable cause’”—a test generally applied in the context of criminal investigations—would operate in the very different setting of Board disciplinary investigations. (See //linois v. Gates (1983) 462 U.S. 213, 238 [probable cause means“a fair probability that contraband or evidence of a crime will be foundin a particular place”]; Bill v. Brewer (9th Cir. 2015) 799 F.3d 1295, 1301 [“probable cause to search...concerns the connection of the items sought with crime”].) Amici’s arguments also ignore that the Board’s “power to make administrative inquiry”is like that of the grand jury, which can “investigate ‘merely on suspicion that the law is being violated, or even just because it wants assurancethatit is not.’” (Arnettv. Dal Cielo (1996) 14 Cal.4th 4, 8, quoting Brovelli v. Superior Ct. (1961) 56 Cal.2d 524, 529. Effective exercise of the Board’s inquiry prerogative is not consistent with a warrant system. 15 The CMA’s suggestion that the Board may not obtain CURESrecords without issuing a subpoena (CMA 24-25) likewise fails. Board requests for CURESprescriber records undoubtedly satisfy the minimal relevance standard applicable to subpoenas, andthere is no rationale for adopting a system contemplating pre-enforcement judicial review here, where there would be no occasion for the Department (the presumed recipient of the proposed subpoena) to object to Board requests for CURES data when the Board’s requests comply with the CURESstatute and any discretionary access protocols. (Answer Br. 32-33.) There is no basis, moreover, to import the “good cause” standard applied by some Courts of Appeal in the context of subpoenas for medical records. (CMA 24-25; see AnswerBr. 33-34.) As explained above, CURESdata do not includethe kind of highly personal information that may be included in a doctor’s medical records. (Supra, 9-10.) In addition, controlled substances information has long been available for regulatory review (subject to confidentiality requirements) without a subpoena, andis collected, in part, for that very purpose. (Answer Br. 4-6; supra, 12 [discussing Information Privacy Act’s express allowance of agency-to-agency communication of confidential information].) Amici’s proposed alternatives, moreover, would compromisethe Board’s ability to investigate unprofessional and unsafe medical care. (AnswerBr. 34.) Under the ACLU and EFF’s proposed process, the Board would not be able to view CURESdata until it had developed enough evidence of physician misconduct to meet the probable cause standard. This could stall or halt a substantial numberof the approximately 1,500 investigations the Board pursues annually (representing just a fraction of 16 the complaints received).® To obtain a warrant, moreover, the Board could have to employ potentially more intrusive investigative means up front. This additional process could prevent the Board’s promptintervention to stop dangerous drug prescription practices—which can have severe and sometimes fatal consequences for patients. (Answer Br. 34.) As the Court of Appeal here concluded,“[r]Jeal-time access to CURES. ..protects patients from incompetent and unprofessional doctors.” (Opn. 23.) Amici cite a numberof state laws and suggest that those States impose subpoenaor warrant requirements before controlled substances data may be reviewed by a medical regulatory agency. (ACLU 1, 42-43; CMA 33-35.) This is incorrect. The majority of state prescription drug monitoring programsreferenced by amici, like California, make controlled substance records available to regulatory agencies withoutresort to a warrant or subpoena. (E.g., 35 Pa. Stat. & Cons. Stat. Ann. § 872.9, subd. (b)(6); Fla. Stat. § 893.055, subd. (c)(1) [permitting regulatory access via written request]; see also Mass. Gen. Laws ch. 94C § 24A,subd.(f)(3) [requiring only that inquiries pertain to a “bonafide specific controlled substance or additional drug-related investigation”].) None of the jurisdictions cited by amici requires medical regulators to obtain a warrant supported by probable cause. And only five of the twenty-two States mentioned by amici require regulators to proceed by way of subpoenaor- court order, while one prohibits use by medical regulators. (Alaska Stat. § 17.30.200, subd. (d)(1) [search warrant, subpoena,or order issued by administrative law judge or court]; Colo. Rev. Stat. § 12-42.5-404, subd. (g) [court order or subpoena]; Ga. Code Ann. § 16-13-60, subd. (c)(4) [administrative subpoena issued by an administrative law judge]; Iowa ® See Medical Board of California, 2013-2014 AnnualReport, at p. vi [as of Dec. 22, 2015].) 17 Admin. Code r. 657-37.4, subd. (2) [court order, subpoena, “or other means of legal compulsion”supported by a determination of probable cause J; Md. Code Ann. Health-Gen. § 21-2A-06, subd. (b)(4) [administrative subpoena]; Minn.Stat. Ann. § 152.126, subd. (5)(c) [prohibiting use of the database in disciplinary proceedings against a prescriber].) As a matter of discretion rather than Fourth Amendment mandate, some States require some higher showing for criminal investigators but maintain access for regulatory use without a warrant or subpoena. (See, e.g., N.H. Rev.Stat. § 318-B:35, subd. (b); N.Y. Pub. Health Law § 3371, subds. (1)(b), (c); Or. Rev. Stat. § 431.966, subds. (2)(a)(D), (E).) Within the past year, the Departmentof Justice, in its discretion, began to require criminal investigators using the new CURES2.0 system to provide either a warrant or court order before querying patient records. (See Attachment A: Dept. of Justice, Bulletin to All CURES Law Enforcement Users (June 11, 2015 [announcingpractice to take effect with CURES 2.0 system release]; Dept. of Justice, Bulletin to All CURES Law Enforcement Users (Sept. 11, 2015) [announcing exception when patient information is sought for deceased persons]; Dept. of Justice, Attorney General Kamala D. Harris Launches New Prescription Drug Monitoring Program, CURES2.0 (Dec. 22, 2015) [press release announcing systemwide launch of CURES 2.0 effective January 8, 2016].) While a State may voluntarily elect to impose a warrant or subpoena requirement or its equivalent for regulatory investigations, that is not the choice that California has made. Rather, the state Legislature struck a balancethat respects patients’ interests in confidentiality, but allowsthe Board to promptly investigate and address the very real patient and public- | safety threats posed by controlled substance abuse and diversion. Amici cite no authority for the proposition that an individual’s right to privacy compels the Boardto establish probable cause or any other heightened 18 showing to access the government’s own controlled substance recordsto investigate physician misconduct where such useis explicitly authorized by Statute. I. LEWiS CANNOT VICARIOUSLY ASSERT A FOURTH AMENDMENTCLAIM ON BEHALF OF THIRD PARTIES AND ANY SUCH CLAIM LACKS MERIT A. Fourth Amendment Rights Are Personal and Cannot Be Asserted Vicariously “Tt has been clear for a generation that ‘Fourth Amendmentrights are personalrights ... [that] may not be vicariously asserted.” (United States v. Haqq (2d Cir. 2002) 278 F.3d 44, 47, quoting Rakasv.Illinois, 439 U.S. 128, 133-34 (1978)(alteration in the original); see also People v. Bryant | (2014) 60 Cal.4th 335, 365.) Amici do not cite a single case in which the United States Supreme Court has deviated from this basic principle. Instead, they cite Article III standing cases in which federal courts outside ofthe Fourth Amendmentcontext have grappled with the unrelated question of when federal court jurisdiction extends to claims brought on behalf of absent parties. (ACLU 9-11, 15.) The high court, however, has made clear that the personal nature of the Fourth Amendmentis a matter of substantive constitutional law, whichis distinct from questions of Article III standing. (Rakas, at p. 133 [“We decline to extend the rule of standing * The only case cited by the ACLU(pp. 9, 12) addressing the Fourth Amendmentis Jn re Subpoenas Duces Tecum (W.D. Va. 1999) 51 F.Supp.2d 726, 738, aff'd 228 F.3d 341 (4th Cir. 2000), in which the Fourth Amendment claim was personal to the movant. (/d. at p. 729.) The government did not contest the physician’s standing to assert a separate claim as to his patients’ right to privacy in the subpoenaedrecords(id. at p. 738, fn. 6), and neither the district court nor court of appeal addressed the question of third-party standing before rejecting the merits of that argument. (/d. at p. 738; 228 F.3d at p. 351.) 19 in Fourth Amendmentcases in the manner suggested by petitioners”’]; see also Bryant, at p. 365; People v. Ayala (2000) 23 Cal.4th 225, 255.) Amici err in claiming that the Rakas rule barring third-party assertion of Fourth Amendmentrights applies only when the ownerof the property at issue was present and “aware of the search.” (ACLU 10.) The cases cited in the Board’s answerbrief are not consent cases and do not turn on whether the owner was aware of the search or had an opportunity to pursue his or her own claims. (AnswerBr. 35-36;see, e.g., Ayala, at p. 255.)’° In any event, the high court has applied Rakas’s rule outside the context where the ownerofthe property was present for the search. (See, e.g., United States v. Payner (1980) 447 U.S. 727, 730 [agent entered the empty house of defendant’s banker and removedthe banker’s briefcase containing the documents at issue].) Amici’s attemptto limit Rakas fails, and, applyingits rule, Lewis’s Fourth Amendmentclaimsare barred. B. Lewis’s Fourth Amendment Claim Fails on the Merits Even if Lewiscould assert his patients’ Fourth Amendmentrights, those claims wouldfail. In Whalen, the United States Supreme Court rejected a similar Fourth Amendmentclaim, saying “We have nevercarried the Fourth Amendment’s interest in privacy”that far and “[w]e decline to do so now.” (Whalen, supra, 429 U.S. at p. 604, fn. 32.) The ACLU argues that Whalen’s Fourth Amendmentholding extends only to the ‘© While the ACLU characterizes the property at issue in People v. Bryantas “the co-defendant’s residence” (ACLU 10), this argument appears to confuse the nameof one of the co-defendants (Leroy Wheeler) with the location of the property (Wheeler Avenue). (60 Cal.4th 335, 353- 355, 364-365.) Similarly, it seems a stretch to assume the owner of the automobile shop at issue in People v. Ayala was “‘aware of the search.” (ACLU 10.) Thoughhis body waspresent at the time the police entered the premises, it appears he was dead. (23 Cal.4th at p. 242, 244.) 20 collection of prescription information (ACLU 16), whichis not challenged here, but this is incorrect for the reasons explained above. (Supra, 8-9.) The ACLUis also wrong to suggest that the Board’s review of CURES data “involve[s] affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of a criminal investigation”that Whalen distinguished from the regulatory review of controlled substances information involvedin that case. (Whalen,at p. 602, fn. 32.) The “intrusions” to which Whalen referred were police pat down searches (Terry v. Ohio (1968) 392 U.S. 1, 9), tapped telephone conversations (Katz v. United States (1967) 389 U.S. 347, 348), and warrantless arrests (Beckv. State ofOhio (1964) 379 U.S. 89, 89-90). (See Whalen, at p. 602, fn. 32. The Board’s action, in contrast, is limited to reviewing information already provided to the Departmentof Justice pursuantto statute. Amici further argue that the Fourth Amendment requires the Board to obtain a warrant (supported by probable cause) before it can review CURESdata. (ACLU 26-32; EFF 9-11.) This is wrong for all the reasons explained above(supra, 15) and is inconsistent with established case law providing that, under the Fourth Amendment, one government agency does not need a warrant to receive information from another one. (United States v. Hassanshahi (D.D.C. 2015) ___s-F.Supp.3d___, 2015 WL 7303515, *13) [“well-established precedent” provides no warrant needed when one government entity seeks information from another]; Jabara v. Webster (6th Cir. 1982) 691 F.2d 272, 278-279 [even if individual maintainssubjective belief that information would not be shared with another government agency whenauthorized by law,that is not “an expectation that society is prepared to recognize as reasonable”|; United States v. Joseph (9th Cir. 1987) 829 F.2d 724, 728 [no Fourth Amendmentviolation where IRS obtained defendant’s business records held in the lawful possession of a state licensing board].) In such circumstances, there is no reasonable 21 sy H E E G e n S h e n expectation of privacy that information lawfully obtained by one governmental entity will not be provided in confidence to another governmental entity. (See Jabara, at pp. 278-279.)" The only case cited by amici to have held that a government agency needs a warrant before obtaining controlled substances information lawfully collected by another governmentagencyis the district court’s decision in Oregon Prescription Drug Monitoring Program v. U.S. Drug Enforcement Admin.(D. Or. 2014) 998 F.Supp.2d 957 (Oregon PDMP), which is now pending on appeal before the Ninth Circuit. That court’s reasoning is not persuasive, and the caseis, in any event, inapposite. There, the district court misread Whalen as leaving open the Fourth Amendment question when,in fact, the United States Supreme Court specifically considered and rejected any Fourth Amendment violation. (Compare Oregon PDMP,at p. 964 with Whalen, supra, 429 U.S.at p. 604, fn. 32.) In addition, the district court recognized that patients’ reasonable expectations of privacy were informed bythe specific statutory provision '! Neither United States v. Ganias (2d Cir. 2014) 755 F.3d 125,rehg. en banc granted June 29, 2105, nor United States v. Comprehensive Drug Testing, Inc. (9th Cir. 2010) 621 F.3d 1162 (per curiam, en banc) applies, as both concer records obtained by the government without any legal authority. (EFF 18, 26; ACLU 25, 40-41). In Ganias, the government seized the defendant’s personal business records without a warrant and then retained them long after such files had been segregated from the business records covered by the warrant. (Ganias, at p. 128-129.) In Comprehensive Drug Testing, the government seized electronic records not covered by its search warrant and then failed to follow the specific segregation procedure set forth in the warrant. (Comprehensive Drug Testing, at p. 1167.) The court concluded suppression was warranted in “an obvious case of deliberate overreaching by the governmentin an effort to seize data as to which it lacked probable cause.” (/d. at p. 1172.) In contrast, the records maintained in CURESwere transmitted by dispensers as directed by Health and Safety Code section 11165, subdivision (d). 22 requiring a court order for criminal investigators. (Oregon PDMP,at p. 966, citing Or. Rev.Stat. § 431.966, subd. (2)(a)(D).). California law does not impose such a requirement. (Health & Saf. Code, § 11165.) Third, the case concernedonly criminal investigations. (Oregon PDMP,at p. 961.) While the Oregon statute permits regulatory use of the database (Or. Rev. Stat. § 431.966, subd. (2)(a)(E), that use was notat issue in the case. Were the Court nevertheless to conclude that the Board would otherwise require a warrant to access controlled substance records lawfully held by the Departmentof Justice in CURES,the administrative inspection exception for closely regulated industries set forth in New York v. Burger (1987) 482 U.S. 691, 702-703, would apply. Contrary to amici’s view (ACLU 28-29; EFF 20-21), pharmaceuticals are closely regulated. (AnswerBr. 39.) Amici correctly note that in City ofLos Angeles, Calif. v. Patel (2015) —Ss-U.S. __—s, 135 S.Ct. 2443, the high court observedthat it hadidentified only four industries as closely regulated (liquorsales, firearms dealing, mining, and running an automobile junkyard),all of which “inherent[ly]” pose a “clear and significant risk to the public welfare.” (/d. at pp. 2454-2455.) But that was not intended to be an exhaustivelist. That description applies equally to prescription drugs in general and controlled substances in particular, which are defined by law as “dangerous” and pose significant risks to human health andlives that require close regulatory scrutiny. (Answer Br. 4-5, 29-30.) Consistent with this commonsense conclusion, multiple circuit courts have held that pharmaceuticals are “closely regulated” within the meaning ofBurger. (E.g., United States v. Gonsalves (1st Cir. 2006) 435 F.3d 64, 67 [drugs seized from physician’s office]; United States v. Argent Chemical Laboratories, Inc. (9th Cir. 1996) 93 F.3d 572, 575-576 [drug manufacturer]; United States v. Acklen (6th Cir. 1982) 690 F.2d 70, 74-75 [pharmacist’s records].) 23 Amici suggest the closely regulated doctrine applies only to the interests of business owners (ACLU 29-30; EFF 23), but the case law does not makesuch a distinction, and the doctrine has been applied to other market participants. (See Skinner v. Ry. Labor Executives’ Assn. (1989) 489 U.S. 602, 630 [railway employees know they are subject to warrantless drug testing following an accident]; People v. Maikhio (2011) 51 Cal.4th 1074, 1092-1093 & fn. 8 [we consider the effect of the state’s close regulation of fishing and hunting upon an angler’s or hunter’s reasonable expectation of privacy”]; cf. e.g., Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 657 [analogizing student athletes to participants in closely regulated industries].) Patients are on notice that the State closely regulates the prescription and dispensation of controlled substances. (Supra, 7; AnswerBr. 21-22.) As the Court has confirmed,it is the regulatory context, rather than an assessment of voluntarinessor “implied consent,”that is the relevant touchstone in the high court’s closely regulated doctrine. (Maikhio, at p. 1083, fn. 8.) EFF argues the CURESstatute doesnotsatisfy the third Burger factor. (EFF 25-26.) But the statutory scheme informspatients, physicians, and pharmacists that the Board’s use of CURESto investigate physician misconduct “do[es] not constitute discretionary acts by a government official but [is] conducted pursuantto statute.” (Burger, supra, 482 U.S. at p. 711.) In particular, the scope of the Board’s investigatory poweris narrowly defined by statute to enforcement of the Medical Practice Act against licensees. (Bus. & Prof. Code, § 2004; AnswerBr.8-9.) Additional limits on time and place of inspection would provide no meaningful advantage to patients or physicians as the information at issue is already held by the government, and administrative review of that information effects no further intrusion into the premises or property of any individual. 24 For all of the reasons set forth above, patients cannot reasonably expect the Board will not confidentially review CURESrecordsin the course of investigating physician misconduct. (Supra, 6-10.) This is especially true because the information at issue concerns controlled substances, which havelong been closely regulated by the government. (AnswerBr. 4-8.) Whether it is because Lewis cannot vicariously assert his patients’ Fourth Amendmentinterests, or because the Fourth Amendmentis not implicated when the Board uses records already disclosed to and maintained by the governmentfor this very purpose, the Fourth Amendmentprovides Lewis with no basis to exclude evidence derived from CURESin this administrative proceeding. 25 CONCLUSION The judgmentof the Court of Appeal should be affirmed. Dated: December23, 2015 Respectfully submitted, KAMALA D. HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General KATHLEEN A. KENEALY Chief Assistant Attorney General GLORIA L. CASTRO Senior Assistant Attorney General JANILL L. RICHARDS Principal Deputy Solicitor General AIMEE FEINBERG Deputy Solicitor General E. A. JONES HI Supervising Deputy Attorney General EDWARD K. KIM Deputy Attorney General Katrboan Vermoron Redes sole KATHLEEN VERMAZEN RADEZ Deputy Solicitor General Attorneysfor Real Parties in Interest Medical Board of California 26 CERTIFICATE OF COMPLIANCE I certify that the attached MEDICAL BOARD OF CALIFORNIA’S ANSWER TO AMICUS CURIAEBRIEFSuses a 13 point Times New Roman font and contains 7,483 words. Dated: December 23, 2015 KAMALA D. HARRIS Attorney General of California Katthoon Vermege Rade [at KATHLEEN VERMAZEN RADEZ Deputy Solicitor General Attorneysfor Real Parties in Interest Medical Board ofCalifornia ATTACHMENT A KAMALA D. HARRIS State of California (ss Attorney General DEPARTMENTOFJUSTICE \& BUREAU OF CRIMINAL IDENTIFICATION & INVESTIGATIVE SERVICES CURES PROGRAM P.O. BOX 160447 SACRAMENTO,CA 95816-1089 June 11, 2015 TO: ALL CURES LAW ENFORCEMENT USERS RE: Controlled Substance Utilization Review and Evaluation System (CURES2.0) Access by Law Enforcement The California Department of Justice (DOJ), in conjunction with the Department of Consumer Affairs, will release the CURES 2.0 system on July 1, 2015. The CURES2.0 features include a vastly improveduser interface, ease of use, and robustness. New DOJ CURESinformation access policy will implement with the release of CURES 2.0. Law enforcement users will be required to provide additional information and documentation for searching the CURES 2.0 system, as follows: Prescriber and Pharmacy Prescription History (PPH) Search Law enforcement subscribers requesting a PPH must enter a Case Numberand Violation/Crime Code when submitting a query. Patient Activity Report (PAR) Search Law enforcement subscribers requesting a PAR must enter the following when submitting a query: 1. Case Number; 2. Violation/Crime Code; and 3. Attach a PDF copyofeither a Search Warrant face page or Court Order. Coroner and medical examiner (ME) subscribers requesting a PAR mustenter the following when submitting a query: 1. Case Number; and 2. Attach a copy of a signed statement from the Coroner/ME certifying the searchis related to a Coroner/ME Case. For questions concerning this new requirement, please contact Leticia Tannerat (916) 227-5589 or Austin Weaverat (916) 227-3858. KAMALA D. HARRIS State of California ‘ Attorney General DEPARTMENTOFJUSTICE BUREAU OF CRIMINAL IDENTIFICATION & INVESTIGATIVE SERVICES CURES PROGRAM * P.O. BOX 160447 SACRAMENTO,CA 95816-1089 September 11, 2015 TO: ALL CURES LAW ENFORCEMENT USERS RE: ACCESSING PATIENT DATA FOR DECEASED PERSONS This bulletin addresses an exception to the search warrant / court order requirementfor law enforcement personnel to obtain CURESpatient information. This exception applies to patient information sought for deceased persons. Decedents have a diminished expectation ofprivacy. Accordingly, neither search warrants nor court orders are required to obtain CURESpatient information for decedents. The attestation form accompanying this bulletin may be usedin lieu of a subpoenaor court order when law enforcement personnel seek CURES information of a deceased individual. In CURES 2.0, the completed attestation form should be uploaded in place of a search warrant or court order as the “Patient Search Required Documentation” on the CURES Law Enforcement Agency Authorization page. For questions concerning this matter, please contact Leticia Tannerat (916) 227-5589 or Austin Weaverat (916) 227-3858. CURES PATIENT QUERY LAW ENFORCEMENT AGENCY ATTESTATION This attestation form is used in lieu of a subpoenaor court order when a law enforcement agency seeks the CURES information of a person whois deceased. Once completed, this form should be uploadedin place of a search warrant or court order as the “Patient Search Required Documentation” on the CURES Law Enforcement Agency Authorization page. ATTESTATION I, the undersigned, herebyattest that: 1. Iam presently a law enforcement agency employee. 2. The below-identified person, on whom J intend to run a PAR,is deceased. DecedentIdentification (must match PAR searchcriteria used): Name: DOB: Address(es): 3. This PAR request, and the information derived therefrom,is justified by and sought in connection with an open investigation by my agency. I affirm that all information I have given in this documentis true, and I understand that the DOJ pursues regulatory and/or criminal sanctions for misuse of CURES information. LEA Employee Signature Date Print/Type LEA Employee Nameand Title Direct Telephone Number Supervisor Signature Date | Print/Type Supervisor NameandTitle Direct Telephone Number Attorney General Kamala D. Harris Launches NewPrescription Drug Monitoring Progra... Page 1 of 2 State of California «DepartmentofJustice OFFICE ofte ATTORNEY GENERAL KamaiaD. Harris Attorney General Kamala D. Harris Launches New Prescription Drug Monitoring Program, CURES 2.0 Tuesday, December 22, 2015 Contact: (415) 703-5837, agpressoffice@doj.ca.gov SACRAMENTO — Attorney General Kamala D. Harris and the California Department of ConsumerAffairs today announcedthe universal launch of the new Controlled Substance Utilization Review and Evaluation System (“CURES 2.0”), a state-of-the-art overhaul of California’s prescription drug monitoring program that will allow health providers and pharmacists to more effectively flag at-risk patients and curb prescription drug abuse. “This innovative prescription drug database ensuresthat California continues to lead the fight against our country’s prescription drug abuse epidemic,” said Attorney GeneralHarris. “Through the use of new technology, CURES 2.0 will save lives and improve public health while also providing a vastly improved user experience for healthcare professionals, regulatory boards, and law enforcement.” . Starting January 8, 2016, current CURESusers logging in with up-to-date and secure web browserswill be automatically redirected to the new 2.0 system. In anticipation of the launch, Attorney General Harris also sent a letter to members of the medical community urging them to only use secure software to access confidential and sensitive patient information. “CURES 2.0 will give California's healthcare professionals who prescribe and dispense potent prescription drugs a powerfultool to better access and utilize patient information to help them identify individuals who are abusing these drugs,” said Awet Kidane, Director of the California Department of ConsumerAffairs. “It is a direct result of the hard work and collaboration between the Departmentof Justice, the Department of ConsumerAffairs, and the regulatory boards funding this project.” The online CURES database enables healthcare providers to review a patient's medication history before prescribing new drugs, storing prescription recordsfor all controlled substancesclassified as ScheduleIl, Ill, and IV. Over 5.5 million such requests have beenprocessed so far in 2015 alone. in addition to providing users with faster and morereliable access to patient activity reports, the upgraded 2.0 system features cutting-edge analytics for flagging at-risk patients, allowing medical professionals to prescribe wisely and helping to prevent abuse or diversion of controlled medications such as opioids. “CURES2.0 is without a doubt the most effective tool for doctors and pharmacists to help curb prescription drug abuse. Manylives will be saved in California,” said Bob Pack, a patient safety advocate. By law,all health practitioners licensed to prescribe or dispense scheduled medications are required to sign up for CURESby July 1, 2016. The launch of the new 2.0 system will also include the release of a new streamlined registration process, which will allow users to apply for access and verify their credentials entirely online using secure web browsers. CURES2.0 was implemented through Senate Bill 809, legislation authored by former California State Senator Mark DeSautnier and sponsored by Attorney General Harris in 2013. http://oag.ca. gov/news/press-releases/attomey-general-kamala-d-harris-launches-new-pre.. . 12/22/2015 Attorney General Kamala D. Harris Launches New Prescription Drug Monitoring Progra... Page 2 of 2 “The U.S. claims less than 5% of the world’s population, but consumes roughly 80% of the world’s opioid supply. Each day, 44 people in the U.S. die from an overdose of prescription painkillers. By launching CURES2.0 and requiring all prescribers and pharmacists to enroll, California will be on the cutting edge of addressingthis crisis. | am proud to have authored this law in the memory of the countless sons and daughters who werelostto this epidemic. | thank Attorney General Harris and Governor Brownfor their years of work to ensure the modernization of CURESis a success,” said Congressman Mark DeSaulnier (CA-11). - To learn more about CURES 2.0, visit https://oag.ca.gov/cures-pdmp. ### Attachment Size CURES Universal Launch and Streamlined Registration - 12-21-15.pdf 136.37 KB AG Letter to CA Heaithcare Professionals - 12-21-15.pdf : 649.41 KB http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-launches-new-pre... 12/22/2015 DECLARATION OF SERVICE BY U.S. MAIL Case Name: Alwin Carl Lewis, M.D. V. Medical Board No.: $219811 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On December23, 2015, I served the attached MEDICAL BOARD OF CALIFORNIA’S ANSWER TO AMICUS CURIAEBRIEFSbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: SEE ATTACHEDLIST I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on December23, 2015, at San Francisco, California. Elza Moreira CLL , Declarant Signature LA2014613696/20733045.doc ‘Attorneys forPetitioner Alwin Carl Lewis Second District Court of Appeal Superior Court of Los Angeles County ‘Henry R. Fenton Dennis E. Lee Benjamin Joseph Fenton Fenton Law Group LLP 1990 S. Bundy Drive, Suite 777 Los Angeles, CA 90025 SecondDistrict Court of Appeal, Division Three Ronald Reagan State Building 300 S. SpringStreet 2™ Fl. North Tower ‘Los Angeles, CA 90013 ‘Frederick Bennett Superior Court of Los Angeles County 111 North Hill Street, Room 546 Los Angeles, CA 90012 Attorneys for Amicuscuriae Center for Public Interest Law Bridget Fogarty Gramme Julianne D'Angelo Fellmeth Center for Public Interest Law University of San Diego School of Law 5998 Alcala Park San Diego, CA 92110 Attomeys for Amici American Civil Liberties Union of Southern California, American Civil Liberties Union of Northern California, and American Civil Liberties Union of San Diego ‘Attomeys for Amicuscuriae Electronic Frontier Foundation Attorneys for Amici California Medical Association American Medical Association California Psychiatric Association California Dental Association, and American Dental Association Benjamin Bing-Ho Au Julia Jill Bredrup Caldwell Leslie & Proctor PC 725 South Figueroa Street, 31st Floor Los Angeles, CA 90017 Peter Bibring Jessica Griselda Price - ‘ACLUof Southern California 1313 West 8th Street Los Angeles, CA 90017 Tze Lee Tien Jamie L Williams Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 Francisco Javier Silva Long Xuan Do Lisa Matsubara California Medical Association (CMA) 1201 "J" Street, Suite 200 Sacramento, CA 95814