August 18, 2013
Dear Senator Joe Manchin,
I am writing today concerning an issue that is of great importance to all individuals who attend methadone treatment centers in WV. First I am a disabled Veteran who was forced to attend a methadone treatment center due to severe spinal stenosis and my subsequent dependence on short acting opiates. I began treatment in October of 2007 and since then I have attended hundreds of groups to include NA, AA, 12 step, REBT, relapse prevention, recovery and many other groups designed to educate me about the disease process and help me remain free of illicit use. I have been a model patient insofar as I have never failed a drug screen, never missed an appointment, never missed a medication check or pill count and have been an active participant in my recovery every single day. Unfortunately due to my severe spinal stenosis of the lower and upper spine I am not able to live life without the use of opiate pain medication. I am currently a patient primarily for pain management but for the sake of the program and the fact that if I were to come off of methadone I would seek pain relief in the form of opiates I am also a patient due to my physical and psychological need for opiates. I am a Medical Laboratory Technician, Emergency Medical Technician, phlebotomist, studied for 4 years towards my Physicians assistant degree and I am an amateur writer and researcher of numerous subjects.
While at the Methadone treatment center in Charleston, WV it was brought to my attention on August 18th, that video camera's were to be installed starting in October, in both bathrooms or 'urine collection areas', to aid in the collection of specimens due to a recent bill that was passed, HR-265. The bill states on lines 92 through 94; "41.2.d.3. When using urine as a screening mechanism, all patient drug testing shall be observed to minimize the chance of adulterating or substituting another individual's urine." I absolutely agree that all urine specimens should be observed by a human observer of the same sex, but to observe a patient remotely via video-surveillance is offensive, intrusive and most importantly infringes upon patients 4th amendment rights under the Constitution. This not only infringes upon patients rights to privacy in a private area, but also reduces the moral of the entire patient populous. Furthermore no where in Bill-265 does it condone, nor mention the use of video camera's in the collection of observed urine specimens and for good reason, it would infringe upon the patients 4th amendment rights. Due to the fact that I fear retribution I will not disclose the reply given to me by the Director, since I do not have her permission to do so and I feel it would ultimately lead to my dismissal from the program for standing up for the rights of methadone patients. But I will say that the Director failed to address the 4th amendment Constitutionality of my proposed statement, nor were any of the other numerous issues written in my letter addressed. I already feel stigmatized enough for taking methadone, but I have had excellent success with treatment and I feel that by adding another process to the foreboding task of urine collection just makes me feel even more of a 'bad person'. I am used to urine drug screens, especially since I had them frequently in the Army, but never in my life, no matter where I have gone, have I had my genitalia on camera for any purpose public or private. As a Medical Laboratory Technician I have performed thousands of observed and random urine drug screens and Department of Transportation drug screens and not once was a camera involved or video footage of the patients genitalia involved. This raises many questions. The first has to do with the morality of filming someone when they are urinating and or defecating, which is a private matter that as a society we have learned from childhood to do 'in private'. Now I do understand that being a patient means that I am subject to 'observed' drug screens, but the observer should be of the same sex and in the room with me, not in another room watching a video monitor that is somehow connected to a video camera. This raises even more questions, who is watching this video, could it be recorded, is it secure, is is transmitted by wifi or hard wire and if so is it encrypted? As a rule patients expect a certain amount of privacy when entering a restroom even when collecting a specimen. Can we be assured that the video camera is on only when a urine specimen is being collected? The other question that is raised is the simplest and most fundamental one of all and has to do with the validity of this new procedure to begin with. If it takes a male or female to watch a video to ensure that a person is actually urinating in a specimen cup, then what is the difference with them standing in front of the patient as opposed to sitting behind a monitor, where others could see and record the video using a number of different devices. It seems that the only benefit this practice would serve would be to save the observer the 30 or so feet that they would have to walk to the 'restroom' and back to their station in the med room, so what good does this serve in the first place if it's supererogatory in nature? It seems to be a waste of resources and gives the deceptive individual a chance to adulterate the urine specimen because human eyes can see much more than a camera and a human can also feel through empathetic emotions, deception by the actions of an individual, such as shaking, panicky behavior or other odd behavior which cannot be captured on video but is completely evident by the presence of a human observer.
Often times individuals or even a group of individuals come up with idea's that seem good at the time but in practice are not good at all and are not only counter productive and costly but actually infringe upon a patients rights. Patients who have been in treatment for long periods of time, who have attended hundreds of group sessions, never failed a drug screen, never missed a call back and so on as I have and as many others have, should not be subjected to any further hardship just because of the needs of the few individuals who just don't care about their recovery. When it comes to rules and regulations the needs of the many outweigh the needs of the few and for those few who absolutely bamboozle the system they need direct observation with human eyes. Also as Carl Sagan would put it, if someone says there should be a law against something, chances are there shouldn't. Laws do one of two things, either protect and give freedom or take it away. If a camera was placed in front of the toilet at a 45 degree angle it would only show the front of the 'penis' and the camera for a 'women' would not show much of anything as a women could pull her pants down just enough to get a specimen cup between her legs and could crouch back therefor concealing her genitalia completely. This surveillance is therefor by nature and based on anatomical features, biased towards males allowing unscrupulous females to adulterate their specimen rather easily. Even males who taped or glued a thin measured amount of tubing to the underside of their penis could adulterate the specimen if this procedure was fully implemented. That is why this kind of collection procedure is not used by any government agency or any other agency that I am aware of even though video-surveillance camera's have been around in the United States since 1949. They are not used for this purpose due to the fact that it is extremely easy to circumvent the surveillance safe guards and adulterate the specimen, and because video surveillance is susceptible to what is called "video sniffing" , which is the hacking and broadcasting of the video for other purposes. I personally do not want a new porn site called 'ADDICTS GONE WILD', where I am on video pulling out my penis and urinating in front of a video camera. The military does not utilize this technique, the Department of Transportation or DOT does not utilize this technique and in my professional opinion neither should any methadone treatment center. I feel that it will only lead to a further reduction in patient volume as patients seek alternative treatment modalities or centers and it could potentially lead to lawsuits for video that was inappropriately recorded, hacked, or watched by unauthorized individuals. It seems there is a commercial for a lawsuit for anything and everything these days and the last thing any entity wants to do is give some unscrupulous person a reason to pick up the phone and initiate one. The next issue is, who is watching who, does a male watch a male, a female watch a female, again, adding video-surveillance is superfluous, has no checks and balances and gives the patient a chance to 'beat the system' by using apparatuses attached to their bodies to deliver an adulterated specimen, which would have been caught had an actual observer been present. The urine collection area or 'restroom' at my clinic has undergone drastic and almost laughable transformations within the past year or so. First the water was cut off, soap dispenser was removed along with trash can, then the sink was totally removed leaving an odd piece of wood in its place, the toilet is now made to not flush conventionally, unless you have an IQ greater than the toilet and press the center button and I am now seriously waiting for the day when I walk into the collection bathroom and see an Asian style restroom with simply a hole in the floor. I know this may sound a bit mordacious but that is not my intention, if you look at the transformation as a whole it does seem a bit crazy and definitely over kill, and for what purpose or good? Urine specimens are checked for temperature, so why can't a patient wash their hands before touching the door knob and exiting, which would stop cross contamination? Why can't a patient flush a toilet that has his or her's urine and perhaps feces in it, without having to show others their bodily excretions and again expose others to contamination? The last part of the procedure which just adds to cross contamination of bacteria and the possible spread of hepatitis A from fecal matter is putting the urine specimen directly on the collection table where the staff sits and does the patients paper work. Patients used to place the specimen on a paper towel, now all those inadvertent drips of urine and/or transference of bacteria and potential fecal coliform that are invisible to the naked eye are left behind to build up on the table surface all day long. This exposes both staff and patients to microorganisms and potentially Hepatitis A from feces, and in some cases potential Hepatitis B and C from females during menses. I am not bringing this to your attention in order to 'complain' but in an effort to bring my knowledge as head of Microbiology at both Kirk US Army Health Clinic and Eastern Virginia Medical School to your repertoire of knowledge so that the functioning of daily business can be as pleasant and as safe as possible for both patient and staff alike. Going back to the topic at hand, I have found two paragraphs from two different methadone forums talking about the issue of camera's in bathrooms. I have nothing to do with the following statement's nor do I embrace or endorse what is being said, but it's subject matter is germane to this issue I am writing about and gives us both an opinion from another patients perspective. The first states verbatim:
"WTF: hi ya'll i'm not sure about everyone else but i am from pennsylvania and at our clinic they have a camera in our bathroom. Now i'm not sure how everyone else feels about this but it pisses me off and makes me sick all at the same time. For one thing at my clinic the only time you are supposed to get a monitored urine analysis (UA) is if you are up for a privalege, but if there is a camera in the bathroom technically everytime you pee it is monitored, even when you are not giving a UA. How do we know if they are recording us use the bathroom or not, just because they say there not, does't mean they are telling the truth. and where the monitor is set up in our clinic for the nurses to watch you use the BR, everyone that walks to the dosing window can see whom ever is in the bathroom pee.My husband and I did a test one day to see if the nurses payed attention to those of us that had to use the bathroom while giving a UA. Mind you we have been clean now for 2 years. anyways, he walked into the bathroom and instead of standing over the toilet to pee in the bottle he turned around to where the camera could not see him, no sooner he did that and a nurse came running out of the back and started punding on the door kicking it and pulling on the doorknob screaming what are you doing in there i can't see you, your not on camera, well me i can't keep my mouth shut so that nurse and i got into an argument about her looking at my husbands private parts, and everyone there was in agreement with me. Anyways now for the last 4 or 5 months my 2nd cousin is a nurse at my clinic, and she told me some stuff about the nurses and what they do when the men go to the bathroom, I was right the nurses sit there and talk about how big each guys thing is and what not, i think it's an outrage and I know it appals me. Now what if my little girl had to use the bathroom and they were recording it, i don't want some sick pervet getting his jollies off to my little girl peeing. There has to be some kind of law against this. I'm sorry but i would rather have a female nurse walk in the bathroom with me and a male walk in the bathroom with my husband when taking a UA then to have a video camera watch me when i don't know wether or not they are recording it. And I don't appreciate all those female nurses looking at my husbands private, that is for me and me only, believe me i'm not embarassed of what he's got . i'm actually very proud lol, but it's just the point that i feel it is sick and goes against our right. i'd like to hear some other peoples in take on this."
I can absolutely understand this woman's anger since female nurses were looking at her husbands genitals, something that she and she alone should be doing. It also talks about what goes on behind the glass partition. What the nurses were doing and the complete lack of safeguards to stop them from abusing the system, and more importantly a female watching a male urinate, which is not common practice or acceptable. The second paragraph is from an entirely different forum and again I have nothing to do with the following statement's nor do I embrace or endorse what is being said, but it's subject matter is germane to this issue I am writing about and gives us both an opinion from a different patients perspective. The first states verbatim:
"Today was quite humid so I went to their toilet before being "dosed" (I really hate that word for some reason), pulled down my pants to my feet, and used some toilet-paper to wipe the sweat from between my legs, balls and arse-cheeks... just generally 'freshening up' as I walk long distances each day to get to the clinic and university. Whilst washing my hands I looked up and realised there's one of those round dark tinted plastic half-spheres with a camera in it pointed directly at me and the toilet?! I had used the toilet before this to urinate many times but had never before noticed I was on film until today. Now I'm a pretty free, open and physically liberal guy, and usually don't have any qualms about people seeing me naked, BUT there's something really strange about people video-taping you while you're intimately cleaning your privates. It's not even something I would be comfortable with my partner seeing, yet alone some random methadone-clinic workers I barely know. I can't shake the feeling that my privacy has been severely infringed upon..... I was thinking maybe the reason for it was that they needed to make sure that the urine tests they sometimes conduct aren't faked or adulterated (maybe because some people are under legal restrictions with probation or something?). Secondly there's the obvious factor that it could be to stop people from shooting up in the toilet. Even though I think neither of these reasons warrants video-taping people in the toilet, at the very least they could put a sign up saying: "NOTICE: TOILET UNDER VIDEO-SURVEILLANCE" or something. What does everyone else think of this? Is it normal? Am I being too sensitive? It's a strange situation as the Kobi Clinic is privately owned (as far as I know), not public like some of the others. However, surely filming someone naked without their knowledge - even if it is on private property - is against the law? Either way I am now looking for somewhere else where I can finish the Suboxone program as I don't think I will ever be comfortable talking to the same people each day whom I'm pretty sure just watched me scrubbing my perineum and associated areas clean..... I even did that thing where you wipe between the cheeks, inspect the paper only to realise there's a bit of fecal matter and then going through the motions to remove it, checking each time."
Although the individuals who wrote the complaints was not the most belletristic, their point is crystal clear and spot on. I can absolutely understand the frustration and humiliation that the individuals went through. This is a real life example of what happens in a bathroom an we need to be completely candid about this. Video camera's do not belong in bathrooms, people do and that's the bottom line. I am asking that all methadone treatment centers take all of this into consideration and ultimately do not install camera's in the urine collection area. In addition return the bathroom to a 'normal' looking and functioning bathroom as soon as possible because of the numerous reasons I have mentioned above and the much more crucial reason to all methadone treatment clinics, potential lawsuits over video surveillance in what is considered by all to be a private area which is immune to the public eye, a key point when considering the potential for infringement upon the 4th amendment. There are far more serious implications and ramifications that could occur if someone wished to pursue a lawsuit over the handling, viewing and misuse of video-surveillance, not to mention the vulnerability of hackers to intercept video transmissions. I would like to also site a few court cases in which the 4th amendment was acknowledged as being infringed upon when video-surveillance was used, even knowingly in an area considered to be private.
The U.S. Supreme Court in Katz vs. United States 389 U.S. 347 (1967), defined modern "search and seizure" law under the Fourth Amendment. The Court declared that "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Generally, a person walking along a public sidewalk or standing in a public park cannot reasonably expect that his activity will be immune from the public eye or from observation by the police. As recognized by the Supreme Court in United States vs. Knotts 368 U.S. 276, 281-82 (1983):A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [an individual] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, and the fact of his final destination when he exited from public roads onto private property.
Following this reasoning courts, for the most part, have allowed police to videotape individuals on public roads. Transactions in plain view in a public forum generally do not raise Fourth Amendment issues. This is known as the plain view rule and open field doctrine. If a person does something illegal in plain view (e.g. in front of a video camera), an officer would not need a warrant to search that person to find the incriminating evidence. Court decisions interpreting and applying the Fourth Amendment do not classify this situation as a person, house, paper, or effects that are protected against unreasonable search and seizures. In a recent unpublished opinion, United States vs. Sherman, 990 F. 2d 1265 (9th Cir. 1993), the Court of Appeals for the Ninth Circuit held that individuals videotaped in public view have no reasonable expectations of privacy, and could not challenge the government's use of videotape at trial as violating the Fourth Amendment. When this test is applied to video surveillance of public streets, the prevailing legal view is that it does not violate the Fourth Amendment. In contrast, surveillance by the government of activities occurring within an individual's house may violate the Fourth Amendment. The Supreme Court has developed a test to determine if such surveillance violates the Constitution:1. Does the surveillance occur from publicly navigable airspace? 2. Is the surveillance conducted in a physically non-intrusive manner?
Before answering these questions to see if they are applicable to the treatment centers if cameras were installed in the urine collection area we must first define intrusive. Intrusive is defined as making an unwelcome manifestation with disruptive or adverse effect (of a person), or disturbing another by one's uninvited or unwelcome presence. The first sentence deals with surveillance occurring from publicly navigable airspace? Is the urine collection area publicly navigable airspace, the answer is NO, the airspace in question is a private 'area' which was formally a restroom used by patients for the sole purposes of collecting urine drug screens and therefor would be considered private and not public and therefor would be considered intrusive and by definition and implication an infringement of the 4th amendment. The Second standard states" is the surveillance conducted in a physically non intrusive manner". Physically the camera is intrusive, being that it is placed in a private, not public area and is quite unwelcome by all patients given that the business conducted in the area in question is expected to be out of the public eye and is private. The camera is intrusive in the manner that it is placed in an area that is normally considered to everyone to be private and intrusive in the manner that is is a direct unwelcome manifestation of a new observation technique and is very disturbing and unwelcome in a private area such as a urine collection area. One would not consider a waiting area to be private or the parking lot private, but a restroom or urine collection area where an individual is unclothed or is exposing his or her genitalia and performing other bodily functions such as urinating and defecating, cleaning ones body, is most definitely considered private to the individual, and private to all treatment centers. Since that particular area is used solely for patients to collect a urine specimen it is considered private, and therefor would constitute an infringement of the 4th amendment due to it's private creation, inference and private purpose.
The Fourth Amendment of the United States Constitution protects
the "right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures."
Government activities that qualify as a "search" must be
accompanied by a properly issued warrant based on probable cause.
If government video surveillance is not a "search" under the
Fourth Amendment, then no warrant is required.
The United States Supreme Court has defined "search" broadly, such that even non-invasive surveillance may qualify. A "search" is not just a "physical intrusion into [a] given enclosure," but rather whenever a reasonable expectation of privacy is infringed. Whether an individual can claim a reasonable expectation of privacy rests on two questions: (1) has the individual shown that "he seeks to preserve [something] as private?" and (2) is the individual's subjective expectation of privacy "one that society is prepared to recognize as 'reasonable'?"
To sum up my intention for writing this letter I first want to share with you my feelings about the most sacred and important document ever drafted in the history of mankind, the Constitution of the United States. The Constitution is a document written and signed by the founders of our nation that is the core basis of all of our laws. The Constitution is the most important thing in the life of every person living in the United States. Our way of life is built around it, our government is based on it, and our rights and privileges as a United States citizen are protected by it. To be ignorant of this, is to be ignorant of all things our country is. I took an oath at the age of 18 to protect and defend the Constitution against all enemies, foreign and domestic when I joined the United States Army. I am duty bound by that oath if only morally until the day I die. I believe it is the duty of every citizen to uphold these sacred rights, and any violation or infringement that is made against them should be immediately addressed by the people, for it is our solemn duty to do so. It is my belief that video-surveillance collection of urine drug screens verses actual human observed collection by same sex observers is unconstitutional and should be banned by all treatment centers in West Virginia immediately. Thank you for reading and considering my view on the validity, morality and legality of video-surveillance urine drug screen procedures.
Michael Dale Sipes, Jr. MLT