| Previously, regulars at Vermont's Green Mountain Daily have written fairly extensively on Pharmacy Phishing, the practice of the Vermont State Police doing fishing expeditions of pharmacies statewide to scan for information that might tie people to patterns of illegal drug use, even though it would give them illegal access to the personal data of a great deal of innocent individuals as well.
This article isn't directly about the pharmacy phishing scandal, but it is about the practice of treating medical and prescription data like something to be shared readily and easily. This time it's not directly about patient data (though there are some risks of that being released) but the prescribing practice of doctors and the ability of sales people and other entities to use those practices to inappropriately influence and assail doctors.
So let's start with Friday. A group of us at GMD received a copy of the following e-mail. I apologize for the size of the quote, but I can't find it online anywhere, so I'd like to include the whole context.
VERMONT ENACTS 'TEMPORARY REPEAL' OF
PRESCRIPTION DATA RESTRAINT LAW
MONTPELIER, VT, March 6, 2008 - Vermont Governor Jim Douglas yesterday signed into law what he described as a "temporary repeal" of a law passed last year that restricts the collection and use of provider-identified prescription data. The new law defers the effective date of Vermont's data restriction law until July 1, 2009. Prior to that date, the U.S. Court of Appeals for the First Circuit in Boston is expected to rule on an appeal by New Hampshire of a federal district court decision that found comparable New Hampshire legislation unconstitutional.
Notwithstanding the change in the effective date, a lawsuit filed by IMS Health, Verispan and Wolters Kluwer Health challenging Vermont's data restriction law is scheduled to be heard in federal district court in Brattleboro Vermont on July 28, 2008. In legislative hearings, the Vermont Attorney General's office has described the chances of successfully defending the law as an "uphill battle."
The New Hampshire law was ruled unconstitutional by a federal district court in April of last year and the state has sought to appeal the decision. Oral arguments before the First Circuit Court of Appeals were held in January, and a decision is expected by mid-year.
"We are pleased that the effective date of Vermont's data restriction law has been deferred. These types of laws serve neither to improve healthcare nor lower healthcare costs," said Robert H. Steinfeld, IMS senior vice president and general counsel. "This kind of legislation is inconsistent with the fundamental constitutional values that protect the free flow of information. It's also contrary to the current national movement toward more information and greater transparency in our healthcare system to enhance patient welfare and outcomes. It doesn't serve the public interest to impair the free flow of important, accurate information to the healthcare community."
In a separate legal action, Maine's Attorney General is now seeking to stay proceedings in that state's appeal to the First Circuit of a Maine federal district court decision issued in December 2007 preliminarily enjoining the enforcement of a similar data restriction law in Maine. He is seeking the stay pending the First Circuit's decision in the New Hampshire appeal.
Other states, which have considered their own data restriction laws, have moved away from these proposals upon closer analysis of their merits, and in light of the two previous federal court decisions invalidating such laws on First Amendment grounds.
IMS Health, Verispan and Wolters Kluwer Health are health information companies that collect and analyze provider-identified prescription data and then sell information, analytics and consulting services to government agencies including the DEA, FDA and CDC, departments of health, academic researchers, pharmaceutical companies, biotechnology companies and generic drug manufacturers.
The three companies and others maintain that provider-identified prescription data has great public health value. The data is used to study prescribing trends, monitor the safety of new medications, support safety-oriented risk management programs, prevent prescription drug abuse, expedite drug recalls, recruit for clinical trials, and study treatment variability and outcomes.
Provider-identified prescription information is completely patient de-identified and patient privacy is fully protected by federal law under the Health Insurance Portability and Accountability Act (HIPAA) of 1996. In addition, IMS Health, Verispan and Wolters Kluwer Health add further safeguards, including encryption, to ensure that patient privacy is vigilantly safeguarded.
The source of this message is a press release from IMS Health, Verispan and Wolters Kluwer Health. These are companies which make a practice of collecting data from doctors and using them for various purposes, but primarily information collection for the purposes of aiding salespeople.
So let's be clear about this. When Robert Steinfeld, Senior IMS VP, claims that "this kind of legislation is inconsistent with the fundamental constitutional values that protect the free flow of information," he's trying to pretend that this has something to do with the constitution. When the government of Vermont capitulates to these corporate opportunists, he's giving them support for a practice to which they have no claim to advance as a right.
In fact, here is the specific part of the legislation which has been nixed:
A health insurer, a self-insured employer, an electronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriber-identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents . . . Pharmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents as provided in subsection (c) of this section.
(You can see the full text of this legislation here)
Now, there are open question as to why Gov. Doglas may have chosen to nix the above language. It could be that he's trying to avoid a costly lawsuit by getting ahead of the curve. If so, he's failed. The companies involved are ready to proceed with the lawsuit, regardless of the executive order.
To me, the more likely scenario under this administration is that it simply doesn't give a damn about privacy rights. If you look at the history of this administration and medical data, you can see a pattern of complete and utter disregard for privacy with respect to prescriptions. What's more, as I wrote last month, Republicans have been trying to scuttle this aspect of the legislation. They failed (miserably) at the attempt, but where they failed, Douglas has been able, with the stroke of a pen, just delay the roll out of it.
A final sidenote: I don't know if I'm just looking in the wrong place or if I'm just not good at navigating the State of Vermont's web site, but I can't find anything on the Governor's site indicating his temporary restriction.
I wonder if this is something he doesn't want getting a lot of publicity. |
