As part of a comprehensive package to control the costs of prescription drugs and regulate inappropriate marketing tactics, Vermont recently passed legislation that provides strong privacy protections by limiting the use of personally identifiable prescription information for marketing purposes unless doctors and other health care providers explicitly agree to waive the protections. The law, S.115, includes a physician opt-in provision at the time of licensure or renewal. This provision, managed by the state's professional licensing board, allows a prescriber to choose to have his or her identifying information used for marketing and promotion of prescription drugs. The Vermont Medical Society supports the measure.
Lawmakers in the House Tuesday rejected a proposed repeal of last year's bill restricting "data mining" research by companies into doctors' prescription writing habits. Instead, they voted to tweak the law while leaving its basic structure in place.
[...]
"I don't think it is going to accomplish much," Rep. Tom Koch, R-Barre Town, said of the law passed last year. "You really have to look at your chances of success and what there is to be gained."
Koch proposed an amendment essentially eliminating the data mining restriction from last year's law. Koch's amendment was defeated in a 42-86 roll call vote, and the underlying bill adjusting the law gained initial approval in the House by a voice vote. If the bill wins final approval today it will move on to the Senate.
Unsurprisingly, corporations which specialize in data mining oppose the law:
Companies that specialize in that prescription research have been critical of the law.
"We don't understand why they passed this law in the first place," Randy Frankel, vice president for external affairs for IMS Health, one of a few companies that specialize in gathering and selling prescription-writing data, said recently. "They hastily wrote a bad bill that is now a bad law.
We've talked about this a bit before. I won't give the whole history, but you can visit Green Mountain Daily's Pharmacy Fishing Archive for all the stories about collection of personal data by Vermont State Police on medical data from pharmacists throughout the state of Vermont.
Well, it's just gotten a bit more interesting. In some of the earlier discussion (I don't recall how much of this was private discussion and how much was posted online) involved a database to try to get a handle on illegal prescription drug use. What I didn't realize at the time was that the Department of Health had already begun developing that database and has, in fact, put out bids for the creation of it.
I'm a tech geek and know databases and secure information management extensively. After the fold, I'll try to explain exactly what this database can do, doing my best to translate tech geek into standard human English.
(This one really needs to stay on the radar. - promoted by JulieWaters)
The Valley News has an editorial alerting its readers to the issues of Vermont police going fishing for wholesale pharmacological records without a warrant.
The NH primary is exciting, but let's not forget the legislature and the local warrantless searches and seizures that we might actually be able to do something about.
NanuqFC
In a Time of Universal Deceit, Telling the TRUTH Is a Revolutionary Act. -- George Orwell
For background, on this story, I've tagged all the related stories at Green Mountain Daily (GMD), so they can all be accessed via this link.
The short summary: VT state police went to at least three pharmacies in the state, and asked them for large scale data dumps of patient records. Green Mountain Daily found out, and a team effort brought this whole thing out into the open.
That said, I will once again quote the fourth amendment, but marked up the way I think that it's seen by some individuals:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Vermont State Police admitted Friday that detectives recently asked three pharmacies to hand over all their information on patients prescribed powerful painkillers, despite a directive from state law enforcement officials not to do so.
Lt. John Flanagan said three State Police detectives requested that information from three pharmacies in Vermont during the last two weeks, but that supervisors have now put a stop to that effort.
"Mistakes were made," Flanagan said. "From our perspective this is a training issue and we have taken steps to remedy it."
This directly and completely contradicts what Major Tom L'Esperance was desperately spinning saying on Mark Johnson's show. In that appearance (and you should listen to the podcast - it would seem to be a complete fantasyland account based on what we now know), he insisted it was an isolated misunderstanding at one pharmacy, and proceeded with an elaborately detailed counter-history of the incident. I'm not saying he personally made it up - but somebody sure did. Circling the wagons doesn't work when the wheels all fall off.
But the word that this was all just a "training issue" needs a bit more explanation. Is that to say that three full Detectives spontaneously across the state had some sort of rookie-mistake breakdown? Please. And what is the third pharmacy in question? We currently know that pharmacists at Fairfax Pharmacy and Wells RIver Pharmacy were approached. Who else?
The State Police need to come clean about the full extent of this program, and what specifically the plan was for implementation. There's still an email out there, supposedly sent last Friday when pharmacists started pushing back, that is likely going to be incriminating when it finally surfaces (and it should be a matter of public record).
This has been crossposted to Daily Kos. Note: I wrote the diary intended for both audiences, GMD and Kos, so I apologize if I spend too much time explaining Vermont politics or history, but wanted to be thorough enough for both audiences without having a radically different document from one to the other --julie
There are all kinds of substances to which we are exposed at some point in our lives. Properly employed, many substances are beneficial and can have positive, productive or healthy side effects.
However, when abused, they can have tragic consequences for the substance abuser. When substance abuse affects an entire community, an entire neighborhood can go downhill fast.
In Vermont, we are seeing an epidemic of substance of abuse. The substance being abused is power and the substance abuser is our State government.
The quality of life in our civic neighborhood is deteriorating as a result of the addictive and destructive behavior of a power abusing state.
Why Vermont needs an intervention, after the jump.
UPDATE: Based on confirmation from law enforcement sources, pharmacies that were approached by the State Police on Friday November 30th and from legal sources representing people affected by State Police conduct last Friday, GMD can add the following to the reporting that has occurred already.
The Department of Public Safety was planning last weeks pharmacy checks ("Fishing Derby Friday") for several weeks.
The State Police visited multiple pharmacies on Friday November 30th.
At least twothree pharmacies were told to by the State Police to turn over patient profiles for every patient who received a schedule II prescription from that pharmacy.
At least one pharmacy was told it would be required to update the patient profile information with the police every two weeks.
At several pharmacies the police merely introduced themselves to the pharmacist, gave their business cards and asked the pharmacist to call the police officer if they encountered any suspicious behavior such as indications of "Doctor shopping" or prescription fraud.
Late Friday, due to intense push back and complaints from pharmacists who were concerned about requests from the Vermont State Police that they reveal confidential and federally protected medical information about their customers, State Police management sent an email to all State Police involved with the pharmacy checks throughout the state instructing them to cease the pharmacy checks. After the email went out, Fish Derby Friday ceased (for now).
It's always good to start with the constitution, this time from Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Yesterday, Green Mountain Daily scooped all the Vermont news outlets by publishing a story about state police collecting pharmacy records across the state. You can find the original piece here.
UPDATED with link to the full report. 2:33 p.m. JMc.
Following up on yesterday's report below; it may or may not be the case that Pharmacists are required by state law to provide the prescription records of all Schedule II medications to State Police as is being demanded of them.
The Pharmacist I spoke to contacted the Secretary of State's office and was advised to comply, however that advise would seem to be in conflict with a report the state Department of Health submitted to the legislature this year specifically in reference to the law which gives police their authority to examine such records (18 VSA 4218). From the report:
"HIPAA contemplates that state laws may conflict with its terms and has been written to address those situations. HIPAA, by its terms, preempts provisions of state law that are contrary to HIPAA, unless state law affords greater privacy protection. When state law affords greater protection than HIPAA, the state law is not preempted and the covered entity must follow state law.
HIPAA regulations provide that a state statute is "contrary" to HIPAA if it is impossible for the covered entity to comply with both HIPAA and the state law or if the state law stands as an obstacle to the accomplishment of the full purposes and objectives of HIPAA. 45 C.F.R. ยง 160.202. Applying this standard, conflicts between HIPAA and section 4218 of Title 18 must be resolved by the covered entity on a case-by-case basis. The pharmacy, as a covered entity, must determine whether HIPAA permits the requested disclosure to DPS, and that determination will depend on the circumstances of the request for the protected health information. As in the examples above, there are circumstances where complying both with HIPAA and section 4218 would not be impossible and the disclosure would be permitted.
In the event the pharmacist determines that HIPAA does not permit the disclosure, he/she is required by HIPAA to refuse disclosure. Since HIPAA would preempt state law in this case, section 4218 of Title 18 would not control and the pharmacist would not be in violation of section 4218 for refusing to disclose.
For these reasons, VDH and DPS conclude that section 4218 is not contrary to HIPAA. Correspondingly, since the pharmacies are bound by HIPAA and may disclose information only as permitted by HIPAA, any medical privacy concerns are addressed by HIPAA and no revision of section 4218 is necessary."
This would seem to put pharmacists on the hot seat in a big way. They've got the State Police demanding they dump these records in an unprecedented (and unconstitutional) way, the Secretary of State's office advising them they must comply - but the Department of Health telling the legislature it's really up to the Pharmacist to make a judgment call on whether or not the request violates HIPAA, as the State law is not supposed to supersede the federal regime.
If I were a pharmacist, I'd be pissed off. Obviously, if I were a patient, I'd be pissed off.
Another fiasco brought to us by Vermont's executive branch...
A few weeks back, Caoimhin wrote a fantastic diary expressing concerns over proposed implementation of 2005's legislation creating the Vermont Prescription Monitoring System. At the time, he wrote:
The Department of Health is in the process of seeking legislative approval of administrative rules the Department drafted to govern VPMS. The proposed rules will monitor your physician's provision, and your access to, hundreds of treatments for thousands of conditions. The purpose of the law is intended to identify substance abusers and to facilitate their treatment -- nothing inherently wrong with that and in fact it is a laudable goal. However, the proposed regulations by the Department of Health do not accomplish the goal set out by the legislature, violate the laws governing the VPMS and present too many dangers for disclosure, misuse, mishandling of sensitive patient medical information.
As CL stated, the law mandates collecting the minimum necessary information to achieve it's stated goals.
But instead of the Department of Health, we apparently needed to be watching out for the State Police.
GMD has learned that State Police representatives are going to Vermont Pharmacies and demanding complete dumps of all information about patients with Schedule II prescriptions (the class of medications that include prescription drugs with street value). After talking to a few pharmacists, I found one in Franklin County that confirmed they had been approached, and had been advised by the state that they did, indeed need to comply with the request. Needless to say, he wasn't too happy about it.
What's even more disturbing? When I asked if he knew of any other pharmacies that were being mined for data in this way, he responded that it was his understanding that this was a process that was to take place across the state.
Sounds to me like the State Police is actively putting together a medical records database of Vermonters across the state for the purpose of, as this pharmacist opined, "fishing expeditions."
And if you think something of this magnitude wasn't signed off on by the Governor's office, you're kidding yourself.
Thousands of us face myriad barriers -- financial, access, policy, intentional corporate interference and other impediments -- when it comes to receiving basic (or any) health care.
With a health care delivery system imploding in front of our eyes, the Vermont Department of Health is going full-bore with a new initiative. To aid physicians and patients in these troubled times of healthcare delivery collapse, the Department of Health has deputized enlisted the helping hands (and eyes) of law enforcement throughout the State.
Thinking of having surgery? Got a chronic condition? Do you have a spouse or family member fighting cancer? Does your child struggle with ADHD? Well, guess what the Department of Health's brand spanking new program will do to for you. For starters, it's designed:
-- to spy on patients, and -- to monitor the specific treatment practices your physician provides for you, and -- to transfer your confidential medical information to various police agencies and state investigators, all in contravention of Vermont law . . .
For background, on this story, I've tagged all the related stories at 
