TAMING THE INFORMATION BEAST: STATES CONSIDER HOW TO RESTRAIN COSTS, PROTECT PATIENTS
Volume 28, Issue 496 July 23, 2007
As health information technology transforms the health-care landscape, lawmakers are debating how best to protect patients. At least 13 states are considering legislation that would limit the purchase and transmission of information on doctors’ prescribing patterns.
In so-called “data mining” transactions, health information companies buy data on physician prescribing patterns from pharmacies. Matching the data to information on physicians provided for a fee by the American Medical Association, these data intermediaries create detailed records on how 700,000 U.S. doctors prescribe any of 10,000 drugs. Wall Street analysts, researchers and drug companies can buy the records and use them to, among other things, paint a crystal-clear picture of an individual physician’s prescribing patterns.
Opponents of data mining argue that drug sales representatives use the data—along with gifts, free lunches and luxury vacations—to pressure doctors into prescribing pricey brand-name drugs. That drives up overall drug expenditures, says New Hampshire Representative Cindy Rosenwald. “I have a background in marketing, and I know that if you can find out where your customers are and tailor your message to them, you can be much more effective,” she said.
Plus, the practice violates physician privacy, Representative Rosenwald argues. “Drug companies are peering into physicians’ brains without any permission from them,” she said. “We would never accept that on an individual level.”
Representative Rosenwald sponsored the nation’s first law (HB 1346) on this issue, enacted in June 2006. The law prohibits, and provides criminal penalties for, the commercial use of data that includes identification of the prescriber. Data may be collected, transferred and sold for commercial purposes as long as it does not name individual prescribers.
In July 2006, IMS Health and Verispan LLC, two leading health information companies, filed suit to prevent the state from enforcing the statute. The companies claimed the law restricted access to prescriber information that is an “important metric for patient safety, evidence-based medicine and pharmaceutical marketing.” On April 30, 2007, U.S. District Court Judge Paul Barbadoro struck down the law, on grounds that it violates the First Amendment by restricting commercial speech. “Alternatives exist that would achieve the State’s interests as well as or better without restricting speech,” he wrote.
Verispan and IMS executives hailed the ruling. “We know some states are still considering legislation modeled on the New Hampshire law,” said Robert H. Steinfeld, IMS senior vice president and general counsel. “This important decision by Judge Barbadoro clarifies that the Constitution protects the dissemination of provider-identifiable information, which is also vital to ensure patient safety and improve health-care quality.” Because the information at issue does not identify individual patients, patient privacy was not an issue in the litigation, company officials said.
Representative Rosenwald expressed disappointment, saying, “Corporate interests took precedence over the needs of the people in New Hampshire.” She says the state will appeal, and she doesn’t believe the ruling will stop lawmakers in other states. “I don’t think this issue is going to go away.”
Just the Tip
The New Hampshire law is just one tip of an iceberg of issues that are emerging as health information technology is adopted by more and more providers. Another such issue is whether drug companies should be allowed to “message” physicians when they’re entering drug prescriptions into a hand-held or desk-top computer. These ads—which may appear as “pop ups” on the computer screen—urge physicians to consider using a specific drug or pharmacy.
On June 20, Maine passed a law (LD 1440) that will regulate the advertising embedded in electronic prescribing software. “As Maine joins other states and the federal government in a major shift to electronic health records, electronic prescribing software has become fertile ground for drug company marketing tactics,” said sponsor Representative Sharon Treat.
The law prohibits the sale or use of software that sends ads to health-care providers at the point of prescribing. “This bill will prevent the use of drug advertisements such as pop-up ads embedded in electronic software used by physicians and other prescribers,” said Representative Treat. “Neither patients nor their health-care providers need to be bombarded with advertising when important health-care decisions are being made.”
Similar laws have already been enacted in Florida and Vermont, Treat notes.
Adapted from an article in the June issue of State Legislatures magazine.
© Copyright 2007, State Health Notes
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