Last week, in our summary of state bills, we summarized AB 2112, a bill that seeks to regulate prescription privacy—in other words, prohibit data mining. Specifically the legislation, which was modeled after a similar law in New Hampshire, “reined in the sale of doctors’ prescription records for marketing purposes,” according to The Californian.
The legislation, which was introduced by California Assemblyman Bill Monning (D-Carmel), would enact the Prescription Record Privacy Act, prohibiting a person from knowingly disclosing or using regulated records that include prescription information containing individual identifying information for marketing a prescribed product. The bill would also require that any person who knowingly fails to comply with these provisions be subject to an administrative penalty of at least $10,000.
Although the bill was referred to the Assembly Committee on Health and Judiciary on March 11, 2010, Mr. Monning “shelved his bill realizing he did not have the necessary votes to pass” in the Assembly’s Committee on Health, which was scheduled to vote on Tuesday. Staring at the face of defeat, Monning “said he might reintroduce the bill, aimed at big pharmaceutical companies, in January if he can drum up enough support.”
He told the California newspaper that he was going to “use this time frame to build more support and do more outreach.” Monning further claimed that he “didn’t have the time to cultivate members’ understandings of the issues.” In reality, members of the Assembly, patient groups, physicians, and the medical industry all understood the issues clearly—prescription data is a valuable and legal source of information for companies to use because it helps doctors decide what treatments and medicines are best for their patients. Physicians have the right to know what their colleagues and members in their field of practice or specialty are prescribing, and patients will benefit from this information as well.
While some critics think drug makers use the data to push their products instead of what’s best or more cost-effective for patients, we ask those opponents to look at a recent report, which showed that 75% of drugs prescribed last year were generic. Clearly then, prescription data is being put to good use, either because doctors are realizing they can prescribe generics over brand-names, or because they are changing patients off brand names to try generics.
This kind of legislation is harmful, and borderline unconstitutional, since it essentially prohibits free speech, which is protected under the First Amendment, by preventing information from being shared with physicians. Even though Mr. Monning believes that “access to a doctor’s prescribing habits allows drug companies to target physicians who might be more receptive to their sales pitches,” there is no evidence to support this claim. As a result, drug companies that “possess an individual physician’s prescribing data allows them to reach doctors quickly and directly with unique information they might not otherwise get.”
This information is crucial for physicians who are facing a highly complex clinical practice and seeing numerous patients a day. With barely enough time to see patients each day, and a projected shortage of 150,000 doctors in the next decade, do we really want legislation that prevents doctors from knowing about treatments and medicine they could be giving us? What’s next, preventing your doctor from seeing your blood test results or X-rays for fear that he might prescribe more tests or give you a prescription?
Bills like this are likely to take a back seat in the next year as states go into overdrive attempting to pass legislation to make them compliant with the recently passed federal healthcare reform bill. All efforts will be focused on ensuring the successful implementation and finding sources of funding for the additional patients that states will be required to insure. Also, setting up 50 high risk insurance pools will take time for many of the smaller states.