In a move that will likely embolden other states, a federal appeals court upheld a first-in-the-nation law that prohibits prescription data identifying patients or prescribers from being used for marketing purposes. Pharma challenged the law, citing a First Amendment right to track prescription records, while state officials argued the law protected doctor-patient relationships, promoted patient safety and contained health care costs.
Drugmakers want this data so they can learn which docs are high prescribers and figure out who to target for the hard sell. Two research firms, also known as data miners, IMS Health and Verispan, challenged the law and called it unconstitutional. They received backing not only from industry, but also free-speech advocates. Consumer and patient groups lined up behind the state, citing patient privacy and a need to lower health costs. Last year, a federal judge agreed with IMS and Verispan (back story).
The three judge panel wrote: "In our view, the portions of the law at issue here regulate conduct, not speech. Unlike stereotypical commercial speech, new information is not filtered into the marketplace with the possibility of stimulating better informed consumer choices (after all, physicians already know their own prescribing histories) and the societal benefits flowing from the prohibited transactions pale in comparison to the negative externalities produced. This unusual combination of features removes the challenged portions of the statute from the proscriptions of the First Amendment.
"There is a second basis for our decision. Even if the Prescription Information Law amounts to a regulation of protected speech - a proposition with which we disagree - it passes constitutional muster. In combating this novel threat to the costeffective delivery of health care, New Hampshire has acted with as much forethought and precision as the circumstances permit and the Constitution demands," the judges wrote in their 148-page ruling.
"This is an important decision for data privacy advocates,” according to Sean Fiil-Flynn, a lawyer for consumer groups that filed friend-of-the-court briefs and associate director of the Program and Information Justice and IP at Washington College of Law, American University. The court "refused to apply the First Amendment here, where 'information itself has become a commodity' and explained that applying the First Amendment to such trade in prescription data ’stretches the fabric of the First Amendment beyond any rational measure.’”
In a joint statement, IMS and SDI, which owns Verispan, said: "We are disappointed with the First Circuit Court of Appeals decision. Two federal courts previously have examined the issue and validated the view that the First Amendment protects the dissemination of prescriber-identifiable data, which we believe is vital to efforts to improve the quality, efficiency and safety of our healthcare system. We are currently reviewing the decision and evaluating potential next steps.”
Hat tip to PostScript
4 Comments
Pharma has become the "new" mob at taking First Amendment rights from patients. Give me a break. This amounts to nothing but bullying by pharma to aggressively track prescriptions. Armed with this data, pharma knows where to send the best offensive/defensive reps to twist and mince words to drs if needed. I have seen this ugly display more than once.
As new laws are enforced, pharma will find new and improved ways to take dr/patient data and bully doctors with that private information. Doctors hate to see reps for this very reason.
Pharma can easily track drug sales without dr/patient disclosures. As pharma gets more brave and bold, Americas need more protection by people like these judges who refuse to validate big pharma demands.
The use of IMS data by pharma comapnies is disturbing. I believe it is another form of kickback.
What the data allows the companies to do is direct all their resources to high and possibly medium prescribers of specific drugs/drug classes. This means that the company marketing departments, sales departments and medical departments devote all their resource of samples, patient ed materials, medical information resources, free meals for providers and their staff to only those that make the cut. But don't all MDs deserve to have the same information provided? Shouldn't every provider that treats a disease state have access to free samples, patient resources and medical information also for their patients?
The attention and dollars that companies disproportionately spend on 'high' prescribers needs to be a target of the OIG.
Doc,
You have it exactly right. But I can add this, and this is where it gets tricky, some Doc's know the data is being mined and count on it to receive invitations to become "key Opinion Leaders" in certain regions. This entitles them to participate in fully paid jaunts to nice locations - quality time away from the monotony of having to be with the patients.
The information is also used to build and create CME events (glorified marketing campaigns, that are used to "re-frame" clinical information) to increase scripts in one area versus another.
How does this all happen? Well doctors are led to believe that clinical data provided is pristine (it isn't it has been sifted and "re-stated"), in many cases not even the PI can see the raw data.
As I have said countless times, the perfect storm.....
Yes, pharmcos use script writing data to drive marketing and promotional efforts. That's called doing business. It's done by every business on the planet. With limited dollars, every business needs to focus their efforts in the most effective way (even physicians). It's sales and marketing 101 - pay a lot of attention and reward your top customers (20%), try to move the middle ones who have potential to the top (60%), and don't waste too much time on the bottom 20%.
The patient data that is matched back to physician is de-identified. Nobody knows what patients are tied to which physicians as this data is stripped off prior to crunching the numbers and never the train shall meet. It's all aggregate data and all completely HIPAA compliant.
But I do agree with Doc that all physicians should have the same access to medical information and patient education materials.