A bill that would allow pharmacies to distribute customers’ information and provide reminder mail about their prescriptions has made it through the California Senate and is waiting for review by the Assembly.  Senate bill 1096, the Confidential of Medical Information Act (CMIA), would allow pharmacies and third-party health information groups to contact patients by mail to remind them to fill prescriptions, a move advocates of patient and prescriber confidentiality worry would open the door for pharmaceutical companies to market in even more direct and personal ways than they do now.

PostScript talked about the bill’s potential reach with New Hampshire Rep. Cindy Rosenwald.  Rosenwald, who chairs the Health, Human Services and Elderly Affairs committee, is the sponsor of New Hampshire’s embattled Prescription Data Privacy Act, which is currently under appeal in the U.S. 1st Circuit Court of Appeals. 

P.S: What would the passage of CA S.B. 1096 mean for patients?

C.R: I think everybody has something to gain, except the patient. The pharmacies have something to gain, by selling the patient’s info.  Second, they have something to gain if that patient fills the Rx. I believe the pharmaceutical industry [has something to gain], because now they know the end end user of their products.

But many people feel that’s another form of marketing.  Because it’s in the pharmacy’s interest to have that patient fill that Rx again. There are many reasons someone might not refill their prescription, not the least of which they can’t afford them.  You may have filled a prescription for one medication, but it didn’t work or you didn’t tolerate it. But if you get a letter from the pharmacy, it’s not hard to see a patient getting confused and filling the wrong prescription, or both.

P.S: Your recent presentation at the National Legislative Association to Reduce Drug Prices (NLARX) in Charleston, West Virginia outlined ways the pharmaceutical industry is getting around HIPAA – is this a case of the pharmaceutical or pharmacy industry getting around a stronger state law?

C.R: HIPAA’s definition of marketing is too narrow. If the communication is related to the individual’s treatment, HIPAA says it’s not marketing.  To me, that’s marketing.

States are not allowed to loosen HIPAA. What the California bill would allow, if passed, is to break through that law, because pharma may be able to sign a business associate agreement with pharmacies.

The business associate is obligated to follow the same laws as the HIPAA–covered entity, but the covered entity is only liable if they knew or had reason to know of violations. There is a huge, huge gaping loophole.

I did hear an example of that happening in New Hampshire. A woman was taking an expensive hypertensive. She stopped filling her prescription because her doctor had given her free samples, and three weeks later she got three letters. One was from her insurer, one was from her pharmacy, and the third letter was from the drug company – which really upset her.

Why is it a drug company’s responsibility to have a patient adhering to a particular medication? It’s the responsibility of the doctor, the patient, and maybe the insurance company.  I don’t even think it’s the pharmacy’s responsibility.

So I don’t see this as a healthcare issue, I see it as a marketing issue.

P.S: Are there characteristics of its passage that suggest this is unique to California and might not happen the same way in say, New Hampshire?

C.R: It looks like the California Senate wanted to allow this.  I’m not sure our data mining ban [New Hampshire’s Prescription Data Privacy Act] would prevent that kind of activity here, if they came to us.  But New Hampshire is fiercely protective of individual privacy. 

I know that [the CMIA] failed narrowly in the California Senate the first time.  And then they brought it back, with an opt out, and then it passed. Between 1 and 3 percent of consumers will opt out.  And then, I believe there’s absolutely no control over what they will do with the information.

P.S: What does this mean for the data-mining legislation, both in California and more widely?

C.R: I know California looked at a data-mining ban, but most of those bans focused only on prescriber identity. The part of the [New Hampshire] law that’s in litigation is only related to prescribers.  So the patient protections are still in force in New Hampshire.

I think if the bill becomes law, that’s not good for patients.  There’s no reason to believe the pharmaceutical companies have the patients best interest at heart.