Limiting access to physicians’ prescriber data

They are watching as your patient leaves your office with a written prescription for drug A, B or C. Did you prescribe more of the generic or the name brand drug this week than you did last week? They know.

The ominous “they” refers to pharmaceutical companies that purchase data about an individual provider’s prescription practices from data-mining companies, such as IMS Health Inc. and Verispan. These data mining companies purchase and aggregate data from pharmacies and benefits managers to track precisely the drugs individual physicians prescribe, and in what amounts.

The data miners sell this data to pharmaceutical companies, which use it to fine-tune their marketing efforts — a process called “detailing.” The drug reps sitting in your lobby with samples, pens, coffee, note pads, etc., may be there today because they know last week you wrote fewer prescriptions for their drugs than you did the week before. Doctors who think this runs afoul of that oath they took (“Whatever I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as believing that all such should be kept secret”) are not alone.

Last year, New Hampshire became the first state to enact legislation to try and curtail the practice of data mining. The Prescription Information Law sought to prevent the commercial sale of prescription data containing patient- and prescriber-identifiable data. The zone of privacy created by the law was short-lived.

Two data-mining companies brought suit in U.S. District Court challenging the constitutionality of the law. In a 54-page opinion, Judge Paul Barbadoro ruled the law violated the Constitution by impermissibly restricting commercial speech.

He determined the transmission of data concerning the prescription practices of New Hampshire’s health providers was a form of speech entitled to First Amendment protections. Since the law restricted a data miner’s ability to communicate with pharmaceutical companies, and the pharmaceutical companies’ rights to receive the information, the law was found to be an impermissible restriction on speech.

Any law restricting protected commercial speech is subject to “intermediate scrutiny” and will be upheld only if it supports a substantial government interest; directly advances the government interest asserted; and is not more extensive than is necessary to serve that asserted government interest.

The court rejected the state’s arguments on each of these factors. It found the state did not have a substantial interest in protecting prescriber privacy or in helping health-care providers shield data about their prescription practices from the data miners or their pharmaceutical company clients.

It also rejected the state’s argument that the data being transmitted undermined public health or increased health-care costs. The court also concluded the state’s interests could be served by more narrowly tailored legislation that was less restrictive of commercial speech.

The state has promised an appeal to the 1st Circuit Court of Appeals; any outcome there is likely to be reviewed by the Supreme Court.

AMA response

So while the wheels of justice turn slowly, what can physicians do to protect their prescriber data from being bought and sold?

The American Medical Association has developed an online program, the Prescribing Data Restriction Program (PDRP), which gives participating health-care providers the power to limit access to their prescribing information.

Under the PRDP, pharmaceutical companies may still acquire prescriber-identifiable data for doctors who elect to participate, but they are prohibited from sharing the information with their sales representatives, who will specifically be precluded from obtaining “restricted data” about prescribers who elect to participate in the PDRP.

PDRP registration can be done through the AMA’s Web site. As of last year, 7,476 of 800,000 physicians identified in the AMA’s Physician Master File had signed up. Some physicians have voiced skepticism about the efficacy of the program and complain that they must renew their election every three years. There also have been complaints that it lacks teeth and puts the onus on physicians to report violations to the AMA.

While it may not be perfect, but in light of the media scrutiny currently being focused on the relationship between doctors and the pharmaceutical industry, some patients may be comforted to know that their doctors have taken the steps they can to shield at least some information from the pharmaceutical industry.

Jonathan Lax, an officer of Nelson, Kinder, Mosseau & Saturley, with offices in Manchester, N.H., Boston and Portland, Maine, defends doctors, nurses and hospitals in malpractice suits and represents medical professionals in administrative proceedings. He can be reached at jlax@nkms.com.