A trio of data-mining firms filed lawsuits in Maine and Vermont last week to block legislation that would give physicians the option to keep their prescribing information private.
IMS Health, Verispan, and Wolters Kluwer Health said that the laws are unconstitutional and violate their First Amendment right to legally obtained information.
In April, a similar law was overturned in New Hampshire by a federal judge who deemed the law unconstitutional. The overriding conclusion was that banning data did not appear to meet the state's interest to contain costs and deal with physician and patient privacy.
Where New Hampshire's sought an outright ban on prescription data collection for resale purposes, the new laws include an "opt-in" program, allowing physicians the option to make their identifying information public.
This is a major point of contention for data collection agencies that buy prescribing information from pharmacists, PBMs, and insurers, and then provide or sell digested versions of the data to pharmaceutical companies, as well as to government and managed care sources.
"I believe every state is dealing with the growing cost of healthcare and drugs in particular and virtually one is looking at ways to manage healthcare costs," said Randy Frankel, vice president of external affairs at IMS Health. Opponents of the bill claim that the legislation is misguided and that it will likely lead to unintended consequences without delivering of the benefit they hope to achieve.
Frankel feels that by banning data collection, the states are eliminating a very important component of healthcare information that is used to monitor data safety, quality, and costs.
"These laws essentially fly in the face of a national trend toward greater transparency and a free flow of information to all stakeholders, including patients and providers," Frankel says. "Unless we are able to collect this information, a ban such as this would create holes in the healthcare system that would undermine all the quality and the safety components."
The laws are scheduled to go into effect January 2008 and the data-mining companies are trying to stall the legislations through injunctions.
IMS Health and Verispan also made it clear that all data collected is patient de-identified—all patient information is eradicated from the data from the start. Physician data is collected from pharmacies, mass merchandisers, and wherever prescriptions are sold.
Jody Fisher, vice president of product management at Verispan, is optimistic that his company will succeed against Maine and Vermont. He said, "At a certain point, it will become increasingly costly to keep waging a battle against sharing prescription data, and I think these states would be better served directly dealing with the problem they are having and not going after some sort of intermediate solution."