Supreme Court Strikes Down Vermont Prescriber Data-Restriction
by William S. Bernstein, Susan R. Ingargiola, and Anne O’Hagen Karl
BNA Health IT Law & IndustryJuly 18, 2011
On June 23, the U.S. Supreme Court struck down Vermont’s law restricting the sale, disclosure, and use of pharmacy records that reveal the prescribing patterns of individual physicians. Vermont and other states with similar laws argue that these laws both protect physician privacy and curtail growth in health care spending. But others, including pharmaceutical manufacturers, argue that such laws place undue restrictions on freedom of speech.
Vermont pharmacies collect and store information about the prescriber and prescription when filling prescriptions. Pharmacies retain information including the prescriber’s name and address, as well as the type and quantity of drug prescribed. Many pharmacies then sell the prescriber information to ‘‘data miner’’ firms that analyze the prescriber information and produce reports on prescriber behavior. The data miners then lease these reports to pharmaceutical manufacturers. Pharmaceutical marketers called ‘‘detailers’’ use these reports to tailor their marketing efforts.
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