Signing the Green Mountain Care Act was the easy part.(3) The tough stuff has been left to a 5 member governor appointed state board who will define the benefits and predict the cost. Then the governor has to figure out how to pay for it. Add to the list as well negotiating around federal law requirements associated with the Patient Protection and Affordable Care Act including the need to create an health insurance exchange to help residents shop for coverage by 2014. Finally, there’s the obvious opposition including a portion of local businesses concerned about a new payroll tax and major corporate health suppliers concerned that market consolidation will create downward pressure on pricing.(2)

With that full plate, some are predicting an earliest start date in 2017. But if you want something controversial to keep you engaged health-wise in Vermont in the meantime, how about the Supreme Court case, Petitioners v. IMS Health Inc. led by State Attorney General William H. Sorrell.(4) It challenges whether detailed information about prescriptions written by doctors, with the doctor identified, can be bought and sold.

This practice may be legal in almost every state in the union, but it’s not without controversy. Here’s the deal. Pharmaceutical companies are in the risky and expensive business of bringing new products to market. But, if they can’t convince doctors to prescribe the new drugs, they’re in hot water financially. So they hire and train a sales force to visit those doctors who are most likely to prescribe the product with greater frequency. But how do they know which ones to visit?

Here’s how. Retail pharmacies save prescription data (prescriber, drug, dose, etc.) and sell the data to data mining companies like IMS Health. Data miners then merge this data with other databases purchased from a variety of vendors including the AMA’s Physician Masterfile database, begun in 1906, and sold to vendors for the last half century.(5)

By merging the databases, companies like IMS Health are able to sell a refined product (who, what, where and how you prescribe) primarily to pharmaceutical and medical device companies, who use the data to target their sales and marketing efforts. Everyone profits along the way to the doctors office. Physicians have been able to specifically opt-out of data release through the AMA’s Physician Data Restriction Program  since 2007, but only 3% have done so. (6,7)

As described in an editorial in the New England Journal of Medicine this week, “After receiving complaints from the Vermont Medical Society about data mining, the Vermont state legislature passed the Prescription Confidentiality Law, which required that data-mining companies obtain explicit permission from a physician before selling his or her prescriber-identifiable information to pharmaceutical companies for the commercial purpose of drug promotion (an “opt-in” requirement). … The constitutionality of the Prescription Confidentiality Law was challenged in a suit brought by leading data-mining companies, including IMS Health, and by PhRMA. Although the U.S. District Court ruled in favor of Vermont, this decision was overturned by the U.S. Court of Appeals for the Second Circuit and the law was struck down. Previously, similar data-mining laws in New Hampshire and Maine had been upheld by the U.S. Court of Appeals for the First Circuit. Owing in part to these conflicting rulings on similar laws, the Supreme Court agreed to hear the Vermont case.”(7)
Editors from the New England Journal of Medicine contend that everyone in the value chain benefits here – except the doctor and the patient. Their question:  “Why should this information be sold to data-mining and drug companies as a commodity, when it offers no benefit to patients and their physicians? This undesirable practice is nothing more than commercial conduct — not speech — and it is not in the best interest of the health of the American people.

For Health Commentary, I’m Mike Magee

3. Vermont Legislature. H.202. Green Mountain Care Act.http://www.leg.state.vt.us/docs/2012/bills/Passed/H-202.pdf

4. Supreme Court: 10-779: Sorrell vs. IMS, Inc.http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-779_petitioneramcu4medassns.authcheckdam.pdf

5. AMA Physician Masterfile Database. http://www.ama-assn.org/ama/pub/about-ama/physician-data-resources/physician-masterfile.page