The backers of the bill say it would help consumers by reminding them to take medications and refill prescriptions. Opponents see problems with privacy. And who profits?
When you take a prescription drug, that’s between you, your doctor and your pharmacist. No one else has a right to know.
Perhaps not for much longer.
Under legislation that quietly passed in the state Senate on May 29 and is making its way through the Assembly, drug stores would be free to share patients’ prescription records with companies that specialize in bulk mailings.
Money would change hands along with people’s personal data, but, as you’ll see, it’s not exactly clear who’s paying whom.
The ostensible rationale for the data sharing is that it would help "educate" consumers by providing letters reminding people to take their medication or refill a prescription.
The reality, critics say, is that this is an effort by pharmaceutical companies to ensure that patients stick with expensive name-brand drugs and not stray toward cheaper generic alternatives.
They say it also could lead to privacy violations.
"Your private medical information is being transferred from one database to another," said Jerry Flanagan of Santa Monica-based Consumer Watchdog. "Once that genie’s out of the bottle, it’s very hard to get it back in."
The bill, SB 1096, was written by Sen. Ron Calderon (D-Montebello).
"It’s a very good bill," he told me. "It will save lives and save money. My whole thing is to increase the quality and availability of healthcare."
Calderon said his bill has been misunderstood by the public, and particularly by journalists who failed to grasp its finer points. Contrary to some reports, he said, it wouldn’t allow drug companies to send you pitches for their medicines in an attempt to get patients to switch from one brand to another.
That’s right. The bill clearly states that mailings can only involve "the prescribed course of medical treatment." In other words, the maker of antidepressant Zoloft wouldn’t be able to access your records and try to convince you to switch from Prozac.
On the other hand, SB 1096 is surprisingly murky when it comes to who is supposed to benefit from the legislation. The bill lists its "source" as Adheris Inc., which describes itself as "the leader in prescription-drug patient behavior modification."
Adheris used to be known as Elensys Care Services Inc. The company changed its name after it came to light in 1998 that CVS and other pharmacies were sending people’s personal medical info to Elensys without their permission. A related lawsuit is pending.
As Adheris, the company remains in the business of reminding people to take their meds. But critics like Consumer Watchdog’s Flanagan say Adheris’ emphasis is on promoting name-brand drugs and keeping patients loyal to specific brands.
Adheris says it sends mailings in all states but California. The company and its ilk have been prevented from doing business here because of the state’s medical privacy laws, which are tougher than federal regulations.
Calderon described Adheris as little more than an outsourcing firm that pharmacies can use to handle communications with patients. The way it works, he said, is that a pharmacy pays a fee to Adheris to handle the mailings.
Similarly, Adheris’ chief exec, Dan Rubin, said by e-mail that the company "does not pay pharmacies for access to their prescription data."
He and Calderon may be technically correct — drug stores may indeed be making payments to Adheris. But it looks like Adheris in some cases is handing the money right back, or the money is in fact originating with drug makers.
"The pharmaceutical companies sponsor these programs and [on] some occasions they pay us and we reimburse the chains for their expenses," Adheris’ chairman, Mike Evanisko, testified before the Senate Health Committee in March.
"And in some cases," he said, "the pharmaceutical companies who sponsor these pay the chains, and the chains pay us for providing the service."
Evanisko said Adheris also might provide money to drug stores to defray costs for "printing, postage, maintaining the databases, transferring information to us," which would appear to cover just about everything the pharmacies are supposed to be paying Adheris to do.
Calderon’s bill appears to anticipate that mailings may be paid for by drug makers or companies like Adheris and not just by drug stores. It says disclosure is required "if the written communication is paid for, in whole or in part, by a manufacturer, distributor or provider of a healthcare product or service."
I pointed this out to Calderon.
"I’m not familiar with that," he replied. "I’ve never seen that part of the bill."
This is his bill, remember.
SB 1096 would allow people to opt out at the pharmacy counter from receiving any mailings from Adheris. But it’s unclear whether you could opt out from the company accessing your records.
The bill says the opt-out covers "receiving a written communication from a pharmacy." It’s silent on whether your private data would still be sent to Adheris’ computers.
Calderon said it was his intent to include the data transmission in the opt-out. He said the wording of the legislation may have to be tweaked to make this clear.
I asked why people should have to opt out at all. If the reminder mailings are so useful, why not just ask people to opt in? That way you’d be giving your permission up front, rather than requiring people to cancel a service they may not have been aware of in the first place.
"The problem is that opt-in doesn’t work," Calderon said, explaining that other states have found that if you ask people to sign up for reminder programs, they usually decline.
Tells the whole story, some might say.
A spokeswoman for Pharmaceutical Research and Manufacturers of America, the leading drug-industry group, was unable to comment on the relationship between drug makers and companies like Adheris. She said such ties are made on a company-by-company basis.
I asked Calderon how his legislation came about. He said he believed Adheris brought the idea to major drug store chains, and the drug stores worked with Calderon’s office in drafting the bill.
He said his sole reason for introducing the legislation was to improve the health of Californians by getting more people with chronic conditions to take their medication.
Since 2002, Calderon has received at least $89,000 in contributions from drug companies and pharmacy chains, according to public records.
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