Tag: prescription drugs

Sorrell vs. IMS Health: Not a Privacy Case

The Supreme Court’s decision in Sorrell vs. IMS Health is being touted in many quarters as a privacy case, and a concerning one at that. Example: Senator Patrick Leahy (D-VT) released a statement saying “the Supreme Court has overturned a sensible Vermont law that sought to protect the privacy of the doctor-patient relationship.” That’s a stretch.

The Vermont law at issue restricted the sale, disclosure, and use of pharmacy records that revealed the prescribing practices of doctors if that information was to be used in marketing by pharmaceutical manufacturers. Under the law, prescription drug salespeople—“detailers” in industry parlance—could not access information about doctors’ prescribing to use in focusing their efforts. As the Court noted, the statute barred few other uses of this information.

It is a stretch to suggest that this is a privacy law, given the sharply limited scope of its “protections.” Rather, the law was intended to advance the state’s preferences in the area of drug prescribing, which skew toward generic drugs rather than name brands. The Court quoted the Vermont legislature itself, finding that the purpose of the law was to thwart “detailers, in particular those who promote brand-name drugs, convey[ing] messages that ‘are often in conflict with the goals of the state.’” Accordingly, the Court addressed the law as a content- and viewpoint-oriented regulation of speech which could not survive First Amendment scrutiny (something Cato and the Pacific Legal Foundation argued for in their joint brief.)

What about patients’ sensitive records? Again, the case was about data reflecting doctors’ prescribing practices, which could include as little as how many times per year they prescribe given drugs. (They probably include more detail than that.) The risk to patients is based on the idea that patients’ prescriptions might be gleaned through sufficient data-mining of doctors prescribing records (no doubt with other records appended). That’s a genuine problem, if largely theoretical given the availability and use of data today. Vermont is certainly free to address that problem head on in a law meant to actually protect patients’ privacy—against the state itself, for example. Better still, Vermonters and people across the country could rely on the better sources of rules in this new and challenging area: market pressure (to the extent possible in the health care area) and the (non-prescriptive, more adaptive) common law.

Whatever the way forward, Sorrell vs. IMS Health is not the privacy case some are making it out to be, it’s not the outrage some are making it out to be, and it’s not the last word on data use in our society.

More on the Siobhan Reynolds Case

Building on Ilya Shapiro’s post on the sealed grand jury proceedings against Siobhan Reynolds, founder of the Pain Relief Network, and the sealed Reason Foundation/Institute for Justice amicus brief, here is some more background on the Wichita witch hunt:

The U.S. Attorney’s Office in Wichita, Kansas, indicted physician Stephen Schneider and his wife, Linda, a nurse, for illegal drug trafficking in December 2007. Reynolds found an eerie parallel between Schneider’s case and the prosecution that denied her husband pain medication, so she took action. Her public relations campaign on behalf of Dr. Schneider so annoyed Assistant U.S. Attorney Tanya Treadway that Treadway sought a gag order to bar Reynolds’s advocacy. The presiding judge denied the gag order.

When the judge denied Treadway’s gag order, Treadway instead subpoenaed Reynolds for records related to Reynolds’s PR campaign against the prosecution of the Scheiders. Ms. Reynolds resisted the subpoena and tried to challenge it in court, but the $200 daily fine intended to ensure compliance with the subpoena has left Reynolds pretty much bankrupt.

This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Façade: How the Grand Jury Was Captured by Government.

Cato Adjunct Scholar Harvey Silverglate examined the case of Dr. William Hurwitz in his book, Three Felonies a Day: How the Feds Target the Innocent. The DEA turned a few of Hurwitz’s patients into informants and prosecuted Hurwitz. When Hurwitz shuttered his practice, two of his patients killed themselves because they could not get prescriptions for necessary painkillers. Siobhan Reynolds’s husband, another of Hurwitz’s patients, could not get essential medication and died of a brain hemorrhage, likely brought on by the blood pressure build-up from years of untreated pain.

Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker “thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, ‘Get off the phone! Now!’” Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).

The ‘Public Option’ Is Back

That didn’t take long at all.  Left-wing congresscritters have (re-)introduced legislation to create a “public option” in ObamaCare’s health insurance exchanges.

The Congressional Budget Office scores the bill as reducing federal deficits by $53 billion by 2019.  How?  Paying doctors and hospitals less!  Put that on a bumper sticker! The public option would use Medicare’s price and exchange controls to pay doctors and other health care providers 5 percent more than Medicare does.  Except for prescription drugs: the public option would, ahem, “negotiate” those prices, meaning it would use a separate price-control scheme and pay less than Medicare does.  (That means PhRMA probably won’t be bankrolling the public-option campaign the way it bankrolled the pro-ObamaCare campaign and is bankrolling the re-election bids of its congressional benefactors.)  Providers, such as community hospitals, would take a huge pay cut if some of their privately-insured patients suddenly only paid Medicare plus 5 percent.

When costs explode under ObamaCare the way they are exploding under RomneyCare, expect the public option to be the Left’s go-to solution. In CongressDaily, co-sponsor Rep. Raul Grijalva (D-Ariz.) says:

By reintroducing it, we make sure that people don’t forget this is a viable option…. I think as the health bill is implemented, more and more people are going to come to the realization that cost containment and competition aren’t as robust as they should be, because of the absence of the public option.

Naturally.  Because the first thing that comes to mind when I think cost-containment and competition is government health care programs.

For a refresher on how the Left confuses cost-containment with spending-containment – and on why the public option is a really, really, really bad idea – see my paper, “Fannie Med? Why a ‘Public Option’ Is Hazardous to Your Health.”

Medicare Part D May Set a Record for Crowd-Out

According to a new study by economists Gary V. Engelhardt and Jonathan Gruber, 80 percent of enrollment in Medicare Part D, and 80 percent of the dollars spent by Part D, merely crowd out private prescription drug coverage and spending.

Put differently, Medicare Part D extends prescription drug coverage to one senior for the price of five.