Constitutional Law

1st Circuit: Maine can restrict prescription info

By By The Associated Press

PORTLAND, Maine ? A federal appeals panel has upheld the constitutionality of a Maine law restricting medical data companies' access to doctors' prescription information.

The 1st U.S. Circuit Court of Appeals in Boston ruled this week on Maine's law after previously upholding a similar New Hampshire law making doctors' prescription-writing habits confidential. Last summer, the U.S. Supreme Court refused to hear a challenge to New Hampshire's law, allowing that statute to stand.

Three companies that collect, analyze and sell medical data for use in pharmaceutical companies' marketing programs challenged the law.

"The plaintiffs suggested that this law chills their commercial free speech. All our law does is protect the privacy of doctors who prescribe medications," Maine Attorney General Janet Mills said yesterday.

In IMS Health Inc. v. Mills, the three-judge panel found that the companies? free-speech challenges failed because ?the statute regulates conduct, not speech, and even if it regulates commercial speech, that regulation satisfies constitutional standards.?

Tom Julin, who represented the companies, said they wouldn't decide whether to file an appeal until after the 2nd Circuit rules on a similar law in Vermont. That decision is expected in a matter of days, he said.

The Maine law was aimed at reducing health care costs by taking away the data drug companies use for hard-sell tactics on doctors. It allows doctors to choose to withhold their individual prescription-writing information from the data-mining companies, which otherwise would have access to it.

So far, 265 doctors have chosen to prevent the release their information, but the law has been on hold because of the legal challenge.

The prescription data is considered invaluable by drug company salespeople, who use it to identify doctors' drug preferences, whether they favor brand-name medicines over generics, and whether doctors are willing to prescribe new drugs over older medications.

The companies that sued were IMS Health of Norwalk, Conn.; Verispan LLC, which was later acquired by Pennsylvania-based SDI; and Source Healthcare Analytic Inc., a subsidiary of Philadelphia-based Wolters Kluwer Health Inc.

They don't apologize for making a profit, and stress that the information they gather also is used by researchers, law enforcement and government agencies.

"Everyone wants access to more information, not less. Increased transparency and access to information from many sources will produce better health outcomes, improve patient safety and lower healthcare costs," the three companies said in a statement issued yesterday.

Full post as published by First Amendment Center on August 05, 2010 (boomark / email).