So much recent legislative attention has been focused on sunshine biils, requiring disclosure of physician payments from the drug companies, that other issues may have been forgotten. An article from Seattle--
--shows us that in Washington State, legislators are attempting to close a loophole in the HIPAA privacy law, that has been exploited by both drug companies and pharmacy benefits managers.
The loophole arose because the Bush administration added language stating that HIPAA could be extended to cover communications among physicians and pharmacists and their "business associates" so long as the communication had something to do with "patient care."
The result is that a patient whose prescription is about to run out may receive a letter saying one of two things. If it's the drug company footing the bill, the letter reminds the patient that they should get a refill, and then launches into a marketing pitch for a newer, more expensive medication for the same problem.
If it's the PBM, the pitch goes in the other direction--after the obligatory reminder to get the refill (that makes it "patient care"), the pitch becomes switching to a cheaper generic drug.
The scam is that most patients assume that their prescription information is private, and so they figure that the letter must have come either from their physician's office or from their pharmacy. They may not realize that the letter lacks this authority and did not come from anyone personally familiar with their medical or medication history.
HIPAA fortunately allows individual states to pass more stringent privacy requirements, so the bill in Washington is designed to close the loophole for that state's residents.
My own view of this is that I am completely unsympathetic to marketing to patients to get them to buy more expensive drugs. I must admit to having a lot more sympathy with an effort to get more docs to prescribe generic drugs when they are medically equivalent. But this ought not be done by ads directed to the patient. Instead, the doc can get reminder letters from the insurer urging a generic switch; and the pharmacy plan can give the patients a price break on generics that will incentivize them to ask their docs whether a generic would work.