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Saturday, October 02, 2004

The Albertson's healthcare privacy issues: how much do you really care?

What Does the HIPAA “Marketing” Provisions Mean to You?

Still there after reading the HIPAA article? Few can make it this far, so congratulate yourself. This is tough stuff, and generally only of interest those in the healthcare industry. Few consumers themselves have been very interested in this law.

While many consumer and privacy advocacy groups have been vocal, the consumer pick-up has been minimal. How do you feel about your pharmacist or physician being paid to have others send your marketing messages or drug promotions? Does it make any difference if they can do it under your pharmacist’s or physician’s name? Are you worried that your pharmacy might be sending your alternative drug therapy recommendations without informing your physician? Or does the convenience of learning about alternative therapies or being reminded to renew your prescriptions outweigh your concerns?

Do you trust a contractor who has entered into an agreement not to divulge your personal health information not to betray that trust? Do you trust them more than if the drug manufacturer itself had possession of that information and agreed not to share it further?

Did you even know about this practice? I didn’t. When I first learned about The Privacy Rights Clearinghouse’s litigation, I was on the road without Internet access. My feelings about, as both a consumer and a privacy lawyer evoloved over a short period of time.

I was appalled that a drugstore chain would market to their customers allowing the drug manufacturers to deliver their messages couched as the pharmacists themselves. I was certain that HIPAA covered this and started making some phone calls to healthcare privacy experts I knew. That’s when I found out about the changes in the HIPAA rules since I had last researched this issue.

Then I accessed the complaint filed, which made it appear that the patient/customer's personla healthcare information had been shared with the drug manufacturers. That made me angry!The more I thought about this, the more shocked I became. But following a careful review of what had actually happened, it came down to what really mattered to me and why.

1. I wasn't aware of the practive of pharmacies and physicians being paid to market to customers/patients to recommend alternative therapies. I knew that they had substantial sample programs and that durg manufacturers; deatil salespeople were notorious for providing theater or sporting events tickets to doctors and pharmacists. I knew that there were special vacation packages made available to pharmacies for sales of certain products. I had always brushed these off as being part of doing business, and in the case of physicians at least, not a big enough problem to worry about. I suspected that the physician's mal[practice and legal ethical concerns would outweight the small gratuities involved. And pharmacies, especially over the last 20 years when big chains gobbled up small neighborhood pharmacies, were more a business than a healtcare facitiy where the pharmacists had a relationship with their customers.

But learning that they were paid to allow a manufacturer to reach us through a third-party solicitor bothered me. How much were they paid? enough to overcome their ethical issues? I hope not.

2. The complaint made it appear that personal healthcare information had been shared with the drug manufacturers. I am sure that this was not intentional, but my initial reaction was based o that premise. I assume that the drug manufacturers never were given the personal contact information or helathcare information from the pharmacy in this case, or a HIPAA violation would have been alleged, which it was not.

3. I liked to know that my prescriptions need to be refilled, or that I need a new one, or that new or alterative therapies may work for me. That's a convenience that outweighs my concern about being marketed to by my healthcare professionals. I don't even care if they do this, allowing the manufacturer's message to come masked as my pharmacist. I don't give any more credance to my pharmacists' recommendations than to any other marketer (sadly).

4. But if anything comes to me, addressed as coming from my physician, I want to know that it is right for me, not just profitable for my doctor. This I consider a healthcare fiduciary duty issue, not a privacy one. It touches on malpractice and is, as I understand it, already heavily regulated by the state licensing boards.

5. The practice complained of is permitted nationally. The California state law in January just amended their state HIPAA to prevent marketing. So, a new law, a state law and not as emotionally charged as I had first thought. At least not among those I polled.

bottomline, we need to get our heads around these issues. we need to educate ourselves and each other. It's like ez pass. I hated the thought of being tracked when they first came out. But the convenince of it outweighed my concerns. I knew enough about the privacy laws to know what other protections existed and trust the law (sometimes).

And respecting customers' privacy is good for business. That, rather than regulations, will motivate most businesses. But they need to know what they are doing before they act...and think through the ramifications of those actions. Albertsons has some damage control, some serious damage control issues. But I am not sure that they truly violated their customer's trust. The law may have been broken, but we should use this as an opportunity to educate the public, not frighten them.

just my 2 cents.

What about patients with AIDS? Or HIV? Or cancer? Or [fill in the blank]? How often do we even think about how much information about us it out there? While most of us trust that our physicians and pharmacists won’t run a full-page ad disclosing our health conditions, what about our neighbor’s daughter who works there after school? Or the person from church who is standing next to us while the pharmacist explains the drug side-effects?
Do we really care if our information is shared with someone in order to sell us more medications or different ones? Or do we care that it is shared – period? Or is it that we worry that people know more about us than we think they do? Or that our pharmacist may be trying to sell us things that aren’t right for us? Or that our physicians are recommending drugs or treatments based on financial inducements? Or are we most concerned about not knowing who knows what, for how long they have known it, how they will use it, whether we have any choices in this and how well they will protect it?
I would like to get a reminder of a prescription refill, or suggestions about new medications or treatment options. But I want to know that my healthcare personal information is secure and private. I also want to know that any communications I receive from my physician or healthcare provider are based on my best interests, not how much they are paid to market products and services to me.
So, is this a privacy issue? Or is this a fiduciary and professional level of care issue? You decide. But the more we know about how things work the more we can make that decision for ourselves. It makes the difference between throwing these communications in the trash or acting on them. You decide.


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