§ 4631. Confidentiality of prescription information

(a) It is the intent of the General Assembly to advance the State‘s interest in protecting the public health of Vermonters, protecting the privacy of prescribers and prescribing information, and to ensure costs are contained in the private health care sector, as well as for State purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.

(b) As used in this section:

(1) “Electronic transmission intermediary” means an entity that provides the infrastructure that connects the computer systems or other electronic devices used by health care professionals, prescribers, pharmacies, health care facilities and pharmacy benefit managers, health insurers, third-party administrators, and agents and contractors of those persons in order to facilitate the secure transmission of an individual’s prescription drug order, refill, authorization request, claim, payment, or other prescription drug information.

(2) “Health care facility” shall have the same meaning as in section 9402 of this title.

(3) “Health care professional” shall have the same meaning as health care provider in section 9402 of this title.

(4) “Health insurer” shall have the same meaning as in section 9410 of this title.

(5) “Marketing” shall include advertising, promotion, or any activity that is intended to be used or is used to influence sales or the market share of a prescription drug, influence or evaluate the prescribing behavior of an individual health care professional to promote a prescription drug, market prescription drugs to patients, or evaluate the effectiveness of a professional pharmaceutical detailing sales force.

(6) “Pharmacy” means any individual or entity licensed or registered under 26 Vt. Stat. Ann. chapter 36.

(7) “Prescriber” means an individual allowed by law to prescribe and administer prescription drugs in the course of professional practice.

(8) “Promotion” or “promote” means any activity or product the intention of which is to advertise or publicize a prescription drug, including a brochure, media advertisement or announcement, poster, free sample, detailing visit, or personal appearance.

(9) “Regulated records” means information or documentation from a prescription dispensed in Vermont and written by a prescriber doing business in Vermont.

(c)(1) The Department of Health and the Office of Professional Regulation, in consultation with the appropriate licensing boards, shall establish a prescriber data-sharing program to allow a prescriber to give consent for his or her identifying information to be used for the purposes described under subsection (d) of this section. The Department and Office shall solicit the prescriber’s consent on licensing applications or renewal forms and shall provide a prescriber a method for revoking his or her consent. The Department and Office may establish rules for this program.

(2) The Department or Office shall make available the list of prescribers who have consented to sharing their information. Entities who wish to use the information as provided for in this section shall review the list at minimum every six months.

(d) A health insurer, a self-insured employer, an electronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriber-identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents as provided in subsection (c) of this section. Pharmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents as provided in subsection (c) of this section.

(e) The prohibitions set forth in subsection (d) of this section shall not apply to the following:

(1) the sale, license, exchange for value, or use of regulated records for the limited purposes of pharmacy reimbursement; prescription drug formulary compliance; patient care management; utilization review by a health care professional, the patient’s health insurer, or the agent of either; or health care research;

(2) the dispensing of prescription medications to a patient or to the patient’s authorized representative;

(3) the transmission of prescription information between an authorized prescriber and a licensed pharmacy, between licensed pharmacies, or that may occur in the event a pharmacy’s ownership is changed or transferred;

(4) care management educational communications provided to a patient about the patient’s health condition, adherence to a prescribed course of therapy, and other information relating to the drug being dispensed, treatment options, recall or patient safety notices, or clinical trials;

(5) the collection, use, or disclosure of prescription information or other regulatory activity as authorized by chapter 84, chapter 84A, or section 9410 of this title, or as otherwise provided by law;

(6) the collection and transmission of prescription information to a Vermont or federal law enforcement officer engaged in his or her official duties as otherwise provided by law; and

(7) the sale, license, exchange for value, or use of patient and prescriber data for marketing or promoting if the data do not identify a prescriber, and there is no reasonable basis to believe that the data provided could be used to identify a prescriber.

(f) In addition to any other remedy provided by law, the Attorney General may file an action in Superior Court for a violation of this section or of any rules adopted under this section by the Attorney General. The Attorney General shall have the same authority to investigate and to obtain remedies as if the action were brought under the Vermont Consumer Protection Act, 9 Vt. Stat. Ann. chapter 63. Each violation of this section or of any rules adopted under this section by the Attorney General constitutes a separate civil violation for which the Attorney General may obtain relief. (Added 2007, No. 80, § 17; amended 2007, No. 89 (Adj. Sess.), § 3, eff. March 5, 2008; 2009, No. 59, § 1; 2011, No. 109 (Adj. Sess.), § 3, eff. May 8, 2012; 2011, No. 136 (Adj. Sess.), § 1b, eff. May 18, 2012.)