S T A T E O F N E W Y O R K
________________________________________________________________________
6929
2009-2010 Regular Sessions
I N A S S E M B L Y
March 17, 2009
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Introduced by M. of A. BRODSKY -- read once and referred to the Commit-
tee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to the use of
prescription information containing prescriber-identifiable data
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general business law is amended by adding a new article
9-D to read as follows:
ARTICLE 9-D
USE OF PRESCRIPTION INFORMATION
CONTAINING PRESCRIBER-IDENTIFIABLE DATA
SECTION 149-A. PRESCRIPTION INFORMATION TO BE KEPT CONFIDENTIAL.
S 149-A. PRESCRIPTION INFORMATION TO BE KEPT CONFIDENTIAL. 1. RECORDS
RELATIVE TO PRESCRIPTION INFORMATION, INCLUDING BUT NOT LIMITED TO PHAR-
MACEUTICAL DRUGS, CONTAINING PHYSICIAN PRESCRIBER-IDENTIFIABLE DATA
SHALL NOT BE LICENSED, TRANSFERRED, USED, OR SOLD BY ANY PHARMACY, BENE-
FITS MANAGER, INSURANCE COMPANY, ELECTRONIC TRANSMISSION INTERMEDIARY,
RETAIL, MAIL ORDER, OR INTERNET PHARMACY OR OTHER SIMILAR ENTITY, FOR
ANY COMMERCIAL PURPOSE, EXCEPT WITH THE WRITTEN CONSENT OF THE PHYSICIAN
PRESCRIBER THE AUTHORIZATION FOR WHICH SHALL BE VALID FOR NO MORE THAN
ONE YEAR AND MUST BE RENEWED THEREAFTER IN WRITING BY THE PHYSICIAN
PRESCRIBER FOR AN ADDITIONAL ONE YEAR PERIOD TO REMAIN IN EFFECT.
2. SUCH WRITTEN PHYSICIAN PRESCRIBER CONSENT, HOWEVER, SHALL NOT BE
REQUIRED FOR THE LIMITED PURPOSES OF PHARMACY REIMBURSEMENT; FORMULARY
COMPLIANCE; CARE MANAGEMENT; UTILIZATION REVIEW BY A HEALTH CARE PROVID-
ER, THE PATIENT'S INSURANCE PROVIDER OR THE AGENT OF EITHER; HEALTH CARE
RESEARCH; OR AS OTHERWISE PROVIDED BY LAW. COMMERCIAL PURPOSE INCLUDES,
BUT IS NOT LIMITED TO, ADVERTISING, MARKETING, PROMOTION, OR ANY ACTIV-
ITY THAT COULD BE USED TO INFLUENCE SALES OR MARKET SHARE OF A PHARMA-
CEUTICAL PRODUCT, INFLUENCE OR EVALUATE THE PRESCRIBING BEHAVIOR OF AN
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09843-01-9
A. 6929 2
INDIVIDUAL HEALTH CARE PROFESSIONAL, OR EVALUATE THE EFFECTIVENESS OF A
PROFESSIONAL PHARMACEUTICAL DETAILING SALES FORCE.
3. NOTHING IN THIS SECTION SHALL PROHIBIT THE DISPENSING OF
PRESCRIPTION MEDICATIONS TO A PATIENT OR TO THE PATIENT'S AUTHORIZED
REPRESENTATIVE; THE TRANSMISSION OF PRESCRIPTION INFORMATION BETWEEN AN
AUTHORIZED PHYSICIAN PRESCRIBER AND A LICENSED PHARMACY; THE TRANSFER OF
PRESCRIPTION INFORMATION BETWEEN LICENSED PHARMACIES; THE TRANSFER OF
PRESCRIPTION RECORDS THAT MAY OCCUR IN THE EVENT A PHARMACY OWNERSHIP IS
CHANGED OR TRANSFERRED; CARE MANAGEMENT EDUCATIONAL COMMUNICATIONS
PROVIDED TO A PATIENT ABOUT THE PATIENT'S HEALTH CONDITION, ADHERENCE TO
A PRESCRIBED COURSE OF THERAPY OR OTHER INFORMATION ABOUT THE DRUG BEING
DISPENSED, TREATMENT OPTIONS, OR CLINICAL TRIALS. NOTHING IN THIS
SECTION SHALL PROHIBIT THE COLLECTION, USE, TRANSFER, OR SALE OF PATIENT
AND PHYSICIAN PRESCRIBER-IDENTIFIABLE DATA BY ZIP CODE, GEOGRAPHIC
REGION, OR MEDICAL SPECIALTY FOR COMMERCIAL PURPOSES.
4. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
MAY BE MADE BY THE PHYSICIAN PRESCRIBER ON HIS OR HER OWN BEHALF OR BY
THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK,
AND UPON NOTICE TO THE RESPONDENT OF NOT LESS THAN FIVE DAYS, TO ENJOIN
AND RESTRAIN THE CONTINUANCE OF SUCH VIOLATIONS; AND IF IT SHALL APPEAR
TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE RESPONDENT HAS, IN
FACT, VIOLATED THIS SECTION, AN INJUNCTION MAY BE ISSUED BY SUCH COURT
OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT
REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED
THEREBY. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS
SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT LESS
THAN FIVE HUNDRED DOLLARS FOR EACH VIOLATION. IN CONNECTION WITH ANY
SUCH PROPOSED APPLICATION, THE PHYSICIAN PRESCRIBER AND/OR THE ATTORNEY
GENERAL, AS THE CASE MAY BE, IS AUTHORIZED TO TAKE PROOF AND MAKE A
DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE
WITH THE CIVIL PRACTICE LAW AND RULES. THE SALE OF EACH UNAUTHORIZED
PRESCRIPTION WITH PHYSICIAN PRESCRIBER IDENTIFIABLE DATA SHALL CONSTI-
TUTE A SEPARATE AND DISTINCT VIOLATION.
5. NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT THE RIGHTS OR REME-
DIES WHICH ARE OTHERWISE AVAILABLE TO A PERSON UNDER ANY OTHER LAW.
S 2. This act shall take effect immediately.