S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1379
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 8, 2021
                                ___________
 
 Introduced  by M. of A. CAHILL -- Multi-Sponsored by -- M. of A. ABINAN-
   TI, COLTON, CYMBROWITZ, ENGLEBRIGHT, GALEF, GLICK, GOTTFRIED, GUNTHER,
   MONTESANO, PAULIN,  PERRY,  L. ROSENTHAL,  WEPRIN  --  read  once  and
   referred to the Committee on Health
 
 AN  ACT  to  amend  the  public  health law, in relation to prescription
   privacy

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Legislative  findings and intent. Prescribing health care
 professionals should  have  a  reasonable  expectation  that  when  they
 prescribe  a  medication  for  a patient, that decision will not be made
 available to an outside third party. However, disclosure  of  individual
 identifying  information  about patients and prescribers enables pharma-
 ceutical companies to track the prescribing practices of  physicians  to
 target them for marketing, including gifts and payments.  This marketing
 can  distort  prescribing  practices  to  increase health care costs and
 undermine patient safety. The National Institutes of  Health  has  found
 that  nearly  one-third of the increase in prescription drug prices over
 the  last  decade  was  attributable  to  marketing-induced  shifts   in
 prescribing  practices.  Published  evidence  shows that prescribers are
 often encouraged by sales representatives to prescribe medications in  a
 manner  that has not been approved by the Federal Food and Drug Adminis-
 tration.
   Neither the state nor any other entity has  the  resources  to  effec-
 tively  counter  targeted  marketing  campaigns  that exceed hundreds of
 millions of dollars.
   The legislature finds that this legislation is  necessary  to  protect
 health care professionals and their patients from the abuses of targeted
 marketing that are made possible by the disclosure of individual identi-
 fying information.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01261-01-1
              

 A. 1379                             2
 
   § 2. Section 270 of the public health law is amended by adding two new
 subdivisions 15 and 16 to read as follows:
   15. "INDIVIDUAL IDENTIFYING INFORMATION" MEANS INFORMATION IDENTIFYING
 OR TENDING TO IDENTIFY A PRESCRIBER OR PATIENT, WHERE THE INFORMATION IS
 DERIVED FROM OR RELATES TO A PRESCRIPTION FOR ANY DRUG OR DEVICE.
   16.  "MARKETING" MEANS, BUT IS NOT LIMITED TO, ADVERTISING, DETAILING,
 MARKETING, PROMOTION, OR ANY ACTIVITY THAT COULD BE  USED  TO  INFLUENCE
 SALES  OR  MARKET  SHARE  OF A DRUG OR DEVICE, INFLUENCE OR EVALUATE THE
 PRESCRIBING PRACTICES OF A PRESCRIBER, OR EVALUATE THE EFFECTIVENESS  OF
 MARKETING PRACTICES OR PERSONNEL.
   § 3. The public health law is amended by adding a new section 276-a to
 read as follows:
   § 276-A. PRESCRIPTION PRIVACY. 1. NO PRESCRIBER, PHARMACIST, PHARMACY,
 PHARMACY BENEFITS MANAGER, HEALTH PLAN, INSURER, THIRD PARTY PAYER, DATA
 TRANSFER  INTERMEDIARY,  DRUG MANUFACTURER OR WHOLESALER OR THEIR AGENTS
 SHALL DISCLOSE, SELL, TRANSFER, EXCHANGE OR USE ANY INDIVIDUAL IDENTIFY-
 ING INFORMATION TO ANY PERSON OR ENTITY FOR THE PURPOSE OF MARKETING ANY
 DRUG OR DEVICE.
   2. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, INDIVIDUAL IDENTI-
 FYING INFORMATION, SUBJECT TO APPLICABLE LAW  MAY  BE  DISCLOSED,  SOLD,
 TRANSFERRED  OR  EXCHANGED  TO:  (A)  THE  PATIENT  TO WHOM THE ORIGINAL
 PRESCRIPTION WAS ISSUED OR A PERSON  TO  WHOM  THE  PRESCRIBED  DRUG  OR
 DEVICE MAY BE DELIVERED;
   (B)  A  PERSON  LEGALLY AUTHORIZED TO ISSUE OR FILL A PRESCRIPTION FOR
 THE PATIENT, A PERSON WHO TREATS THE PATIENT, OR A PERSON  WHO  PROVIDES
 DISEASE MANAGEMENT OR CASE MANAGEMENT TO THE PATIENT;
   (C)  AN  OFFICER,  INSPECTOR  OR INVESTIGATOR FOR A GOVERNMENT HEALTH,
 LICENSING OR LAW  ENFORCEMENT  AGENCY  ACTING  UNDER  APPROPRIATE  LEGAL
 AUTHORITY, WHERE THE REQUEST IS MADE IN WRITING;
   (D) A PERSON AUTHORIZED BY A COURT ORDER TO RECEIVE SUCH INFORMATION;
   (E)  A HEALTH RESEARCHER WHO IS OTHERWISE AUTHORIZED TO HAVE ACCESS TO
 HEALTH RECORDS OF THE PATIENT THAT INCLUDE  THE  INDIVIDUAL  IDENTIFYING
 INFORMATION, FOR REASONS INCLUDING, BUT NOT LIMITED TO, CONDUCTING CLIN-
 ICAL TRIALS OR RESEARCH REGARDING THE EFFECTS OF HEALTH CARE PRACTITION-
 ER PRESCRIBING PRACTICES;
   (F) CONDUCT DRUG SAFETY EVALUATIONS, PRODUCT RECALLS AND SPECIFIC RISK
 MANAGEMENT  PLANS,  AS  IDENTIFIED  OR REQUESTED BY THE FEDERAL FOOD AND
 DRUG ADMINISTRATION, OR ITS SUCCESSOR AGENCY;
   (G) ALLOW FOR THE APPROPRIATE TRANSFER OF RECORDS THAT MAY TAKE  PLACE
 WHEN OWNERSHIP OF A PHARMACY IS CHANGED OR TRANSFERRED;
   (H)  THE  PATIENT'S  HEALTH PLAN, INSURER, OR THIRD PARTY PAYER, OR AN
 AGENT, FOR THE PURPOSE OF  PAYMENT  OR  REIMBURSEMENT  FOR  HEALTH  CARE
 SERVICES, INCLUDING DETERMINING COMPLIANCE WITH THE TERMS OF COVERAGE OR
 MEDICAL NECESSITY, OR UTILIZATION REVIEW;
   (I)  A  PERSON OR ENTITY TO WHOM, AND FOR A PURPOSE FOR WHICH, DISCLO-
 SURE OR TRANSFER IS OTHERWISE EXPLICITLY AUTHORIZED OR REQUIRED BY LAW;
   (J) A PERSON OR ENTITY ACTING AS AN EMPLOYEE OR AGENT OF A  PERSON  OR
 ENTITY  UNDER  ANY  PRECEDING  PARAGRAPH  OF  THIS  SUBDIVISION, FOR THE
 PURPOSE OF AND CONSISTENT WITH THAT PARAGRAPH; OR
   (K) A GOVERNMENT ENTITY AS PROVIDED BY LAW.
   3. NOTHING IN THIS SECTION SHALL PROHIBIT THE COLLECTION, USE,  TRANS-
 FER,  OR  SALE  OF  PATIENT  AND PRESCRIBER DATA BY ZIP CODE, GEOGRAPHIC
 REGION, OR MEDICAL SPECIALTY FOR MARKETING PURPOSES, PROVIDING  IT  DOES
 NOT CONTAIN INDIVIDUAL IDENTIFYING INFORMATION.
   4. THIS SECTION SHALL NOT PREVENT ANY PERSON FROM DISCLOSING, SELLING,
 TRANSFERRING, OR EXCHANGING FOR VALUE INDIVIDUAL IDENTIFYING INFORMATION

 A. 1379                             3
 
 PERTAINING  TO  THAT PERSON, FOR ANY PURPOSE; PROVIDED THAT THE INFORMA-
 TION DOES NOT INCLUDE INDIVIDUAL IDENTIFYING INFORMATION  PERTAINING  TO
 ANY OTHER PERSON.
   5.  NOTHING  IN  THIS  SECTION  SHALL  PROHIBIT  A PHARMACY FROM USING
 PATIENT INFORMATION TO  PROVIDE  CARE  MANAGEMENT  EDUCATIONAL  COMMUNI-
 CATIONS  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.
   6. NO PERSON OR ENTITY TO WHOM OR WHICH INDIVIDUAL IDENTIFYING  INFOR-
 MATION  IS  DISCLOSED,  SOLD,  TRANSFERRED  OR EXCHANGED SHALL DISCLOSE,
 SELL, TRANSFER OR EXCHANGE IT TO ANY PERSON OR ENTITY OTHER THAN FOR THE
 LAWFUL  PURPOSE  FOR  WHICH  IT  WAS  DISCLOSED,  SOLD,  TRANSFERRED  OR
 EXCHANGED  TO  THE  PERSON OR ENTITY, AND WITHOUT SATISFACTORY ASSURANCE
 THAT THE RECIPIENT WILL SAFEGUARD THE RECORDS FROM  BEING  DISCLOSED  OR
 USED IN THE STATE FOR MARKETING PURPOSES.
   7.  THIS  SECTION  SHALL NOT BE CONSTRUED TO AUTHORIZE ANY DISCLOSURE,
 SALE, TRANSFER, OR EXCHANGE OF INDIVIDUAL IDENTIFYING  INFORMATION  THAT
 IS NOT OTHERWISE AUTHORIZED OR REQUIRED BY LAW.
   8. IN ADDITION TO THE COMMISSIONER'S AUTHORITY TO ENFORCE THIS SECTION
 UNDER  SECTION  TWELVE  OF THIS CHAPTER, THE ATTORNEY GENERAL SHALL HAVE
 THE AUTHORITY TO BRING AN ACTION TO ENFORCE COMPLIANCE WITH THIS SECTION
 WITHOUT REFERRAL BY THE COMMISSIONER.
   § 4.  This act shall take effect on  the  one  hundred  eightieth  day
 after it shall have become a law.