Correspondence

Prescribing Records and the First Amendment

N Engl J Med 2009; 361:209-210July 9, 2009

Article

To the Editor:

Two thoughtful Perspective articles by Post and by Grande and Asch (Feb. 19 issue)1,2 address the potential consequences of restricting information transparency and the complex policy and constitutional conundrums that can be created by this restriction.

Because variation in the availability and the utilization of health services contributes to considerable, measurable health disparities and related losses in productivity, information that illustrates these disparities and variations is a vital tool for consumers, health professionals, and policymakers alike. Critics of the economic stimulus legislation have described a provision in this bill that calls for information and research on utilization of health services as health care rationing. I do not agree.

It may be true that decisions based on evidence from this information will lead to reductions in the use of less effective, higher-cost services and products. Rather than rationing, this is an essential step toward improving quality and value in our health care system.

To address the urgent need to improve health care quality, affordability, and accessibility, information is absolutely necessary. With transparent information, we inform and empower consumers about provider quality, choices, and prices. We need to shed light on disparities in treatments and outcomes. We also promote efficiencies and competition among health care providers. Providers need to see data on variations in treatments and outcomes; without such data, they simply do not understand how their practices may be part of systemic problems. Transparent information also allows us to promote research and analysis of all aspects of the health care system. Groundbreaking research, such as the Framingham Heart Study, relies on statistically robust data over time.

With transparent information, we can generate analysis of quality, patient safety, and program operations; this is essential to managing chronic illnesses and appropriately using and advancing medical breakthroughs. We also can support metrics that lead to evidence-based improvements in medical care; this enables continual improvements of care and enhanced quality of life. These tools are particularly important when you consider our country's changing demographic characteristics. Evidenced-based improvements will be key to enhancing health and productivity in each segment of our population.

The availability of statistically robust health data, secured and transmitted with privacy protections such as encryption and removal of patient identifiers, permits analysis and research on safety, quality, variability, accessibility, and affordability. These encrypted data provide an alternative to personally identifiable data, thereby protecting patient privacy. To maximize the value and benefit to patients, data must be available for all stakeholders — not just selected or permitted entities. Transparency enhances knowledge and breakthroughs in the public and private sectors.

Louis W. Sullivan, M.D.
133 Peachtree St., Atlanta, GA 30303

Dr. Sullivan reports serving as chair of the Sullivan Alliance to Transform America's Health Professions and on the board of directors of Henry Schein, United Therapeutics, Emergent Biosolutions, and BioSante Pharmaceuticals. No other potential conflict of interest relevant to this letter was reported.

2 References

1. 1

   Post R. Prescribing records and the First Amendment -- New Hampshire's data-mining statute. N Engl J Med 2009;360:745-747
   Full Text | Web of Science | Medline

2. 2

   Grande D, Asch DA. Commercial versus social goals of tracking what doctors do. N Engl J Med 2009;360:747-749
   Full Text | Web of Science | Medline

Author/Editor Response

Sullivan writes in favor of information transparency in the health care system. He argues that such transparency will produce public benefits such as promoting “research and analysis of all aspects of the health care system” and generating “analysis of quality, patient safety, and program operations.” Although the New Hampshire statute under consideration generally prohibits the transfer of information involving the prescribing history of individual physicians for commercial purposes, it does explicitly permit such data to be transferred for other purposes, including “care management; utilization review by a health care provider, the patient's insurance provider or the agent of either; health care research; or as otherwise provided by law.” The statute thus explicitly permits the dissemination of data for the purposes that Sullivan identifies as involving public benefits. The deeper point, however, is that the question before the First Circuit in IMS Health, Inc. v. Ayotte, 550 F.3d 42 (1st Cir. 2008), was whether the statute was prohibited by the Constitution and not whether it was good public policy.

Robert Post, J.D., Ph.D.
Yale Law School, New Haven, CT 06520