[Congressional Record Volume 148, Number 130 (Monday, October 7, 2002)]
[Senate]
[Pages S10046-S10047]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. NELSON of Florida:
  S. 3064. A bill to prohibit the use of patient databases for 
marketing without the express consent of the patient; to the Committee 
on Health, Education, Labor, and Pensions.
  Mr. NELSON of Florida. Mr. President, privacy concerns continues to 
grow not only in Florida, but throughout the Nation. This past August, 
the Administration finalized rules which will allow pharmacies and 
other health care entities to profit from their confidential patient 
databases by entering marketing agreements with giant health 
corporations.
  Under the new rules, a pharmacy can search its database for patients 
using a specific prescription drug and then turn around and send an 
unsolicited advertisement on behalf of a drug maker peddling a more 
expensive alternative drug, even if it's less effective. And to make 
matters worse, the consumer can't ask the company to stop.
  Instead of banning this anti-consumer practice, the Administration 
issued non-binding guidelines asking third parties not to provide 
financial incentives to doctors or pharmacies in exchange for 
suggesting certain drugs to patients. While the guidelines are well 
meaning, this terrible practice won't stop if the government doesn't do 
more than offer suggestions. We need to pass a law to prohibit this 
behavior.
  Today, I'm introducing a bill that allows consumers to decide if they 
want to receive health advertisements generated as a result of their 
personal health characteristics. Under my legislation, pharmacies, 
insurance companies and other health entities would be prohibited from 
using private, personally identifiable health information to provide 
marketing services to any entity without providing notice to the 
consumer about its disclosure practices and obtaining the consumer's 
express written consent.
  The legislation makes an exception for treatment communications 
unless the covered entity receives direct or indirect remuneration from 
a third party for making the communication. The free flow of 
information is important when sought by the consumer, but treatment 
communications tarnished by the marketing dollars of third parties 
create an inherent conflict of interest by encouraging patients, who 
don't know their pharmacist has been paid, to purchase high-cost 
alternative drugs that are not necessarily more effective than those 
prescribed by their doctor. Unnecessary spending driven by this 
practice, not only hurts individual consumers, but also the American 
taxpayer as Medicare and Medicaid costs skyrocket.

[[Page S10047]]

  My goal is to restore control to the consumer, so that they can make 
a decision to receive, or not receive, these advertisements once they 
have been informed that their personal information will be used for 
that purpose and once they understand that the covered entity is being 
paid to make a particular recommendation.
  I look forward to working with all interested parties to resolve this 
problem in a timely manner for consumers and ask unanimous consent that 
the text of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 3064

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Health Records 
     Confidentiality Act of 2002''.

      SEC. 2. DEFINITIONS.

       In this Act:
       (1) Individually identifiable health information.--The term 
     ``individually identifiable health information'' means 
     information that is a subset of health information, including 
     demographic information collected from an individual, that--
       (A) is created or received from a health care provider, 
     health plan, employer, or health care clearinghouse;
       (B) relates to the past, present, or future physical or 
     mental health or condition of an individual, the provision of 
     health care to an individual, or the past, present or future 
     payment for the provision of health care to an individual; 
     and
       (C)(i) identifies the individual; or
       (ii) with respect to which there is a reasonable basis to 
     believe that the information can be used to identify the 
     individual.
       (2) Marketing.--The term ``marketing'' means to make a 
     communication about a product or service to encourage 
     recipients of the communication to purchase or use the 
     product or service, but does not include communications made 
     as part of the treatment of a patient for the purpose of 
     furthering treatment unless the covered entity receives 
     direct or indirect remuneration from a third party for making 
     the communication.

     SEC. 3. PROTECTION OF PRIVATE HEALTH INFORMATION.

       Except in accordance with section 4, a health care 
     provider, pharmacy, health researcher, health plan, health 
     oversight agency, public health authority, employer, health 
     or life insurer, or school or university shall not--
       (1) disclose individually identifiable health information 
     to an entity for marketing the products or services of such 
     entity; or
       (2) use individually identifiable health information in its 
     possession to provide marketing services to any entity.

     SEC. 4. NOTICE AND CONSENT REQUIREMENTS.

       A health care provider, pharmacy, health researcher, health 
     plan, health oversight agency, public health authority, 
     employer, health or life insurer, or school or university may 
     provide marketing services to a pharmaceutical company if 
     such health care entity--
       (1) provides clear and conspicuous notice to the individual 
     involved concerning its disclosure practices for all 
     individually identifiable health information collected or 
     created with regard to the individual; and
       (2) obtains the consent of the individual involved to use 
     the information and that consent is manifested by an 
     affirmative act in a written communication which only 
     references and applies to the specific marketing purpose for 
     which the information is to be used.
                                 ______