Patient Data Privacy? Not According to the Eighth Circuit Court

How important is patient privacy? One would think it pretty important, given the federal government’s passage of the Health Insurance Portability and Accountability Act (HIPAA) some 24 years ago. But once again it seems pharmacy benefit managers (PBMs) see themselves as above the law. And now apparently so does the Eight Circuit Court of Appeals.

The Eighth Circuit recently ruled in favor of the nation’s largest and arguably one its smarmiest pharmacy benefit managers (PBMs), Express Scripts (ESI), after a group of independent pharmacies accused ESI of using confidential customer information to steer patients to its mail-order pharmacy.

The pharmacies argued that Express Scripts was collecting unnecessary information in its own self-interests.

Not known for thinking much beyond precedent, the Eighth Circuit Court disagreed, writing, “ESI obtains the information from [the Pharmacies] to administer and process pharmacy claims and that information, per the Provider Manual, is under ESI’s control. Moreover, the Provider Manual includes no language precluding ESI from using the customer information independent of ESI’s relationship with [the Pharmacies].”

So now might be a good moment to review HIPAA basics, which were intended to protect patient privacy as paper health records transitioned into electronic medical records.

The goal of the Privacy Rule, according to the U.S. Health and Human Services Department, is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high-quality health care and to protect the public’s health and well being. The Rule strikes a balance that permits important uses of information while protecting the privacy of people who seek care and healing.

Which takes us to the bigger issue: important uses of information. In what universe is patient data so important that it can be used to manipulate, persuade, cajole, or in any other way lure a patient away from their local pharmacy of choice to a mail-order pharmacy?

And why would anyone — circuit court judge or otherwise — think that was a justified invasion of patient privacy?

This is why there are so many organizations like ours forming in the U.S.

Because in the eyes of organizations like Express Scripts — now part of CIGNA, the 13th largest corporation in the U.S. — apparently nothing, including the privacy of patient information, is more important than shareholder value.

Furthermore, even though Express Scripts is the defendant in a variety of lawsuits — overcharging the State of Ohio; improperly handling Veterans’ medical benefits, and that’s just the beginning — the court says ESI’s contracts are so powerful, nothing can stop them from mining patient data to generate more sales.

How far will this go before patients and their confidential information will come first?

HIPAA laws notwithstanding, patient protection and privacy should be an issue of the first order in any court of law. The fact that the Eighth Circuit Court will not overrule a provider manual — written without oversight by ESI themselves — in the interest of the common good should give every one of us pause.

People fear socialized medicine because they fear substandard service, the loss of freedom, and the lack of choice. But under the current system, where 85 percent of all prescriptions processed go through only 3 corporations — one of them Express Scripts — we should be asking ourselves how much freedom do we currently have? And when was the last time we made a choice that wasn’t simply one of the options granted us by our health plan? It’s socialized medicine in all but name, controlled by giant corporate entities whose only allegiance is to shareholders.

The U.S. healthcare system really is ‘going to hell in a hand-basket’ — with the blessing of the Eighth Circuit Court.

PUTT is a nonprofit organization dedicated to advocating on behalf of independent pharmacy & fighting against PBM anti-competitive business tactics.

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