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
                               ___________

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.