SECTION 1. Chapter 94C of the general laws, as most recently appearing in the 2008 Official Edition, is hereby amended by inserting after section 34, the following new section: -
Section 34A. Unlawful Use of Prescription Information.
It is the intent of the legislature to advance the state interests in cost containment and the protection of public health by regulating the flow of patient-identifiable and prescriber-identifiable data from the collectors of such data to data miners for commercial purposes, including, but not limited to, advertising , marketing, promotion, or any activity that could be used to influence sales or market share of a pharmaceutical product, influence or evaluate the prescribing behavior of an individual health care professional, or evaluate the effectiveness of a professional pharmaceutical detailing sales force. Nothing in this section shall be interpreted to regulate conduct that takes place wholly outside the commonwealth.
(a) No person, including any pharmacist registered under section 24 of chapter 112, a carrier authorized to transact accident and health insurance under chapter 175, a non-profit hospital service corporation licensed under chapter 176A, a non-profit medical service corporation licensed under 176B, a health maintenance corporation licensed under chapter 176G, a preferred provider arrangement licensed under 176I, an electronic transmission intermediary, retail, mail order, or Internet pharmacy or other similar entity, a third party administrator, a pharmacy benefit manager or other similar entity with claims data, eligibility data, provider files and other information relating to health care provided by health care providers in the commonwealth, or an entity that offers a policy certificate or contract that provides coverage solely for dental care services or vision care services, shall license, transfer, use, sell or lease records relative to prescription information containing patient-identifiable and prescriber-identifiable data, for any commercial purpose, except for the limited purposes of pharmacy reimbursement; formulary compliance; 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. For purpose of this section, a prescriber is any health care professional legally authorized to issue prescriptions for medication. Commercial purpose includes, but is not limited to, advertising, marketing, promotion, or any activity that could be used to influence sales or market share of a pharmaceutical product, influence or evaluate the prescribing behavior of an individual health care professional, or evaluate the effectiveness of a professional pharmaceutical detailing sales force. Electronic transmission intermediary means an entity that provides the infrastructure that connects the computer systems or other electronic devices used by and between health care practitioners, prescribers, pharmacies, healthcare facilities, pharmacy benefit managers and agents and contractors of those persons and entities in order to facilitate the secure transmission of an individual’s prescription drug order, refill, authorization request, claim, payment or other prescription drug information. 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 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 prescriber de-identified data by zip code, geographic region, or medical specialty for commercial purposes.
(b) Whoever violates any provision of this section shall be punished by imprisonment in the state prison for not more than four years or in a house of correction for not more than two and one half years or by a fine of not more than twenty thousand dollars, or by both such fine and imprisonment. Whoever violates any provision of this section after one or more prior convictions of a violation of this section, or of a felony under any other provision of this chapter, or under a provision of prior law relative to the sale or manufacture of a narcotic drug or a harmful drug as defined in said earlier law shall be punished by imprisonment in the state prison for not more than eight years or in a jail or house of correction for not more than two and one half years, or by a fine of not more than thirty thousand dollars or by both such fine and imprisonment.
(c) In addition to other appropriate remedies under this chapter, a violation of this section is an unfair or deceptive act or practice within the meaning of section 2 of chapter 93A of the general laws. Any right or remedy set forth in chapter 93A may be used to enforce the provisions of this section.
SECTION 2. This act shall take effect upon passage.
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