As Congress returns for a new work period, both parties are renewing their focus on how to bring the costs of prescription drugs – and health care overall – down for Americans at a time of high inflation. Members are also considering how to increase transparency in health care to help Americans make informed choices about their health.
But as with any health policy, the stakes are high – and the consequences for getting it wrong are higher. Last week, Eric Boehm laid out in Reason why one bill – S. 127, or the PBM Transparency Act – may give prosecutors and state governments unprecedented and unfettered access to patients’ use of sensitive medications.
As Boehm lays out, the bill is intended to give the FTC and state attorneys-general transparency into prescription drug pricing. But that state power – to, as the bill writes, “conduct investigations, to administer oaths or affirmations, or to compel the attendance of witnesses or the production of documentary or other evidence” – is broad and far-reaching.
As Boehm writes:
In short, it could allow attorneys general to seek patient-level information about prescriptions—including potentially sensitive information about whether individuals have been prescribed, for example, abortion drugs or hormones used in gender transitions.
Robert Kruckenberg, an attorney with the Pacific Legal Foundation, agrees with this analysis. He told Reason:
“If an Attorney General brought a lawsuit against a pharmacy or a PBM, the details of what prescriptions the pharmacy filled and for whom would be relevant and, therefore, almost certainly subject to discovery…The Attorney General could potentially look at each transaction at a pharmacy for compliance involving specific drugs—including highly personal drugs like Prozac, Viagra, or Mifepristone.”
Worse, the disclosures of patient data that S. 127 authorizes may not be made known to patients – and they could lack any advocates for their privacy were a state attorney general to launch an investigation, Greg Dolin, a law professor at the University of Baltimore, told Reason.
As the article concludes, there are a number of questions still unanswered about how S. 127 might affect patient privacy for medications to treat sensitive health conditions. But as policymakers consider this policy, one thing is clear – the stakes are too high to get it wrong.