Proposed Change to Patients’ Records Act Creates Controversy

by HEATHER CHAMBERS , San Diego Business Journal

Adheris Inc. quietly changed its name
from Elensys Care Services following consumer outcry regarding alleged medical
privacy violations.

The year was 2000, and a class action lawsuit had been filed against the
company by San Diego law firm Finkelstein & Krinsk two years prior.

In the highly publicized suit, CVS pharmacy customers claimed that their
privacy rights were violated after CVS shared their prescription histories with
Adheris, a Massachusetts company that acted as a third party on behalf of drug
companies to send patients reminders to refill their prescriptions or to suggest
other drugs made by the same company.

Adheris, a subsidiary of New Jersey-based drug marketing company InVentiv
Health, is back in the spotlight today.

The company is pushing a bill in California, SB 1096, that would change
provisions of the Confidentiality of Medical Information Act to permit marketing
firms such as Adheris to partner with pharmacies to send mailings reminding
patients to take their medication or to renew or refill their prescription. Its
lobbying arm, Political Solutions Inc., has spent at least $113,650 to push
legislation that would lower restrictions on access to patient medical
information for marketing purposes, according to records filed with the
California secretary of state.

Wolf In Sheep’s Clothing?

‘This is truly a wolf in sheep’s clothing that is not appreciated by the
Legislature at this time,’ said Jeffrey Krinsk, an attorney with Finkelstein
& Krinsk, which is suing Adheris in a separate, class action lawsuit filed
in San Diego in 2004.

In that suit, customers of Albertsons affiliate pharmacy units Sav-On, Osco
and Jewel Osco allege that Albertsons, Adheris and drug giant AstraZeneca LP
illegally handled their confidential patient prescription information.

Under the state Confidentiality of Medical Information Act, pharmaceutical
firms cannot send direct mailings to patients. The patients, however, said they
received mailings that encouraged them to buy more medication or switch to an
alternate prescription drug made by the same drug company.

Krinsk said Adheris’ push to change state law is merely an attempt to avoid
his request for injunctive relief, which would stop Adheris from sending the

‘We could not prevent them from doing it in the future if it is
legal in the future,’ he said.

A Denial

Adheris Chief Executive Officer Dan Rubin denied in an e-mail that the bill
would affect the ongoing lawsuit.

‘We strongly believe that the lawsuit has absolutely no merit,’ he wrote.

Rubin said Adheris is considered a ‘business associate’ of the pharmacy under
federal law, and that it is bound by the same privacy provisions as the pharmacy
‘in the same way that other third-party companies assist physicians with claims
processing or billing, or assist managed care organizations in providing
‘explanation of benefit’ statements to their patients.’

State law, however, does not allow health care providers or others to use,
share or sell patients’ medical information for purposes other than health care
without their consent. California claims one of the nation’s strongest medical
privacy laws.

State Sen. Ron Calderon, D-Montebello, introduced the bill in January. It
passed the Senate on May 29 after lawmakers amended the bill to include an
opt-out provision giving patients an opportunity to decline mailings. The bill
is now in the Assembly.

Records show Calderon received more than $23,000 from drug companies and
other bill beneficiaries last year. Two of his contributors, Rite Aid and the
National Association of Chain Drug Stores, are supporters of the bill.

Critics of the proposal say the mailings would interfere with patient-doctor
relationships and serve as a profit boost to pharmaceutical companies in the
guise of reminder letters.

Jerry Flanagan, a health care advocate at the nonprofit Santa Monica-based
Consumer Watchdog, says safeguarding a patient’s medical records would be more
difficult with increased access to the information.

‘Once the information has been transferred, it’s very difficult to put that
genie back in the bottle,’ he said.

Help Or Hindrance?

Zack Kaldveer, a spokesman with the nonprofit advocacy organization Consumer
Federation of California
, says problems could arise if a patient begins taking a
medication and has an adverse reaction. Patients could receive notices reminding
them to take the medicine even after they have stopped treatment, he says.

‘Now, suddenly, you have a patient receiving contradictory instructions from
two sources,’ Kaldveer said.

But supporters of the proposed legislation, including the Mental Health
Association of California, say it aims to remedy a lack of patient adherence to
prescription drug regimens, which cost the state billions of dollars a year in
hospital costs.

‘It’s kind of an intuitive thing,’ said Rusty Selix, executive director and
legislative representative for the mental health group. ‘In an overwhelming
majority of cases, these people were depressed, were prescribed medications, and
we’d like to think a reminder to take their medications is a good