QUESTION:        Some big drug companies sent letters to our hospital saying that they would stop selling us 340B drugs unless we participate in the 340B “ESP” program and give them specific claims information.  Is this legal?

ANSWER:          There is some question as to whether drug companies can condition the sale of 340B to submitting this kind of information.  The letters we have seen cite concerns about duplicate discounts between the Medicaid and the 340B program. These requests also raise serious questions about whether the disclosure of claims information would comply with HIPAA unless the protected health information is de-identified – which is easier said than done – or the drug companies sign business associate agreements – which is unlikely. The American Hospital Association recently sent a letter to the Secretary of HHS in opposition to these requests. Some of the requests set a deadline of October 1 for compliance, but it is doubtful that the matter will be resolved by then.  Stay tuned for further developments.  For more information, contact Henry Casale at hcasale@hortyspringer.com or 412-687-7677.