New Hampshire Libertarians Score a Victory for Patient Privacy Rights

I have done book reviews on different tomes related to diabetes, but I also read content unrelated to diabetes -- it's just that I don't usually write about it. One of my favorite books is Joel Garreau's "Nine Nations of North America", a book written in 1981. The author, a senior writer for The Washington Post, president of his company, The Garreau Group, writes (convincingly, I might add) how the continent of North America really works right now, not as if it were 3 nations -- the United States, Canada, and Mexico; not as if it were 50+ states and provinces; not as it should work, as an academic might have it; but how it is really working. In the book, Garreau argues that North America can really be divided into 9 regions, or "nations", which each have distinctive economic and cultural features -- and each has it's own capital city. You can visit the Garreau Group's website for more detail on the book, but interestingly, few people who have ever read this book seem ever seem to argue or disagree with it.

Joel Garreau's Nine Nations of North AmericaFor example, he argues that the states of Florida and California don't really exist functionally, but are conglomerations of different nations, each with different loyalties, economic and social priorities and alliances. Consequently, there are sometimes disagreements between two big California "nations" Ecotopia and MexAmerica (represented by their respective capitol cities, San Francisco and Los Angeles), for example. Political gridlock in Sacramento is often an example of this.

Don't Mistake Libertarianism for Liberalism

He also argues that with the possible exception of the southwestern portion of Connecticut and parts of Maine which border Quebec, only New England's political boundaries have any genuine meaning. Maine and Nova Scotia (Canada, for my geographically-challenged readers) share a host of similarities -- an Atlantic coastline, similar climate, etc. Aside from being the best source for lobster in North America (and possibly Maple Syrup, although not the ideal food for people with diabetes, unless you're treating hypoglycemia). Politically, in spite of being in 2 different nations, same-sex marriage will be permitted across the entire region both in Canada's Atlantic Provinces as well as in the U.S. New England states (except Rhode Island, whose legislature remains very heavily influenced by Catholic leaders, and has therefore not voted on the issue, but lest anyone consider this social conservatism, think again: Rhode Island is a renegade in New England in that there are no laws prohibiting prostitution in the state, only a law that prohibits public solicitation). Outsiders sometimes naïvely mistake this for liberalism, but the reality is far more libertarian than liberal. This political philosophy is noted on each New Hampshire license plate with the state motto "Live Free or Die". The prevailing view across the region is that the government has no right to meddle in personal lives and that laws cannot and should not favor any particular type of relationship between two consenting parties. Fortunately, this libertarian view also extends to doctors' drug prescribing habits.

In recent years, at least on the U.S.-side of the "nation" known as New England, has been a move in Northern New England (Maine, New Hampshire, and Vermont) to limit access to doctor's prescription-writing by data-mining companies that analyze and then sell prescription dispensing information (I'm not 100% certain how Canada regulates this), which is then used by salespeople to focus on certain "underperforming" doctors who suddenly get lots of attention from salespeople than do doctors who prescribe a given drug at "normal" rates (as determined by the drug companies).

New Hampshire's Strike Against Prescription Data-Miners

Several years ago, the New Hampshire legislature was concerned about this practice, and in an effort to reduce health-care costs, passed a law aimed at making it more difficult for drug companies to engage in targeted marketing pitches to particular doctors, which the state believes results in expensive brand-name drug use (BTW, there ARE medical journal references which seem to validate this belief). New Hampshire passed a first-in-the-nation prescription privacy law that made doctors' prescription-writing habits confidential, barring the data-mining companies from providing drugmakers with doctor prescription histories for use in detailing. The measure applies only to information the data-mining companies acquire within the state, typically from pharmacies (especially major pharmacy chains such as CVS/Caremark, Walgreen's and Rite Aid Pharmacies, who sell Rx data to data-mining companies for a profit).

New Hampshire's Nashua Telegraph newspaper reported that "State Rep. Cindy Rosenwald, D-Nashua, wrote the bill at the behest of doctors who complained about these companies wanting to know their drug-dispensing habits."

She also said that blocking access to this information prevents major pharmaceutical companies from trying to influence doctors on their drug choices by sending them gifts or awarding them lucrative trips.

Since New Hampshire passed that groundbreaking law, both neighboring Vermont and Maine have also adopted very similar restrictions to prescription-writing data, and reportedly, similar legislation is now also pending in as many as two dozen other states.

Not surprisingly, the New Hampshire law was greeted by lawsuits filed by the 2 biggest aggregators of this data, IMS Health Inc., of Norwalk, CT, and Verispan LLC, of Yardley, PA which was begun by drug wholesaler McKesson (incidentally, both of these companies are physically located in the "nation" known as the Foundry, at least according to Mr. Garreau, not New England, even though Norwalk, CT is in the New England state of Connecticut).

Two years ago, after a trial in Concord, New Hampshire the drug marketing companies managed to convince Judge Paul Barbadoro to strike down the constitutionality of New Hampshire's Prescription Privacy law. But 6 months later, an appeals court in Boston overturned that decision, setting up the request for the U.S. Supreme Court to hear it. The data-mining companies challenged the law on the basis that the statute violated their constitutional free-speech rights. They also claimed that money made by selling the information to drug-makers allows them to provide the same material to researchers and humanitarian organizations at little or no cost.

The companies also warned in court papers that the law could be broadly applied to newspaper publication of stock market information and many other services that gather large amounts of information.

Meanwhile, the 2nd U.S. Circuit Court of Appeals is allowing Vermont to enforce a law similar to the New Hampshire ban on data-mining prescription information. The case is: IMS Health Inc. and Verispan LLC v. Ayotte, 08-1202.


Not surprisingly, drug and biotechnology industry trade groups supported their appeal.

But on Monday, the U.S. Supreme Court responded (sort of) to the appeal. The Supreme Court ruled that it would not stop the state of New Hampshire from making doctors' prescription-writing habits confidential over the objection of companies who analyze and sell that information. This also means that Vermont and Maine's prescription privacy laws cannot be challenged, either.

The issue of state's rights has been favored even by so-called conservative justices, who tend to favor the rights of states to govern themselves as they see fit without too much of Washington's influence (especially their recent efforts, which have been dubbed as "unfunded mandates" placed on the states without any money to support the Federal government initiatives).

Although similar legislation is now pending in two dozen other states, so far, the impact of 3 relatively small (population-wise) states is unlikely to influence the practice significantly. But the Supreme Court's refusal to hear the case represents a major victory for patients, doctors and the right to privacy!

What Else You Can Do

For those of you who are concerned about patient privacy, you may also wish to ask your Congressional representatives to support H.R. 2630 "Protect Patients and Physicians Privacy Act" today. This bill would:

• Grant individuals the right to opt out of any federal electronic system that tracks/stores their personal medical information
• Require informed consent for the sharing of electronic medical records (for federal programs)
• Prohibit health information from being placed in a federally mandated, created, or funded electronic system without a patient's written, informed consent

These are common-sense protections which are not protected by current Federal laws, but with this new legislation, some of these glaring privacy omissions would be addressed properly for the first time!