June 30th, 2011
Maine Data Mining Law Gets A Judicial Review
This is hardly surprising. After the US Supreme Court last week struck down a highly controversial Vermont law that restricts the sale of prescription drug info identifying prescribers and patients for commercial marketing purposes, a similar law in Maine is now being sent back to a federal appeals court for judicial review.
In pushing for its legislation, Vermont maintained such laws can protect doctor-patient relationships and consumer privacy, promote patient safety and contain health care costs. But market research firms successfully convinced the Supreme Court that the statute hurt public access to healthcare info and violated commercial speech (back story).
Maine and New Hampshire are the only states to have passed similar bills, but these are now coming under pressure. IMS Health, one of the market research firms that succeeded in overturning the Vermont law, believes the laws in both states will also be declared unconstitutional. To date, laws in both states have survived efforts to have them overturned.
“We are pleased with the Court’s decision to vacate the First Circuit’s judgment. The Maine law does nothing to improve healthcare, reduce costs or protect privacy as proponents claim,” Harvey Ashman, IMS Health senior vp and general counsel says in a statement. “Transparency is vitally important to advancing healthcare. The availability of information on the prescribing practices of physicians enables communications about new medicines, best practices and safety updates. This information is essential to improved patient care and safety.”
Whether Maine Attorney General William Schneider, a former assistant Republican leader in the Maine House of Representatives, will fight to maintain the law is unclear. A spokeswoman for the attorney general tells us that “we are studying the Vermont decision and will consider our options on how to proceed.”
Ties between Republicans, who recently took control of state government, and the pharmaceutical industry have been an issue in Maine lately. The Maine legislature earlier this month moved to repeal a 2003 law that was created to protect consumers from rising drug prices and prevent fraud by pharmacy benefit managers.
Among the high-profile Republicans connected to pharma is Ann Robinson, who has been an attorney for the Maine Republican Party and recently co-chaired the transition team for Governor Paul LePage (look here). She has also lobbied on behalf of PhRMA, the industry trade group, which also fought against the Vermont law. The AG spokeswoman would not comment on the issue.
“It’s a pro forma move (by the Supreme Court). They have to do that and send it to courts below. I’m not at all suprrised. I think it’s going to be a tough bar to get over and keep the laws in their current form,” says Sharon Treat, a Maine legislator and Democrat, who heads the National Legislative Association on Prescription Drug Prices and worked on developing the Maine law.
“The good news is the court laid out a potential path for revising the law and New Hampshire might pursue that,” she continues. “If the legislature wanted to make changes in response to anything the court decides, it won’t be able to take any action, becaust it’s not going to be in session. And given Republican control, it’s unlikely they’ll be supportive of redoing the law and I think they’ll do what the pharmaceutical industry wants them to do…But I don’t think this is a dead issue, in terms of this continuing to be looked at.”