View From The Hill: The Election Results and State Influences on Patient Safety


January / February 2007

View From The Hill

The Election Results and State Influences on Patient Safety

The American electorate has spoken, and the new 110th Congress has taken office with Democrats in charge of both the United States House of Representatives and the Senate. Democrats gained six seats in the Senate and now have a slim majority of 51-49. In the House, Democrats gained 30 seats for 233 seats to 201 for Republicans, with one seat still undecided.

A lame duck session was held after the November elections to try to complete the business of the 109th Congress. Unfortunately, the only action completed was to extend the Continuing Resolution Authority, keeping more than 50% of the federal government operating through Feb. 15, 2007. On the remaining 50+ patient safety or HIT pieces of legislation, no action was seen. This was a great disappointment to many advocates in the industry.

Election results for state office were similar to the congressional elections. For the first time since 1994, the Democrats took control of the majority of the nation’s legislatures. Democrats control both legislative chambers in 23 states, Republicans in 15 states, and control is evenly split in 11 states. Nebraska has a unicameral legislature and is non-partisan. Political analysts reported that Democrats gained 149 seats in the East, 107 seats in the Midwest, 21 seats in the South, and 73 seats in the West for a total pickup at the state level of 350 seats.

Focus Shifting to State Action
Democrats gained six governor’s races in Massachusetts, New York, Maryland, Ohio, Arkansas, and Colorado. Overnight, control of the Governor’s mansions went from 28 Republicans and 22 Democrats to 28 Democrats and 22 Republicans. It appears that governors and other state elected officials are choosing to address issues like patient safety and healthcare information technology (HIT), which were once considered federal issues, and the focus may continue to shift from Washington to more grassroots policy and political action.

A relevant example is legislation (HB 1346) passed by the New Hampshire House and Senate that declares prescription information shall not be used, transferred, licensed, or sold for any commercial purpose except for limited purposes. The New Hampshire State Senate voted 22 to 0 in favor of the legislation sponsored by Rep. Cindy Rosenwald (D-Nashua) who was moved to act by complaints from her husband, a doctor, about pharmaceutical sales agents who try to influence which drugs he dispenses.

The legislation also outlaws companies from marketing patient information on prescriptions. This is intended to be protected by federal privacy laws, but on occasion can fall legally into the hands of marketers, who sell names and addresses to drug companies, pharmacies, and research institutions.

Two of the nation’s largest medical data firms, IMS Health Inc. and Verispan LLC, have sued to block the law. IMS and Verispan purport the state’s new law violates freedom of speech, illegally restricts interstate trade, and could keep unscrupulous doctors from being exposed, according to the suit filed in U.S. District Court in Concord.

The statute makes it a criminal act to share prescriber-identified data (with patient de-identified data). Some industry experts believe that prohibiting the exchange of clinician prescription history is making private the wrong thing, and is the creation of a barrier, not a removal of one from the perspective of HIT adoption. Some believe that this law will also reduce patient safety and quality of care by reducing provider transparency. This law prohibits the use, sale, transfer, etc. of provider-identified prescription data. If we can’t learn about a clinician’s prescription history, we can’t improve care, improve patient safety, or cut costs.

To implement HIPAA, the U.S. Department of Health and Human Services adopted regulations that took effect in April 2003. However, in the event state law is more restrictive than the HIPAA privacy regulations, state law will apply.

Patient safety and HIT advocates must realize that one person can make a difference. This physician happened to be married to a legislator. Most of us have personal and professional experiences that can also bring about change in public policy. However, no one will ever know if we refuse to share our knowledge and information with policy makers.

Employer and consumer interests in privacy and cost issues are driving much of the debate in healthcare across the country. However, Congress and your state-elected officials will not know or understand the impact of policies on healthcare professionals unless they hear your perspective on the issues.

The New Hampshire law is the first of its kind in the nation. However, at least 13 other states may be watching this very closely and proposing to pass similar legislation at the state level in 2007. Now is the time for you to get involved and take action!

Dave Roberts is vice president of government relations for the Healthcfare Information and Management Systems Society (HIMSS) and chief executive of HIMSS’ Alexandria, Virginia, Office of Advocacy & Public Policy. Formerly a professional staff member for both the U.S. House Appropriations Committee and the U.S. Senate Health Subcommittee on the Handicapped and a civilian financial analyst for the U.S. Air Force, Roberts now resides with his family in Solana Beach, California, where he is an elected member of the City Council. He is a member of the Editorial Advisory Board for Patient Safety and Quality Healthcare and may be contacted at