• Data mining hearing refused
    BY LOUIS PORTER Vermont Press Bureau | June 30,2009
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    MONTPELIER — The U.S. Supreme Court declined to hear a New Hampshire case dealing with whether states can restrict the use of prescription writing patterns by companies that collect information on the medications that physicians prescribe, a practice known as data mining.

    Vermont is engaged in a separate federal lawsuit with those companies over virtually the same issue. It is even possible that the country's top court could eventually hear the Vermont case, which is proceeding through a separate appeals district and is behind the New Hampshire law in the judicial process.

    The high court did not give a reason in the New Hampshire case for declining to grant the companies a hearing.

    In a related case decided Friday, the federal Second Circuit Court of Appeals declined to grant an injunction blocking the implementation of Vermont's law requested by those same firms. That means the law restricting data mining, upheld by a Vermont federal judge in April, will likely go into effect on July 1.

    The Vermont statute outlaws the use of prescription-writing data for marketing unless a doctor opts into the system. Lawmakers worry that the use of that data to market drugs leads to the unnecessary prescription of more expensive medications.

    Officials with the data mining companies, IMS Health of Norwalk, Conn., and SDI, the former Verispan of Yardley, Pa., have said that the collection of that data is useful for research and improving health care. They have also argued in court that restricting such use violates the U.S. Constitution.

    They said that while they are disappointed the justices will not hear the New Hampshire case, it is not surprising because the Supreme Court takes very few of the cases that could come before it.

    Meanwhile the companies will move ahead with their appeal of the Federal District Court decision in the Vermont case.

    "We anticipate later this year having our appeal heard in the Second Circuit in New York," said Phil Oliva of IMS Health by telephone.

    If the Second Circuit Court rules for the data mining companies in the Vermont case while the First Circuit ruled for the state in the New Hampshire case, it is possible the Supreme Court could decide the matter based on the Vermont law.

    Vermont Attorney General William Sorrell said in a statement that he welcomed the district court's decision in the Vermont case, which declined to grant an injunction — effectively allowing the measure to go into effect.

    "The district court found that the law protects public health and will help curb the rising costs of health care in Vermont. After nearly two years of litigation, Vermonters can now start reaping the benefits of this important law," Sorrell said.

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