Despite Gov. Mills’ support, bill to store all Mainers’ prescription data hits public opposition

Gov. Janet Mills celebrates getting a flu shot in Portland, Maine. Photo courtesy Governor Janet Mills Facebook.

AUGUSTA – Rep. Patty Hymanson faced stiff opposition Tuesday to her proposal to create a law that would collect the prescription drug history of all Maine people and track it in a central, state-authorized database. That data would then be made available statewide to health care providers and pharmacies through an online system.

As previously reported, L.D. 2117 would convert Maine’s existing controlled substance monitoring system into a statewide database that recorded all prescription drug history for all Maine people. Some opponents of the bill showed up for the hearing and submitted testimony online, showing overwhelming opposition to the bill.

As of Tuesday evening at 8:30, all 80 pieces of public testimony from Maine people posted on the committee website for L.D. 2117 were in opposition to the bill.

Most of the public testimony is directed at patient privacy, but some added other thoughts, such as concerns about how the government will use the information in the future. Some even questioned the bill’s constitutionality.

“LD 2117, which enables massive government surveillance of Maine citizens and the tracking of individuals’ personal medical information on a scale not seen before, represents an unprecedented and unwarranted invasion of the privacy of Maine citizens,” testified Laura O’Hanlan, a highly-regarded attorney from Topsham. O’Hanlan submitted testimony in her personal capacity, not on behalf of any organization or client.

“It also intrudes impermissibly on the sanctity of the confidential physician-patient relationship,” continues O’Hanlan’s testimony. “This bill vastly expands the amount of very sensitive health information collected by the State, then it authorizes the disclosure of this information to others (within and outside the state) without the need for specific justifications or any meaningful restrictions on use, and without any safeguards to protect the information from unwarranted access or loss.”

“Without establishing a substantial state interest or compelling justification for the invocation of broad police powers, and the implementation of effective safeguards, LD 2117 is simply an unconstitutional invasion of privacy under the United States and Maine Constitutions,” testified O’Hanlan.

Michael Parker of Strong also made a point about the privacy protections guaranteed to Americans.

“The 4th Amendment to the US Constitution protects our right to be “secure in our papers”. If prescriptions given by a doctor are not our ‘papers’, then nothing is…not our emails, not our internet history – EVEN though they have been ruled as protected by the Supreme Court. This is a terrible slippery slope we’re currently on – please do not add to this erosion of liberty with this legislation,” said Parker in written testimony.

Other opposition was in concern to situations where the database could be hacked, or as has happened in New York, the prescription drug history of law-abiding citizens being used as a foundation for the taking of other rights. In New York, prescription drug data became a source of information used by the government to suspend permits for gun ownership.

Still more of the opposition from the public came from concerns about the ability of hackers to someday access the database.

At one point in the public hearing, an opponent of the bill asked the members of the Legislature’s Health and Human Services Committee to share with everyone in the room the list of prescription drugs they are currently taking.

No member of the Health and Human Services Committee was willing to divulge that info.

Rep. Hymanson told the committee that a “future amendment” will provide an opt-out to the program, but that was not made available to the public at the time of publication.

Governor Janet Mills’ administration submitted testimony through the Department of Health and Human Services Office of Behavioral Health offering strong support for the bill on the basis that it would help in the fight against the opioid crisis and make patients safer. The letter from Maine DHHS makes no mention of patient privacy concerns.

Some medical groups did appear before the committee to support Hymanson’s proposal, but a number of doctors and medical professionals also provided testimony in opposition.

However, even Rep. Hymanson acknowledged that her bill was raising concerns among Mainers about patient privacy, acknowledging that the committee was hearing from Mainers concerned about their personal medical privacy.

“This bill directs all dispensers, for example, all pharmacies, to report not only controlled substances such as opiates and benzodiazepines like Valium, in the existing Prescription Monitoring Program (PMP), but all prescribed medications,” said Hymanson.

Hymanson also said in her testimony that the managers of Maine’s current system say an opt-out can be created in the system. That option is not currently included in the text of L.D. 2117.

While saying that she is not seeking to violate patient privacy, Hymanson did say that if Mainers are concerned about privacy they may hesitate to seek out, or possibly delay receiving treatment.

Despite having the backing of Governor Janet Mills’ DHHS on the controversial bill, Hymanson acknowledged the strong opposition, telling the Health and Human Services Committee, “I spoke with a physician from Nebraska where they have expanded their PMP and he informed my testimony. As a result of my research into this bill, I believe my concerns have been somewhat alleviated. However, I will be listening closely to this public hearing for other peoples’ concerns.”

L.D. 2117 remains in committee awaiting a work session before it will be voted on by the Maine House and Senate.

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