Bill to Make Non-Certified-EHR Software Systems Illegal in New Jersey Shelved

On May 11, 2009 assemblyman Herb Conaway, Jr, District 7, and Upendra Chivukula, District 17 presented a bill which would make the distribution of any EMR in the state of NJ that is not certified by CCHIT illegal by January 1, 2011.

On June 7, 2009 a brisk discussion on the constitutionality of this law is brought up at www.emrupdate.com/forums/t/19877.aspx?PageIndex=2. This is what was discussed:

• Restraint of trade:

"As used in the Sherman Anti-Trust Act (15 U.S.C.A. § 1 et seq.), unreasonable restraints of trade are illegal per se and interfere with free competition in business and commercial transactions. Such restraint tends to restrict production, affect prices, or otherwise control the market to the detriment of purchasers or consumers of goods and services. A restraint of trade that is ordinarily reasonable can be rendered unreasonable if it is accompanied by a Specific Intent to achieve the equivalent of a forbidden restraint."

• Competition law, known in the United States as antitrust law, has three main elements:

Prohibiting agreements or practices that restrict free trading and competition between business entities. This includes in particular the repression of cartels.

Banning abusive behavior by a firm dominating a market, or anti-competitive practices that tend to lead to such a dominant position. Practices controlled in this way may include predatory pricing, tying, price gouging, refusal to deal, and many others.

Supervising the mergers and acquisitions of large corporations, including some joint ventures. Transactions that are considered to threaten the competitive process can be prohibited altogether, or approved subject to "remedies" such as an obligation to divest part of the merged business or to offer licenses or access to facilities to enable other businesses to continue competing.

The substance and practice of competition law varies from jurisdiction to jurisdiction. Protecting the interests of consumers (consumer welfare) and ensuring that entrepreneurs have an opportunity to compete in the market economy are often treated as important objectives. In recent decades, competition law has been viewed as a way to provide better public services. Robert Bork has found that competition laws can produce adverse effects when they reduce competition by protecting inefficient competitors and when costs of legal intervention are greater then benefits for the consumers.

On June 7, 2009 Dr. Scot Silverstein wrote an open letter to Dr. Mark Leavitt, the CEO of CCHIT asking his opinion on the matter. The following day Dr. Leavitt answered, publishing an editorial disavowing any personal or CCHIT involvement in the formulation of this bill and that he thought that it was not “an appropriate use of health IT certification.”

On June 7, 2009 I published most of the known facts about assemblyman Conaway and what might have influenced his vote:

• The Honorable Herb Conaway, MD, tried to be elected governor in 2004 but was soundly defeated by his Republican rival.
• Conaway actually started the mandate-EHR quest back 2 years ago, with the first law passed by the NJ Senate 1.5 years ago.
• In HIMSS 2008 Conaway was presented with the HIMSS State Leadership Award.
• In HIMSS 2009 he was also a major speaker on the "State Officials Legislative Forum."
• In February 2009 Conaway is featured in HIMSS HIELights webpage.
• Conaway is no friend of physicians and hospitals—check out the bills that he sponsored to force medical error reporting, for prohibiting the payment for "preventable medical errors" and now this pro-CCHIT HIT bill. If you look at here you'll see that he's for Obama's universal healthcare dreams, using an HIT backbone, of course.
• I couldn't find any major political contributions here, so I presume his greatest source of income are speaker fees. Thus I looked for his NJ financial disclosure sheets and there it was- he got money from HIMSS, from the "State Alliance for e-Health", from the "Healthcare Information Management Soc" (only in the 2007 and 2008 years, and I suspect amounts are under-reported):

In 2008: www.njleg.state.nj.us/ethics/FinancialDisclosure/ConawayH2008.pdf

In 2007: www.njleg.state.nj.us/ethics/FinancialDisclosure/ConawayH2007.pdf

In 2006: www.njleg.state.nj.us/ethics/FinancialDisclosure/ConawayH2006.pdf

In 2005: www.njleg.state.nj.us/ethics/FinancialDisclosure/ConawayH2005.pdf

Follow-up was done on October 5, 2009 on this bill:

• On the NJ Bill listing, all that is seen for Bill A4062 is: "6/8/2009 Introduced, Referred to Assembly Health and Senior Services Committee"
• To get at it, you have go to this list here, type in "Conaway", and then among the 191 bills, select the A4062.

It seems that the bill was introduced, but not acted on.

Al Borges MD