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Consumer Protection

ONC’s De-Regulatory Announcement Aims at Enticing Industry to Adopt 2015 Edition Criteria

by Scott Weinstein | Nov 6, 2017 | Big Data, Consumer Protection, Cybersecurity, Mobile Apps, Telehealth

In September, the Office of the National Coordinator for Health Information Technology (ONC) announced that it is scaling back requirements for third-party certification of criteria related to certified electronic health record (EHR) technology (CEHRT). Going forward, ONC will allow health developers to self-declare their products’ conformance with 30 of the 55 certification criteria.

ONC will also exercise discretion and not enforce the requirement that certification bodies conduct randomized surveillance of two percent of the health IT certifications they issue.

Read “ONC’s De-Regulatory Announcement Aims at Enticing Industry to Adopt 2015 Edition Criteria.”

Upcoming FTC Workshop on Informational Harm | Next Brushstrokes on the FTC’s Consumer Privacy and Security Enforcement Canvas

by McDermott Will & Emery and Bernadette M. Broccolo | Oct 25, 2017 | Consumer Protection, Cybersecurity, Data Privacy, Telehealth

On September 29, the Federal Trade Commission (FTC) formally announced a December 12th workshop on informational injury—the injury a consumer suffers when information about them is misused. The workshop will address questions such as, how to characterize and measure such injury and what factors businesses and consumers should consider the benefits and risks of collecting, using and providing personal information so as to gain further perspective for how the FTC should apply its legal framework for privacy and security enforcement under 15 USC § 45 (Section 5). In her September 19th remarks to the Federal Communications Bar Association, Commissioner Maureen Ohlhausen, the Acting Chairman of the FTC, metaphorically characterized the workshop’s purpose as providing the next brushstrokes on the unfinished enforcement landscape the FTC is painting on its legal framework canvas. The full list of specific questions to be addressed may be accessed here.

Background. The FTC views itself as the primary US enforcer of data privacy and security, a role it recently assumed. While the FTC’s enforcement against practices causing informational injury through administrative proceedings goes back as far as 2002, its ability to pursue corporate liability for data security and privacy practices under its Section 5 “unfair or deceptive trade practices” jurisdiction was only ratified in 2015 by the US Court of Appeals for the Third Circuit in FTC v. Wyndham Worldwide Corporation. The FTC has actively invoked its enforcement authority but, in doing so, has been selective in determining which consumer informational injuries to pursue by questioning the strength of evidence connecting problematic practices with the injury, examining the magnitude of the injury and inquiring as to whether the injury is imminent or has been realized. (more…)

UK Government Issues Cybersecurity Guidance for Connected and Automated Vehicles

by Michael G. Morgan | Sep 13, 2017 | Cloud, Consumer Protection, Cybersecurity, Data Privacy, General Interest

On 6 August 2017, the UK government released ‘The Key Principles of Vehicle Cyber Security for Connected and Automated Vehicles’, guidance aimed at ensuring minimum cybersecurity protections for consumers in the manufacture and operation of connected and automated vehicles.

Connected and automated vehicles fall into the category of so-called ‘smart cars’. Connected vehicles have gained, and will continue to gain, adoption in the market and, indeed, are expected to make up more than half of new vehicles by 2020. Such cars have the ability through the use of various technologies to communicate with the driver, other cars, application providers, traffic infrastructure and the Cloud. Automated vehicles, also known as autonomous vehicles, include self-driving features that allow the vehicle to control key functions–like observing the vehicle’s environment, steering, acceleration, parking, and lane changes–that traditionally have been performed by a human driver. Consumers in certain markets have been able to purchase vehicles with certain autonomous driving features for the past few years, and vehicle manufacturers have announced plans to enable vehicles to be fully self-driving under certain conditions, in the near future.

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Many Lessons Still Need to be Learned regarding Patient Access to Health Care Information

by McDermott Will & Emery and Lisa Mazur | Aug 23, 2017 | Consumer Protection, Data Privacy

The Office of the National Coordinator for Health Information Technology recently released a report (the Report) detailing user experience research on patient access to health data. The Report sought to examine the experiences of 17 individuals and processes of 50 health systems, with commentary from four medical record fulfillment administrators, to determine how the medical record request process can be improved for consumers. The Report ultimately concludes that patients and health care providers alike are in need of a well-defined process that is convenient, expedient and transparent.

Background

The Health Insurance Patient Portability and Accountability Act (HIPAA) does not create a uniform process for storage and production of medical records across providers, and in-turn did not create a convenient request process for patients. Generally, patients have a right to access a designated record set, which includes 1) medical records and billing records about individuals maintained by or for a covered health care provider; 2) enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; and 3) other records that are used, in whole or in part, by or for the covered entity to make decisions about individuals. Upon receipt of a request by a patient to access their health records, the covered entity receiving the request must produce the records within 30 days. Prior to producing those records, however, the covered entity must verify the identity of the individual making the request. This often involves signature verification or similar processes.

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Next Generation of Patient Care: Balancing Digital Engagement with Patient and Consumer Privacy

by Jennifer S. Geetter and Lisa Mazur | Aug 18, 2017 | Consumer Protection, Data Privacy, Mobile Apps, Telehealth

Jennifer Geetter and Lisa Schmitz Mazur wrote this bylined article on the regulatory implications of technology-supported devices, resources, and solutions that facilitate health patient-provider interaction. “Health industry regulators are struggling with how to apply the existing privacy regulatory regime, and the permitted uses and disclosures for which they provide, in this new world of healthcare innovation,” the authors wrote.

Regulating the Internet of Toys

by Amy C. Pimentel | Jul 28, 2017 | Consumer Protection, Cybersecurity, Data Privacy, General Interest

New technologies and the expansion of the Internet of Things have allowed children of this generation to experience seamless interactive technologies through microphones, GPS devices, speech recognition, sensors, cameras and other technological capabilities. These advancements create new markets for entertainment and education alike and, in the process, collect endless amounts of data from children–from their names and locations to their likes/dislikes and innermost thoughts.

The collection of data through this Internet of Toys is on the tongues of regulators and law enforcement, who are warning parents to be wary when purchasing internet-connected toys and other devices for children. These warnings also extend to connected toy makers, urging companies to comply with children’s privacy rules and signaling that focused enforcement is forthcoming.

Federal Trade Commission Makes Clear That Connected Toy Makers Must Comply with COPPA

On June 21 2017, the Federal Trade Commission (FTC) updated its guidance for companies required to comply with the Children’s Online Privacy and Protection Act (COPPA) to ensure those companies implement key protections with respect to Internet-connected toys and associated services. While the FTC’s Six Step Compliance Plan for COPPA compliance is not entirely new, there are a few key updates that reflect developments in the Internet of Toys marketplace. (more…)

False Claims Act Settlement with eClinicalWorks Raises Questions for Electronic Health Record Software Vendors

by Daniel F. Gottlieb and Tony Maida | Jul 7, 2017 | Consumer Protection, Data Privacy, General Interest, Uncategorized

On May 31, 2017, the US Department of Justice announced a Settlement Agreement under which eClinicalWorks, a vendor of electronic health record software, agreed to pay $155 million and enter into a five-year Corporate Integrity Agreement to resolve allegations that it caused its customers to submit false claims for Medicare and Medicaid meaningful use payments in violation of the False Claims Act.

Read the full article.

Recent $2.5 Million OCR Settlement Is a Warning to Wireless Health Service Providers

by Amanda Enyeart, Drew Elizabeth McCormick and Lisa Mazur | May 3, 2017 | Consumer Protection, Cybersecurity, Data breach, Data Privacy, Telehealth

On April 24, the US Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced a Health Insurance Portability and Accountability Act of 1996 (HIPAA) settlement in the amount of $2.5 million based on the impermissible disclosure of unsecured electronic protected health information (ePHI) by a provider of remote mobile monitoring, with a focus on patients who are at risk for cardiac arrhythmias.

In January 2012, the remote monitoring company reported that a workforce member’s laptop containing the ePHI of over a thousand individuals was stolen from a parked vehicle outside of the employee’s home. A little over one year later, the same company reported a second breach that compromised the ePHI of twice as many individuals (details regarding this breach were not provided by OCR).

OCR’s investigation revealed that the company allegedly had insufficient risk analysis and risk management processes in place at the time of the theft. Additionally, the company’s draft policies and procedures implementing the standards of the HIPAA Security Rule had never been implemented, and the company was also unable to produce final versions of any policies or procedures regarding the implementation of safeguards for ePHI, including those for mobile devices.

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Guide from the Italian Data Protection Authority on the Application of the GDPR: Recommendations on How to Get Started!

by Martino Sforza | May 3, 2017 | Consumer Protection, Data Privacy

On April 28, 2017, the Italian Data Privacy Authority published a Guide on the application of the new General Data Protection Regulation (GDPR). The Guide does not set out implementing rules of the GDPR but rather provides a summary of “what will remain the same” and “what will change” in the main six areas covered by the GDPR:

Legal basis for the processing
Information to be provided to data subjects
Data subjects’ rights
Data controller, data processor and persons in charge of the processing
Data privacy risk assessment and accountability
International transfer of data

In addition, for each of the above six macro areas, the Guide provides recommendations on the measures that companies and public entities can already put in place, in order to ensure compliance with specific provisions of the GDPR, which do not need further intervention at a national level for their implementation.

The Guide will be amended, updated or supplemented in light of the development of the debate at a national and European level on the application of the GDPR. The data protection authorities of France and the Netherlands published similar guides respectively on March 15 and April 13, 2017, which are however structured in a slightly different way, as they propose (especially the French one) a more systematic “step by step” methodology in order to help organizations get ready for the GDPR.

Elisabetta Pagone contributed to this blog post.

More Federal Legislation Aimed at Expanding Medicare Coverage of Telehealth Services

by McDermott Will & Emery, Dale C. Van Demark, Lisa Mazur and Marshall E. Jackson, Jr. | Apr 11, 2017 | Consumer Protection, Data Privacy, General Interest, Telehealth

Late last month, Senator Cory Gardner (R-CO) and Senator Gary Peters (D-MI) introduced Senate Bill 787, the Telehealth Innovation and Improvement Act (Telehealth Improvement Act), which is focused on expanding Medicare’s currently limited coverage of telehealth services and opportunities for innovation.

The Telehealth Improvement Act would require the Center for Medicare and Medicaid Innovation (CMMI) to test the effect of including telehealth services in Medicare health care delivery reform models. More specifically, the Act would require CMMI to assess telehealth models for effectiveness, cost and quality improvement, and if the telehealth model meets these criteria, then the model will be covered through the Medicare program. (more…)

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