Key Issues We’re Tracking as CCPA Enforcement Nears

Although 2020 has already provided more than its share of surprises for businesses, one thing appears to remain unchanged: the California attorney general’s commitment to enforcing the California Consumer Privacy Act beginning July 1, 2020. As companies work to ensure compliance with this legislation, we explore several key issues. No one will disagree that a lot has happened since the California Consumer Privacy Act (CCPA) went into effect on January 1, 2020. Despite the Coronavirus (COVID-19) pandemic, the invasion of murder hornets and a number of other not-entirely pleasant surprises that 2020 has brought us thus far, it appears that the California attorney general is still committed to enforcing the CCPA starting on July 1, 2020. As your business prepares for CCPA enforcement, there are a number of issues to keep in mind: 1. The CCPA regulations still have not been finalized and are unlikely to take effect until October 2020. The attorney general’s...

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Importance of CCPA Compliance Highlighted by First Round of Private Actions

The first wave of California Consumer Privacy Act litigation has begun to roll in, and the complaints are already raising interesting questions about the scope of CCPA’s private right of action. The actions assert a variety of claims under numerous theories and present a broad range of potential risks to businesses subject to CCPA. In light of the many questions that surround CCPA’s private right of action, the extent of possible liability from private litigation is still largely unknown and potentially significant. The first wave of private lawsuits filed under the California Consumer Privacy Act (CCPA) has begun to roll in, and the complaints are already raising interesting questions about the scope of CCPA’s private right of action. The recent explosion in popularity of video conferencing and social media software in response to the COVID-19 pandemic—and the technical issues some of these products have experienced—has inspired its own wave of litigation,...

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New California Privacy Ballot Initiative Would Expand the CCPA

A proposed ballot initiative in California known as the California Privacy Rights Act, which is likely to pass if placed on the 2020 ballot, would both clarify and expand the existing California Consumer Privacy Act. Companies doing business in the state should closely monitor these developments and prepare for compliance, as we outline in this article. A California ballot initiative known as the California Privacy Rights Act (CPRA) would clarify and expand the California Consumer Privacy Act (CCPA), granting significant new rights to consumers and imposing additional liability risks on companies doing business in the state. The CPRA is an update to the California Privacy Rights and Enforcement Act (CPREA) ballot initiative, which was proposed in late 2019 by the Californians for Consumer Privacy, which also sought to broadly amend and prevent changes to the CCPA that would undermine its consumer protections. The proposed ballot initiative, submitted by the...

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Public Backlash Calls Use of Facial Recognition Systems into Question

In recent weeks and months, legal and technical issues related to use of facial recognition systems in the United States have received national attention, including concerns that the technology lacks accuracy in identifying non-white individuals and that its widespread use by police departments may play a role in racially discriminatory policing. Privacy considerations will play a key role in the ongoing debate over the future of facial recognition technology. Facial recognition systems (FRS) are automated or semi-automated technologies that analyze an individual’s features by extracting facial patterns from video or still images. FRS use attributes or features of an individual’s face to create data that can be used for the unique personal identification of a specific individual. FRS use has grown exponentially in recent years. In addition to widespread adoption by law enforcement agencies, FRS are also frequently used in retail, banking and security sectors,...

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COVID-19 Causing a Surge in E-Commerce—Is Your Website Accessible?

Stay-at-home orders and business closures during the Coronavirus (COVID-19) pandemic have led to a sharp increase in online shopping. While e-commerce has helped businesses stay afloat during this challenging economic time, there has also been a spike in litigation alleging that certain websites are not accessible to individuals with disabilities. In an article for Bloomberg Law, Jeremy White, Matthew Cin and Brian Long review the legal landscape governing accessibility of websites – including specific rules that apply to the healthcare industry, and explore best practices for companies to mitigate their risk of facing a website accessibility lawsuit. Click here to read the full article.

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Future Forward: Data Arrangements During and After COVID-19

The need for speedy and more complete access to data is instrumental for healthcare providers, researchers, pharmaceutical, biotech and device companies and public health authorities as they work to quickly identify infection rates, disease trends, outcomes, including antibodies, and opportunities for treatments and vaccines for COVID-19. A variety of data sharing and collaborations have emerged in the wake of this crisis, such as: Requests and mandates by public health authorities, either directly or via providers’ business associates requesting real time information on infections and bed and equipment availability Data sharing collaborations among providers for planning, anticipating and tracking COVID-19 caseloads Data sharing among providers, professional societies and pharmaceutical, biotech and medical device companies in search of testing options, treatment and vaccine solutions, and evaluation of co-morbidities CLICK HERE TO VIEW THE FULL...

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More Than a Decade at the Top; McDermott Earns 11th Chambers USA Band 1 Healthcare Practice National Ranking

We are pleased to announce that our Healthcare Group received a national Band 1 ranking for the eleventh year in a row in the 2020 edition of Chambers USA. After more than a decade at the top, we are once again the only one to rank Band 1 nationally. The Health team also earned Band 1 state-level rankings for its healthcare practices in California, Florida, Illinois, Massachusetts and Washington, DC. Additionally, the team also earned the national Spotlight Table ranking for the Privacy and Data Security: Healthcare category. In addition, nearly half of the Healthcare Industry Advisory group partners were individually ranked. Click here to view the full announcement.

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Florida’s Extension of its COVID-19 Out-of-State Provider Waiver: A Sign of the Times

Background: Issuing Florida's Emergency Order On March 16, 2020, Florida Surgeon General Dr. Scott Rivkees signed, stamped and finalized Emergency Order 20-002. In doing so, Florida joined what would become the vast majority of states in modifying licensure requirements for physicians in response to the Coronavirus (COVID-19) emergency. The surgeon general’s order waived licensing requirements for out-of-state healthcare professionals, advanced life support professionals and basic life support professionals so that they could render services in Florida for the purposes of preparing for, responding to and mitigating any effect of COVID-19. In addition to waiving licensing requirements for in-person services, the order exempted out-of-state physicians, osteopathic physicians, physician assistants and advanced practice registered nurses from licensing requirements governing the provision of telehealth. The order also impacted emergency medical services training...

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$200 Million of Funding for COVID-19 Telehealth Program

On April 2, 2020, the Federal Communications Commission (FCC) launched the $200 million Coronavirus (COVID-19) Telehealth Program contemplated in the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The Telehealth Program is distinguishable from the broader Connected Care Pilot Program, which will make an additional $100 million in federal universal service funds available for telehealth over the next three years. Telehealth Program Notwithstanding telehealth’s advantages, most low-income Americans are unable to utilize telehealth services due to their lack of consistent, broadband internet connection. Furthermore, some providers are limited in their ability to treat patients via telehealth due to the substantial financial and IT investment in developing connected care programs (e.g., purchase of remote patient monitoring devices, telehealth software platforms). The purpose of the Telehealth Program is to support healthcare providers in urban and...

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Avoiding Confusion Over State Licensing Laws as CMS Further Loosens Telemedicine Restrictions

The Centers for Medicare & Medicaid Services (CMS) continues to loosen the conditions for participation in Medicare, as well as specific reimbursement requirements, to ensure facilities and practitioners are able to practice at the top of their license and across state lines without jeopardizing Medicare reimbursement. Unfortunately, as demonstrated when CMS took similar actions over the past few weeks in response to the Coronavirus (COVID-19) pandemic, headlines tend to overlook one fundamental component of the applicable regulatory regime: state law requirements. Unlike the Veterans Affairs Administration’s (VA's) action a few years ago, which preempted state licensing law for purposes of implementing a VA telemedicine program, the Department of Health and Human Services has limited its actions during the COVID-19 pandemic to modifications of federal regulations and rules.  Secretary Alex Azar, in a letter to the Governors, instead encouraged the states...

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