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New Proposed CCPA Regulations Add Clarity to Process for Opting Out of Sale of Personal Information

On October 12, 2020, the California Department of Justice announced the release of a new, third set of proposed modifications to the California Consumer Privacy Act (CCPA) regulations. The proposed modifications amend a final set of regulations that were approved by the California Office of Administrative Law just two months earlier.

The Third Set of Proposed Modifications to the CCPA Regulations released on October 12 do not make substantial changes to the previously final set of CCPA regulations. The majority of the proposed modifications serve to clarify existing requirements rather than add new requirements or materially alter existing ones. As a result, the new proposed modifications should help businesses better understand what is expected to maintain compliance with certain aspects of the CCPA.

Process for Opting Out of Sale of Personal Information

The Department of Justice proposed to amend Sections 999.306(b)(3) and 999.315(h) to provide more detail about how a business should provide the right to opt out of the sale of personal information. Specifically, the Department of Justice:

  • Provides illustrative examples of how a business that collects personal information offline can provide its opt-out notice offline—through paper forms, posting signage directing consumers to an online notice or orally over the phone.
  • Makes clear that the methods for submitting opt-out requests should be easy for consumers to find and execute. For example, consumers should not have to search or scroll to find where to submit a request to opt out after clicking on the “Do Not Sell My Personal Information” link. A business should not use confusing language, try to impair a consumer’s choice to opt out or require a consumer to read through or listen to reasons why they should not opt out before confirming their request. In addition, the process for requesting to opt out shall collect only the amount of personal information necessary to execute the request.
Verifying Authorized Agent

The Department of Justice added language to Section 999.326(a) clarifying what a business may request to verify that an agent is authorized to act on a consumer’s behalf. Specifically, a business may require an authorized agent to provide proof of signed permission from the consumer for the agent to submit the request. In addition, the business may require the consumer to either verify their own identity directly with the business or directly confirm with the business that they provided the authorized agent permission to submit the request. Previously, a business had to go through the consumer to verify the authorized agent. Now, a business can verify the authorized agent directly.

Notices to Consumers Under 16 Years of Age

Finally, the Department of Justice clarified in Section 999.332(a) that all businesses that sell personal information about children must describe in their privacy policies the processes used to obtain consent from the child or parent (as applicable). Previously, the regulations were worded such that only a business that sells the personal information of both consumers under 13 and consumers between 13 [...]

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National Telehealth Takedown Highlights Opportunity for Providers to Enhance Compliance Efforts

The US Department of Justice and the US Department of Health and Human Services Office of Inspector General recently announced a significant healthcare fraud takedown involving $4.5 billion in allegedly false and fraudulent claims involving telehealth. The allegations involved telehealth executives paying healthcare providers to order unnecessary items and services, as well as payments from durable medical equipment companies, laboratories and pharmacies for those orders. While the alleged conduct is not representative of the legitimate and crucial telehealth services offered by the vast majority of healthcare providers, the government’s continued focus on telehealth arrangements, combined with the ongoing expansion of coverage for telehealth services, provides an important opportunity for healthcare providers to evaluate their telehealth service offerings and arrangements and to further enhance their related compliance activities.

In Depth

On September 30, 2020, the US Department of Justice (DOJ) issued a press release describing the largest national healthcare fraud and opioid enforcement action in the DOJ’s history (the Takedown). The Takedown involved coordination with the US Department of Health and Human Services Office of Inspector General (OIG) and other federal and state law enforcement agencies, and resulted in cases against more than 345 defendants in 51 judicial districts. The government charged the defendants with participating in healthcare fraud schemes involving more than $6 billion in alleged losses to federal health care programs, with the vast majority of alleged losses ($4.5 billion) stemming from arrangements involving alleged “telefraud.”

According to the DOJ press release, a recently announced National Rapid Response Strike Force led the initiative focused on telehealth. The National Rapid Response Strike Force is part of the Health Care Fraud Unit of DOJ’s Criminal Division Fraud section, and its mission is to “investigate and prosecute fraud cases involving major health care providers that operate in multiple jurisdictions, including major regional health care providers operating in the Criminal-Division-led Health Care Fraud Strike Forces throughout the United States.”

Background

In recent years, the government has increasingly focused on alleged healthcare fraud schemes involving telehealth services. In connection with the Takedown, OIG issued a fact sheet and graphic highlighting the increase in “telefraud” arrangements leveraging “aggressive marketing and so-called telehealth services.” The individuals charged in the Takedown included telehealth company executives, medical providers, marketers and business owners who allegedly used telemarketing calls, direct mail, and television and internet advertisements to collect information from unsuspecting patients.

Many of the cases involved telehealth executives who allegedly paid healthcare providers to order unnecessary durable medical equipment (DME), genetic and other diagnostic testing, and medications, either without any patient interaction or with only a brief phone call. The government alleged that the arrangements involved kickbacks to telehealth executives after the DME company, laboratory or pharmacy billed Medicare or Medicaid for items and services that the government asserts were often not provided to beneficiaries or were “worthless to patients . . . and delayed their chance to seek appropriate treatment for medical complaints.”

DOJ provided a [...]

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After the Curve Podcast: Focus on Digital Health

COVID-19 has demanded a rapid shift in the world of telehealth and digital health, resulting in a global embracing of a telehealth and digital health system that is not yet fully developed. On this episode of the McDermott Health podcast, our digital health partners have joined to discuss the future of telehealth and use of digital tools to speed up care delivery and to improve outcomes in the wake of COVID-19, as well as the vital role of data readiness in reshaping the healthcare system. McDermott’s Chief Marketing Officer Leslie Tullio is joined by partners Stephen Bernstein and Lisa Mazur to examine current trends and potential changes to both telehealth as well as the broader digital health landscape, including:

  • The most impactful regulatory telehealth changes that have resulted from COVID-19
  • A look beyond telehealth to a paradigm shift in the broader digital health landscape
  • The impact that a more refined data exchange pathway could have on treatment during the next wave of COVID-19 or future pandemics
  • Meaningful collaborations that are currently happening in the digital health space
  • A look at innovations that are emerging from the demands of post-COVID-19 healthcare
  • Legal and regulatory compliance steps that still need to be taken to allow these telehealth programs to continue in the future

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Brazil’s LGPD Takes Effect—With Early Enforcement

Brazil represents over half of all IT spend in Latin America, has the largest regional market for software outsourcing, employs a sizable IT workforce, manufactures consumer goods (including commercial airplanes and cars) and has an active consumer market of social media operated by global data aggregators. At a time when data privacy is becoming increasingly important to consumers, it seems only fitting that Brazil would adopt comprehensive privacy legislation to protect data privacy rights.

The General Data Protection Law, the first law of its kind in Brazil, is now in effect, and we are already seeing enforcement. Streamlining the legal framework on data protection, the law sets forth a number of requirements addressing legal bases for processing, individual rights, governance and accountability and data transfers.

Access the article.




Digital Health at Scale: The Payor Perspective

The COVID-19 pandemic has catalyzed efforts by health insurers to expand reimbursement for telehealth services and digital health tools, and develop and invest in their own digital health technology. Health insurers, who increasingly play a hybrid role of payor, innovator and provider, have a vested interest in helping consumers manage chronic diseases and engage in preventive care from home, both during the public health emergency and after.

Joined by leaders from Humana, Oscar, and Medorion, we discussed the role of health insurers in the evolving digital health market, reimbursement pathways for digital tools and innovative partnerships between technology companies and health insurers. Click here to listen to the webinar recording, and read on for highlights from the program.

PROGRAM INSIGHTS

  • COVID-19 has accelerated the integration of digital health into the traditional health insurance framework. Pre-COVID-19, health insurers were using digital health tools to help their members find providers, access care and manage health conditions. COVID-19 has hastened health plans’ efforts toward vertical integration of digital health technology. Health insurers at the forefront of this effort are focused on creating a consumer-centric, digitally enabled and fully integrated healthcare ecosystem to enhance the member experience, bend the cost curve and carve out an essential (and expanded) role for themselves in the future of healthcare. As consumer behavior continues to change as a result of COVID-19, health insurers will have to be responsive to the way their members are getting care and interacting with the healthcare system.
  • Health insurers are uniquely situated to leverage digital health technologies. Data-driven technology is only as good as the data behind it. Due to the critical role health insurers play in paying for healthcare services, they have insight into member patterns of care and utilization that can be used to target interventions, influence member decision-making and improve health. Investments in digital tools and analytics, as well as strategic partnerships with technology companies, will allow for increased leverage of this valuable data, improved integration of member health information and enhanced member engagement.
  • Interoperability with existing health IT systems is crucial to break down barriers to digital health implementation. Healthcare has been grappling with data interoperability challenges for decades. To scale and make the information from digital tools actionable as part of a larger care plan, digital health platforms must also be interoperable with existing health IT systems. Interoperability will also allow insurers to gather a more complete picture of a member’s longitudinal health data and enable them to better support member health.
  • Health insurers and their legal teams will need to remain nimble amidst the rapidly changing regulatory environment. Keeping up with changing regulations during the COVID-19 public health emergency while planning to scale up in terms of technology implementations is a delicate balance. Though federal, state and local agencies appreciate that digital health tools and telemedicine have much potential in terms of patient care, health insurance companies remain vigilant of privacy and security risks and continue to be constrained in their [...]

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Remote Care Providers Await Final New Jersey Registration and Reporting Regulations

In 2017, the New Jersey legislature passed the New Jersey Telehealth and Telemedicine Act (codified at N.J.S.A. 45:1-61 et seq.), which established registration and reporting requirements for “telemedicine and telehealth organizations.” After a multi-year wait for details regarding the registration process, the New Jersey Department of Health (NJ DOH) published a proposed rule in April 2020 that brought providers of telehealth services in New Jersey one step closer to the implementation and enforcement of the registration requirements. A final rule is expected by April 2021.

New Jersey providers are also expecting the publication of a proposed rule detailing the reporting requirements for registered organizations. While the coronavirus (COVID-19) public health emergency has led many states to implement waivers and other measures to allow for the expansion of remote healthcare services within their states, telehealth and telemedicine organizations operating in New Jersey should prepare to comply with additional requirements and the outlay of annual registration fees if the state finalizes the registration requirements as proposed.

Background: The 2017 Telemedicine and Telehealth Act

For purposes of the Act, a “telemedicine or telehealth organization” is defined as a corporate entity “that is organized for the primary purpose of administering services in furtherance of telemedicine or telehealth.” The Act differentiates telemedicine from telehealth: “telehealth” is the use of information and communications technologies (including telephones, remote patient monitoring devices or other electronic means) to support clinical healthcare, provider consultation, patient and professional health-related education, public health, health administration and other services, whereas “telemedicine” is the delivery of healthcare services using electronic or technological means (not including the use, in isolation, of audio-only telephone, electronic mail, instant messaging, phone text or facsimile transmission) to “bridge the gap” between a healthcare provider located at a distant site and a patient located at an originating site.

In addition to establishing requirements for providers’ use of telemedicine and telehealth, the Act requires telemedicine or telehealth organizations to register with the NJ DOH annually, and to submit annual reports to the NJ DOH that include data elements established by the NJ DOH commissioner and, at a minimum, the following de-identified encounter data:

  • The total number of telemedicine and telehealth encounters conducted
  • The type of technology utilized to provide services using telemedicine or telehealth
  • The category of medical condition for which services were sought
  • The geographic region of the patient and the provider
  • The patient’s age and sex
  • Any prescriptions issued.

The Act did not establish any enforcement mechanism for the registration and reporting requirements, and because the NJ DOH has not yet implemented criteria for registering or reporting, New Jersey providers of remote health services have generally operated without regard to these statutory requirements.

Implementation of the Registration Requirement

The April 2020 proposed rule would implement the registration requirement for telemedicine or telehealth organizations and establish enforcement mechanisms available to the NJ DOH against any telemedicine or telehealth organization that fails to comply.

The proposed rule would require telemedicine and telehealth organizations to register with the NJ DOH [...]

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CMS Takes a Preliminary Step to Make Certain COVID-19 Waivers Permanent

On August 4, 2020, the Centers for Medicare and Medicaid Services (CMS) released a proposed rule to update its payment policies under the Medicare Physician Fee Schedule (PFS) for calendar year 2021. The proposed rule was issued in tandem with a presidential executive order, which directed the Secretary of the US Department of Health and Human Services (HHS) to propose regulations expanding telehealth services covered by Medicare. CMS stated that the proposed rule “is one of several proposed rules that reflect a broader Administration-wide strategy to create a health care system that results in better accessibility, quality, affordability, empowerment, and innovation.”

In response to the coronavirus (COVID-19) public health emergency (PHE), CMS has issued several temporary waivers and flexibilities that expand telehealth reimbursement under Medicare, Medicaid and the Children’s Health Insurance Program for the duration of the COVID-19 PHE. CMS issued these waivers under authorities granted pursuant to HHS’s public health declaration, as well as legislation passed in response to the pandemic. Many of these waivers have substantially altered the Medicare telehealth reimbursement landscape and, as we detailed in our prior On the Subject, many can be made permanent via regulatory action. The proposed rule represents the first official word that CMS will take such action to make certain of its waivers permanent. These policy changes have the potential to greatly increase the availability of telehealth to Medicare beneficiaries around the country.

CMS will accept comments, either electronically or by mail, on the proposed rule until 5 pm EDT on October 5, 2020.

Changes to Medicare Telehealth Services

CMS proposed to add several services, listed below, to its list of services that may be delivered via telehealth. Many of these were previously added on an interim final rule basis for the duration of the PHE. The proposed rule would keep them on the Medicare telehealth services list even after the PHE ends.

CMS also proposed a new method for adding or deleting services from the Medicare telehealth services list. Currently, CMS evaluates new services for inclusion based on two categories: Category 1 is for services that are similar to professional consultations, office visits and office psychiatry visits that are already on the Medicare telehealth services list, while Category 2 is for services that are not similar to those already on the list, but that would still be appropriate to include because the service is accurately described by the corresponding code when delivered via telehealth and providing the service via a telecommunications system results in clinical benefit for the patient. Because of the COVID-19 PHE, CMS has proposed to add a Category 3, which would include services that would be temporarily on the Medicare telehealth services list. CMS proposed this third category because, while CMS currently has the authority to waive or modify Medicare telehealth payment requirements during the PHE, that authority will expire once the PHE [...]

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TREATS Act Aims to Expand Use of Telehealth to Treat Substance Use Disorder

A bipartisan pair of US senators have proposed legislation that would allow certain controlled substances to be prescribed via an initial telehealth encounter and—under certain conditions—expand Medicare reimbursement of audio-only substance use disorder treatment services. The proposed TREATS Act has been referred to the Senate Committee on Health, Education, Labor, and Pensions, and could significantly reduce the regulatory burdens associated with the remote prescribing of controlled substances.

For more than a decade, healthcare providers in the United States have been largely prohibited from prescribing controlled substances via telehealth without having previously performed an in-person medical evaluation of the patient. Although Congress created the framework for a “special registration” pathway that has the potential to more broadly permit the practice, the Drug Enforcement Administration (DEA) has not issued regulations to implement it. This has been a significant roadblock for the treatment of substance use disorder, which is often treated with controlled substances. Recently, Senators Rob Portman (R-OH) and Sheldon Whitehouse (D-RI) proposed the Telehealth Response for E-prescribing Addiction Therapy Services Act (the TREATS Act), which would allow certain controlled substances to be prescribed via telehealth. The TREATS Act also proposes to expand Medicare reimbursement of audio-only substance use disorder treatment services, if certain conditions are met. The TREATS Act was introduced on June 30, 2020, and has been referred to the Committee on Health, Education, Labor, and Pensions.

Remote Prescribing of Schedules III and IV Controlled Substances

The remote prescribing of controlled substances has been stymied by the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (the Ryan Haight Act), which typically requires providers to perform an in-person medical evaluation of the patient prior to prescribing controlled substances. The Ryan Haight Act does incorporate seven pathways by which practitioners can prescribe controlled substances via telemedicine without a prior in-person examination, but these exceptions are extremely narrow and it is difficult for most providers to meet their requirements. One of the pathways, however, called for a “special registration process” that had the potential to more broadly permit providers to prescribe controlled substances via telemedicine. Congress left the implementation of the special registration process up to the DEA—and the DEA never issued regulations to implement it. After ten years of silence, Congress again pushed the DEA to act, imposing a second deadline for the DEA to implement regulations regarding the special registration process by October 24, 2019, under the SUPPORT for Patients and Communities Act. While there were rumblings that the DEA was prepared to act in late 2019, it is still yet to issue a proposed rule regarding the special registration process.

As we explained in a prior On the Subject, the COVID-19 public health emergency ushered in a significant, albeit temporary, change to the Ryan Haight Act, permitting providers to prescribe controlled substances via telehealth without a prior in-person medical evaluation during the pendency of the public health emergency declared [...]

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Digital Delivery of Healthcare Services After COVID-19

The idea of keeping people healthy at home has become more relevant than ever during the COVID-19 public health emergency. The expansion of telemedicine during the pandemic is expected to serve as a catalyst that will permanently change the way providers deliver care and patients engage with their health. Joined by leaders from Cricket Health, Livongo and BehaVR, we discussed factors driving the shift towards expanding digital delivery of healthcare services and the challenges – technological, regulatory and cultural – that impact such expansion. Click here to listen to the webinar recording, and read on for highlights from the program.

To learn more about the “Around the Corner” webinar series and attend an upcoming program, click here.

Audience Perspective

This poll shows that 40% of digital health consider regulatory obstacles to be their biggest challenge.

Program Insights

  • A redoubled focus on preventative care will be key to bring about effective digital health delivery. The current US healthcare delivery system, built mainly on reimbursable, episodic care, is consistently indicted for being a “sick care” system, not a “healthcare” system. Patients, especially patients with chronic healthcare conditions such as diabetes, hypertension, behavioral health and acute kidney disease, need constant, real-time support and guidance, and need their providers to have access to accurate, actionable information to manage these conditions between real-time encounters. Digital health will play a vital role in this effort.
  • New care modalities open the door to structural changes, which will need to keep pace with the healthcare system. How emerging care modalities are integrated into and affect the healthcare system are still in development, and raise a variety of concerns, from staffing and technology needs to privacy safeguards. As the healthcare system adapts to these changes, the regulations that govern care delivery, licensing, and accreditation will need to adjust as well.
  • Positive regulatory changes have been implemented during the pendency of the national pandemic emergency, but those or similar regulatory changes must continue, and gain momentum and reach, for lasting changes to occur. The actions taken by regulators during the COVID-19 public health emergency show that the government can swiftly respond to new ideas and paths to care. However, these actions are temporary, and it will take time to implement lasting change. While there is an appetite to make some common-sense changes permanent, other areas, such as multi-state professional licensing, will likely take more time due to their complexity.
  • Reimbursement models based around episodic care are a major hurdle to the adoption of on-going remote monitoring and other digital health tools. Panelists agreed that when reimbursement structures are aligned with value-based care, such that providers are reimbursed for the outcomes and on-going care management they provide, digital health tools become a critical part of the provider’s toolbox. In the meantime, [...]

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Around the Corner: The Future Of Telehealth After COVID-19

Prior to the pandemic, health providers and stakeholders were quickly moving to develop and expand existing telehealth programs. Now we are seeing an adoption of telehealth solutions that far surpasses all of the activity we saw in the past five years combined.

Joined by leaders from BDO, Babylon Health, Crossover Health and the Illinois Bone & Joint Institute, we discussed what the future of digital provider/patient engagement may look like after COVID-19 and the legal factors that influence implementation. Telehealth is the new normal and there is no turning back.

Bar graph with poll results.

PROGRAM INSIGHTS

  • There is now recognition that telehealth can, in fact, replace in-person visits in many situations. Patients and healthcare providers have quickly turned to telehealth to provide care for existing and new healthcare conditions during the pandemic. This increase in use has provided additional data demonstrating the value of telehealth. In addition to telehealth visits, patients are looking to patient care navigators and wellness advisors for basic healthcare information that can empower them to manage their healthcare needs before seeking treatment from a licensed healthcare professional.
  • The regulation of telehealth on a state-by-state basis is an ongoing hindrance to telehealth providers in the United States. While the state waivers on professional licensure and care delivery during the COVID-19 public health emergency have temporarily lowered some of these barriers, these waivers have or will soon expire in many states, once again leaving telehealth providers with the burden of developing complex compliance strategies that differ from state to state.
  • For telehealth to achieve its full potential, it needs to be freed from the constraints that apply to in-person episodic care. In doing so, remote monitoring can meaningfully engage patients in real time to actively manage care on an ongoing basis, without interruptions or the need for a pre-scheduled visit.
  • The COVID-19 pandemic is digital health adrenaline – forcing people rapidly and without warning to pivot to telehealth. But when technology works well and effectively, demand will persist well beyond the catalyzing event. If patients receive superior quality care through digital technologies and superior convenience, this improved experience will force the traditional healthcare delivery process to continue its changed approach.
  • The healthcare transactional business model is a challenge that holds back widespread adoption of telehealth. Now that lawmakers have data that demonstrates the value of telehealth, reimbursement codes for different delivery modalities will need to be reevaluated. This reevaluation will future catalyze greater adoption of telehealth by providers as payments will align more appropriately with the services delivered.

For a deeper dive into these topics, please listen to our webinar recording, available here.




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