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National Roadmap for Health Data Sharing: FTC Advocates Preservation of Privacy and Competition

On April 1, 2015, the Office of the National Coordinator for Health Information Technology (ONC), which assists with the coordination of federal policy on data sharing objectives and standards, issued its Shared Nationwide Interoperability Roadmap and requested comments.  The Roadmap seeks to lay out a framework for developing and implementing interoperable health information systems that will allow for the freer flow of health-related data by and among providers and patients.  The use of technology to capture and understand health-related information and the strategic sharing of information between health industry stakeholders and its use is widely recognized as critical to support patient engagement, improve quality outcomes and lower health care costs.

On April 3, 2015, the Federal Trade Commission issued coordinated comments from its Office of Policy Planning, Bureau of Competition, Bureau of Consumer Protection and Bureau of Economics.  The FTC has a broad, dual mission to protect consumers and promote competition, in part, by preventing business practices that are anticompetitive or deceptive or unfair to consumers.  This includes business practices that relate to consumer privacy and data security.  Notably, the FTC’s comments on the Roadmap draw from both its pro-competitive experience and its privacy and security protection perspective, and therefore offer insights into the FTC’s assessment of interoperability from a variety of consumer protection vantage points.

The FTC agreed that ONC’s Roadmap has the potential to benefit both patients and providers by “facilitating innovation and fostering competition in health IT and health care services markets” – lowering health care costs, improving population health management and empowering consumers through easier access to their personal information.  The concepts advanced in the Roadmap, however, if not carefully implemented, can also have a negative effect on competition for health care technology services.  The FTC comments are intended to guide ONC’s implementation with respect to: (1) creating a business and regulatory environment that encourages interoperability, (2) shared governance mechanisms that enable interoperability, and (3) advancing technical standards.

Taking each of these aspects in turn, creating a business and regulatory environment that encourages interoperability is important because, if left unattended, the marketplace may be resistant to interoperability.  For example, health care providers may resist interoperability because it would make switching providers easier and IT vendors may see interoperability as a threat to customer-allegiance.  The FTC suggests that the federal government, as a major payer, work to align economic incentives to create greater demand among providers for interoperability.

With respect to shared governance mechanisms, the FTC notes that coordinated efforts among competitors may have the effect of suppressing competition.  The FTC identifies several examples of anticompetitive conduct in standard setting efforts for ONC’s consideration as it considers how to implement the Roadmap.

Finally, in advancing core technical standards, the FTC advised ONC to consider how standardization could affect competition by (1) limiting competition between technologies, (2) facilitating customer lock-in, (3) reducing competition between standards, and (4) impacting the method for selecting standards.

As part of its mission to protect consumers, the FTC focuses its privacy and security [...]

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In with the New: 2015 Privacy, Advertising and Digital Media Predictions – Part I

What privacy, advertising and digital media trends will make headlines in 2015?  Digital Health for one,  Big Data for another.

Digital Health

The 2015 International Consumer Electronics Show (CES) started yesterday.  Sessions like “Sensibles: The Smarter Side of Wearables” and “DIY Health: Consumer Accessible Innovation” suggest that the consumer health issues explored by the Federal Trade Commission (FTC) last Spring (see our blog post here) are increasingly relevant.  Most notably, as more health-related information becomes digital, digital health businesses will need to revisit long-standing privacy, intellectual property protection, notice and consent practices that may not be well-suited to the more sensitive category of consumer-generated health information (CHI) (i.e., health-related information that consumers submit to or through mobile apps and devices).  In many cases, the law is underdeveloped and businesses must develop and implement their own best practices to demonstrate good faith as stewards of CHI.

We predict that CHI and the issues raised by its collection, use, disclosure and storage will stay on the FTC’s radar during 2015.  Perhaps the FTC will offer some insight about its position on CHI through guidance or regulatory activity related to a digital health business.

With mobile devices proliferating, the volume, versatility and variety of consumer-generated data, including CHI, also is proliferating.  CHI typically stands outside of HIPAA’s regulatory silo.  HIPAA regulates health plans, health care clearinghouses, health care providers who engage in standardized transactions with health plans and the business associates that assist health plans, clearinghouses and providers, and need protected health information to provide that assistance.   Mobile medical services and environments, however, typically fall outside of this framework: most mobile apps, for example, are used directly by consumers, and often at the direction of and under the control of plans and providers.  HIPAA may have, however, more reach into the growing business-to-business mobile app sector.

But, in the CHI arena, the sources of privacy and security regulation are murky.  Among likely hot topics in 2015 are:

  • When is consumer-generated information also consumer-generated health information?
  • Can data ever be “de-identified” or made anonymous in light of the so-called mosaic (or pointillist) effect?
  • What role can the “pay with data” model play in consumer protection?
  • Is all CHI deserving of the same level of protection?
  • What sources of oversight exist and are they sufficient?

The news is ripe with references to data “privacy” and data “security,” but the sensitivity associated with health information requires thinking about data “stewardship” – a broader concept that encompasses not only privacy and security but also data asset management and data governance.  Data stewardship captures not only data as an asset, but also as an opportunity to earn public trust and confidence while preserving innovation. 

We predict that how to be good data stewards will be a critical issue for digital health businesses in 2015 and that forward-looking and transparent efforts at self-policing will be key to not only avoiding regulatory scrutiny but also fostering consumer trust.

Big Data

Big Data was big news [...]

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Thinking Outside the HIPAA Box

On Wednesday, May 7, the Federal Trade Commission (FTC) held the third of its Spring Seminars on emerging consumer privacy issues.  This session focused on consumer-generated health information (CHI).  CHI is data generated by consumers’ use of the Internet and mobile apps that relates to an individual’s health.  The “H” in CHI defies easy definition but likely includes, at minimum, data generated from internet or mobile app activity related to seeking information about specific conditions, disease/ medical condition management tools, support and shared experiences through online communities or tools for tracking diet, exercise or other lifestyle data.

In the United States, many consumers (mistakenly) believe that all of their health-related information is protected, at the federal level, by the Health Information Portability and Accountability Act (HIPAA).  HIPAA does offer broad privacy protections to health-related information, but only to identifiable health information received by or on behalf of a “covered entity” or a third party working for a covered entity.  Covered entities are, essentially, health plans and health care providers who engage in reimbursement transactions with health plans (referred to as “Protected Health Information” or “PHI”). When HIPAA was enacted in 1996, PHI was the primary type of health information, but CHI, which is generally not also PHI, has changed that.  As FTC Commissioner Julie Brill noted her in her opening remarks, CHI is “health data stored outside the HIPAA silo.”

Without the limitations imposed by HIPAA, online service providers and mobile apps generally (except where state law requires differently) can treat CHI like other digital non-health data that they collect from consumers.  As a result, the FTC expressed concerned that CHI may be aggregated, shared and linked in ways that consumers did not foresee and may not understand.

The panelists at the FTC discussed the difficulty in defining CHI, and whether and how it is different from other kinds of data collected from consumers.  One panelist noted that whether a consumer considers his or her CHI sensitive is highly individualized.  For example, are the heart rate and exercise data collected by mobile fitness apps sensitive? Would the answer to this question change if these data points were linked with other data points that began to suggest other health or wellness indicators, just as weight?  Would the answer change if that linked data was used to predict socioeconomic status that is often linked to certain health, wellness and lifestyle indicators or used to inform risk rating or direct to consumer targeted advertising?

Panelists also discussed the larger and more general question of how to define privacy in a digital economy and how to balance privacy with the recognized benefits of data aggregation and data sharing.  These questions are compounded by the difficulty of describing data as being anonymized or de-identified – foundational principles in most privacy frameworks – because the quality of being “identifiable” in the digital economy may depend on the proximity of a piece of data to other pieces of data.

Though the “how” and “what” of additional [...]

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