Q&A: FTC motion on well being knowledge sharing may put digital well being ‘on discover’

The Federal Commerce Fee has began cracking down on digital well being firms for allegedly sharing customers’ well being knowledge for promoting functions. 

Final month, the company stated GoodRx had shared private well being info with third events like Google and Fb. The corporate, greatest recognized for its drug-cost transparency instruments, agreed to pay a $1.5 million superb to settle the case, however admitted no wrongdoing.

And simply yesterday, the FTC introduced a proposed order that might bar on-line remedy firm BetterHelp from disclosing well being knowledge for promoting, together with $7.8 million in funds to customers whose knowledge was shared. BetterHelp additionally admitted no wrongdoing, and famous that it had settled relating to alleged practices in place a number of years in the past. 

Scott Loughlin, a companion at Hogan Lovells who additionally leads the legislation agency’s world privateness and cybersecurity follow, sat down with MobiHealthNews to debate the company’s enforcement motion in opposition to GoodRx and what digital well being firms ought to be taught from the case.

Editor’s observe: This interview was performed earlier than the FTC introduced its proposed order relating to BetterHelp. 

MobiHealthNews: What had been a few of your massive takeaways from the FTC’s motion in opposition to GoodRx? In your transient, you known as it “groundbreaking.” What do you assume are among the most groundbreaking modifications right here?

Scott Loughlin: I feel there have been a number of issues that got here out of the proposed order that had been groundbreaking. The primary was the FTC went and deliberately tried to fill a gap that was created inside the HIPAA authorized panorama. HIPAA has a direct software to sure sorts of healthcare suppliers and healthcare plans, but it surely doesn’t cowl various organizations that function and course of delicate well being info.

And the OCR [Office for Civil Rights], which is the first regulator to implement HIPAA, would not have jurisdiction over various consumer-oriented healthcare organizations. So when OCR printed steering round how entities topic to HIPAA can deploy totally different monitoring applied sciences on their digital platforms, that would not have utilized to various organizations which have delicate info coming by their digital properties.

And the FTC, by the GoodRx resolution, closed that hole and made clear that from their perspective the identical sorts of requirements will apply, no matter whether or not you’re topic to HIPAA.

So the opposite factor that I feel was a extremely necessary improvement was that within the proposed order there have been various areas that the FTC has indicated goes to be anticipated of GoodRx on a go-forward foundation, together with the event and implementation of complete privateness controls.

These are the sorts of obligations which have been enforced prior to now with respect to safety instances by the FTC. And that is an space the place they’ve deployed among the similar sorts of treatments and the identical sorts of obligations that the FTC has utilized in safety instances, however now inside a privateness case.

That is a crucial improvement as a result of the obligations that they’ve required come from the whole lot from having to keep up a complete set of privateness insurance policies that might apply to their inner makes use of of information to the appointment of a person who was answerable for privateness compliance that might have a direct reporting relationship to the CEO, to taking place to having very particular privateness controls that might help GoodRx’s means of complying with its underlying privateness commitments.

MHN: Have been you shocked to see this enforcement motion by the FTC, which they stated was the primary occasion they’d enforced the Well being Breach Notification Rule? Do you assume that this was coming based mostly on earlier regulatory motion and information?

Loughlin: It is not shocking that the FTC went into this area. I feel for those who take a look at the order, there are two notable areas that they’ve enforced. The primary is their conventional Part 5 authority for regulating or prohibiting unfair or misleading commerce practices. That’s an space that the FTC has ceaselessly enforced.

And what’s notable right here is that they, for the primary time, enforced their Part 5 authority with respect to web-tracking for healthcare organizations. It is not a shock that that is an space that they’ve been trying into, due to the entire media consideration that has centered on the makes use of of those applied sciences by healthcare organizations.

Consumer Studies had issued an article about GoodRx particularly, after which The Markup [and STAT] had earlier final 12 months had recognized various healthcare suppliers who had used several types of monitoring on their digital properties. These had been the sorts of issues that the FTC could be involved about from an unfair or misleading commerce follow, particularly after they evaluate these practices in opposition to public statements that these firms have made. 

The second portion, which was across the Well being Breach Notification Rule, has by no means been enforced by the FTC. However it’s not a shock that they are doing that on this case. They’d launched a public assertion indicating that they’ve obtained only a few reviews of breaches below the Well being Breach Notification Rule, and that they suspected that there was underreporting.

In order that they had been successfully reminding the well being neighborhood or the neighborhood that is topic to those guidelines that they wished to obtain these reviews when required. I feel this specific case, whereas it may have gone ahead solely below Part 5, they’ve used this chance to actually drive dwelling the message that they’re critical about organizations reporting below the Well being Breach Notification Rule.

MHN: What do you assume that different digital well being firms or shopper well being firms ought to take from this resolution going ahead?

Loughlin: One, be very cautious about what it’s that you’re telling your customers and particularly how you’re utilizing and disclosing their well being info. Do not consider well being info narrowly. On this case, the truth that a person was in search of care or in search of companies from a digital well being platform itself might be health-related info. So ensure that your disclosures match your practices. 

Second, watch out of how you’re utilizing monitoring expertise so that you simply’re utilizing that intentionally. I am seeing various examples, and the GoodRx resolution underscores that there are totally different teams inside organizations who’re answerable for deploying monitoring applied sciences. And people teams are totally different from authorized and compliance.

The FTC order requires GoodRx to implement a governance construction, in order that choices regarding the makes use of of monitoring applied sciences would undergo a standard sort of authorized or compliance overview. And that is one thing that’s now going to be a part of a regular working process.

I feel the third factor is to actually scrutinize your promoting and advertising practices which are based mostly on delicate info. On this case, GoodRx was accused of getting used delicate info to focus on people with several types of promoting, several types of medicine and pharmaceutical merchandise.

And the FTC has stated you can not promote or goal people utilizing delicate info with out their prior consent. And consequently, that is a crucial follow for digital well being organizations to be excited about implementing of their practices.

MHN: Do you assume we’ll see extra FTC enforcement like this?

Loughlin: Sure, I feel that the FTC will proceed to be actually engaged on this. The FTC doesn’t sometimes situation guidelines and rules. As an alternative, they usually will put out steering. After which they will help that steering by particular sorts of enforcement actions, virtually creating a standard legislation of FTC enforcement, which places the neighborhood on discover that that is the expectation round commerce practices that would not be thought-about unfair or misleading. 

So I feel there’s more likely to be a time the place organizations are left to drag their enterprise practices to be extra according to the GoodRx set of expectations. However very like the FTC has finished with safety instances, in the event that they repeatedly see habits that they assume runs afoul of the ideas that they set out in GoodRx, you will probably see extra enforcement.