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 corporations for allegedly sharing shoppers’ well being knowledge for promoting functions. 

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

And simply yesterday, the FTC introduced a proposed order that will bar on-line remedy firm BetterHelp from disclosing well being knowledge for promoting, together with $7.8 million in funds to shoppers 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 associate at Hogan Lovells who additionally leads the regulation agency’s world privateness and cybersecurity observe, sat down with MobiHealthNews to debate the company’s enforcement motion in opposition to GoodRx and what digital well being corporations ought to be taught from the case.

Editor’s be aware: This interview was carried out earlier than the FTC introduced its proposed order relating to BetterHelp. 

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

Scott Loughlin: I believe 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, however it doesn’t cowl a variety of 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, does not have jurisdiction over a variety of consumer-oriented healthcare organizations. So when OCR printed steerage round how entities topic to HIPAA can deploy completely different monitoring applied sciences on their digital platforms, that would not have utilized to a variety of organizations which have delicate info coming via their digital properties.

And the FTC, via the GoodRx determination, 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 believe was a very essential growth was that within the proposed order there have been a variety of 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 were enforced up to now with respect to safety circumstances by the FTC. And that is an space the place they’ve deployed a number of the similar sorts of treatments and the identical sorts of obligations that the FTC has utilized in safety circumstances, however now inside a privateness case.

That is a vital growth as a result of the obligations that they’ve required come from all the things from having to take care of a complete set of privateness insurance policies that will apply to their inside makes use of of information to the appointment of a person who was answerable for privateness compliance that will have a direct reporting relationship to the CEO, to taking place to having very particular privateness controls that will assist GoodRx’s skill of complying with its underlying privateness commitments.

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

Loughlin: It isn’t shocking that the FTC went into this house. I believe in the event you 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 incessantly 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 isn’t a shock that that is an space that they’ve been trying into, due to all the media consideration that has centered on the makes use of of those applied sciences by healthcare organizations.

Consumer Experiences had issued an article about GoodRx particularly, after which The Markup [and STAT] had earlier final yr had recognized a variety of healthcare suppliers who had used various kinds of monitoring on their digital properties. These had been the sorts of issues that the FTC can be involved about from an unfair or misleading commerce observe, particularly after they examine these practices in opposition to public statements that these corporations have made. 

The second portion, which was across the Well being Breach Notification Rule, has by no means been enforced by the FTC. But it surely’s not a shock that they are doing that on this case. They’d launched a public assertion indicating that they’ve acquired only a few experiences 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 experiences when required. I believe this explicit case, whereas it may have gone ahead solely below Part 5, they’ve used this chance to actually drive house the message that they’re severe about organizations reporting below the Well being Breach Notification Rule.

MHN: What do you assume that different digital well being corporations or shopper well being corporations ought to take from this determination 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 searching for care or searching for providers from a digital well being platform itself could possibly be health-related info. So ensure that your disclosures match your practices. 

Second, watch out of how you’re utilizing monitoring know-how so that you simply’re utilizing that intentionally. I am seeing a variety of examples, and the GoodRx determination underscores that there are completely different teams inside organizations who’re answerable for deploying monitoring applied sciences. And people teams are completely 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 evaluation. And that is one thing that’s now going to be a part of a regular working process.

I believe the third factor is to actually scrutinize your promoting and advertising and marketing practices which can be primarily based on delicate info. On this case, GoodRx was accused of getting used delicate info to focus on people with various kinds of promoting, various kinds of medicine and pharmaceutical merchandise.

And the FTC has mentioned you can’t promote or goal people utilizing delicate info with out their prior consent. And consequently, that is a vital observe for digital well being organizations to be enthusiastic about implementing of their practices.

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

Loughlin: Sure, I believe that the FTC will proceed to be actually engaged on this. The FTC doesn’t sometimes challenge guidelines and laws. As an alternative, they typically will put out steerage. After which they’re going to assist that steerage via particular sorts of enforcement actions, virtually creating a typical regulation of FTC enforcement, which places the neighborhood on discover that that is the expectation round commerce practices that would not be thought of unfair or misleading. 

So I believe there’s prone to be a time the place organizations are left to drag their enterprise practices to be extra in step with the GoodRx set of expectations. However very similar to the FTC has carried out with safety circumstances, in the event that they repeatedly see habits that they assume runs afoul of the ideas that they set out in GoodRx, you may probably see further enforcement.