A health data privacy showdown

The ideas and innovators shaping health care

May 23, 2023 View in browser   By Ben Leonard and Erin Schumaker THE REGULATORS Web surfers are leaving troves of data online, including about their health. | Dean Mouhtaropoulos/Getty Images The Federal Trade Commission’s notice last week about its plan to crack down on health care companies that use customer data for marketing signals legal warfare to come. That’s according to the legal experts Ben consulted. The plan to use a 14-year-old cybersecurity rule “really is pushing the envelope,” said Kirk Nahra, a privacy attorney at law firm WilmerHale. He added: The agency is “retroactively” looking to “revise the rule to fit enforcement actions that it has already taken.” Nahra expects plenty of comments about the notice’s scope — at this point, it remains a proposal, not a final rule — and potential legal challenges if the FTC doesn’t scale it back. “They are 100 percent right that health data … does need more comprehensive privacy regulation, but I’m not sure FTC has been given sufficient tools by Congress to do this,” added Deven McGraw, a former high-ranking HHS Office for Civil Rights official and lead of data stewardship and sharing at biotech firm Invitae. What’s in the proposal? It aims to explain how the FTC’s 2009 Health Breach Notification Rule, initially designed to set out companies’ responsibilities when hackers access their systems, applies to data-sharing for marketing purposes. If finalized, the proposal would require health care companies to obtain customer approval before sharing their customers’ personally identifiable health information. It would clarify that health apps, including those offering health services and supplies — broadly defined to include fitness, sleep, diet, and mental health products and services, among a list of categories — would be subject to regulations requiring the companies to notify customers if their identifiable data is accessed by business partners or shared for marketing. Recent history: Until February, when it reached a settlement with drug price tracker and telehealth provider GoodRx for allegedly violating the rule, the FTC had never used it against companies that knowingly shared customer data with business partners. What's next: The FTC said it is looking forward to reviewing comments on its proposal.   DON’T MISS POLITICO’S HEALTH CARE SUMMIT: The Covid-19 pandemic helped spur innovation in health care, from the wide adoption of telemedicine, health apps and online pharmacies to mRNA vaccines. But what will the next health care innovations look like? Join POLITICO on Wednesday June 7 for our Health Care Summit to explore how tech and innovation are transforming care and the challenges ahead for access and delivery in the United States. REGISTER NOW.     WELCOME TO FUTURE PULSE Reston, Va. | Ben Leonard This is where we explore the ideas and innovators shaping health care. Forget telehealth for humans. Walmart’s hoping to find a diamond in the ruff, jumping into the pet telehealth business. They’re joining Amazon in the sector. Share any thoughts, news, tips and feedback with Ben Leonard at bleonard@politico.com, Ruth Reader at rreader@politico.com, Carmen Paun at cpaun@politico.com or Erin Schumaker at eschumaker@politico.com. Send tips securely through SecureDrop, Signal, Telegram or WhatsApp. Today on our Pulse Check podcast, host Megan Messerly talks with Ben about the decision by private insurers working for Medicare to maintain coverage for remote monitoring devices that track patients’ vital signs at home — and explains why it’s a big win for the telehealth industry, which grew exponentially during the Covid public health emergency but now has to sell its services in a post-pandemic world. Listen to today’s Pulse Check podcast TECH MAZE Remote monitoring at home got a reprieve from Medicare contractors. | Getty Images Score one for the telehealth companies. Private insurance companies working for Medicare have decided they’ll continue to pay for devices that monitor patients’ vital signs from their homes, according to an email obtained by POLITICO. Why it matters: A group of the insurers, Medicare Administrative Contractors serving fee-for-service patients, had convened earlier this year to examine evidence that could help it determine whether continued coverage was reasonable and necessary. Medicare empowers the insurers to make “local coverage determinations,” or LCDs, about whether medical products and services are reasonable and necessary within the region they serve. The group included insurers representing most of the country. The decision is a significant win for the telehealth industry, which argues that remote monitoring will yield cost savings by helping doctors catch health problems earlier. Several key industry groups, including the American Medical Association, Teladoc, the Alliance for Connected Care, Connected Health Initiative and Roche Diagnostics, had pushed for continued coverage. Even so: Remote monitoring took a hit this month when the Centers for Medicare and Medicaid Services said they’d no longer cover the service for new patients after the Biden administration ended the Covid public health emergency on May 11.   GET READY FOR GLOBAL TECH DAY: Join POLITICO Live as we launch our first Global Tech Day alongside London Tech Week on Thursday, June 15. Register now for continuing updates and to be a part of this momentous and program-packed day! From the blockchain, to AI, and autonomous vehicles, technology is changing how power is exercised around the world, so who will write the rules? REGISTER HERE.     WORKFORCE Pharmacists are in high demand. | Joe Raedle/Getty Images Pharmacy school applications plummeted in the last decade. That’s prompted big drugstore chains to take action. Some pharmacies like Walgreens have offered bonuses as high as $75,000 to attract pharmacists. CVS, the nation’s largest pharmacy by market share, is using artificial intelligence to make the job more appealing, Prem Shah, co-president of CVS Pharmacy, told POLITICO’s Alice Miranda Ollstein. Part of the process of filling a prescription is verifying that the medication is the right one. CVS is automating so pharmacists don’t have to open bottles to look at the pills. It takes photos of the pills and matches them against stock bottle using artificial intelligence. “We’re unlocking value and creating a differentiated work environment for our pharmacists,” Shah said. “Ultimately, we want to be the employer of choice.” More broadly, retail pharmacies are looking to shake up their business models. Walgreens, Walmart and CVS have taken up the clinical trial business, leveraging their retail footprints and troves of patient data to expand access to trials and recruit patients. They’re also increasingly turning their stores into places where patients can get prescriptions and their medicine. CVS, however, said recently that it’s closing its clinical trial business.   Follow us on Twitter Ben Leonard @_BenLeonard_ Ruth Reader @RuthReader Carmen Paun @carmenpaun Erin Schumaker @erinlschumaker   Follow us

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