On May 18, 2023, the Federal Trade Commission (“FTC”) announced a notice of proposed rulemaking (the “proposed rule”) to “strengthen and modernize” the Health Breach Notification Rule (“HBNR”). The proposed rule builds on the FTC’s September 2021 “Statement of the Commission on Breaches by Health Apps and Other Connected Devices” (“Policy Statement”), which took a broad approach to when health apps and connected devices are covered by the HBNR and when there is a “breach” for purposes of the HBNR. The proposed rule primarily would (i) amend many definitions that are central to the scope of the HBNR (e.g., “breach of security,” “health care provider,” and “personal health record”), and (ii) authorize expanded means for providing notice to consumers of a breach and require additional notice content. According to the FTC, these changes to the HBNR would ensure the HBNR “remains relevant in the face of changing business practices and technological developments.” Below, we provide a brief summary of the history of the HBNR leading up to this proposed rule, a brief summary of the proposed rule, and a timeline for commenting.
Texas Passes Data Privacy and Security Act
On May 28, 2023, the Texas legislature passed the Texas Data Privacy and Security Act, making it the sixth state to pass a comprehensive data privacy law this year. The Act shares many similarities with Virginia, although there are some distinctions. If signed into law, the Act would take effect on July 1, 2024.
FTC Announces Second Enforcement Action Under Health Breach Notification Rule Against Fertility App Developer Easy Healthcare
On May 17, the Federal Trade Commission (“FTC”) announced an enforcement action against Easy Healthcare Corporation (“Easy Healthcare”) alleging that it shared users’ sensitive personal information and health information with third parties contrary to its representations and without users’ affirmative express consent, in violation of Section 5 of the FTC Act. It also alleges that Easy Healthcare failed to notify consumers of these unauthorized disclosures, in violation of the Health Breach Notification Rule (“HBNR”). According to the proposed order, Easy Healthcare will pay a $100,000 civil penalty for violating the HBNR and, among other requirements, will be permanently prohibited from sharing users’ personal health data with third parties for advertising purposes. The FTC also noted that Easy Healthcare will pay a total of $100,000 to Connecticut, the District of Columbia, and Oregon for violating their laws.
DOJ, FTC, CFPB, and EEOC Statement on Discrimination and AI
On April 25, 2023, four federal agencies — the Department of Justice (“DOJ”), Federal Trade Commission (“FTC”), Consumer Financial Protection Bureau (“CFPB”), and Equal Employment Opportunity Commission (“EEOC”) — released a joint statement on the agencies’ efforts to address discrimination and bias in automated systems.
Continue Reading DOJ, FTC, CFPB, and EEOC Statement on Discrimination and AI
NYC Artificial Intelligence Rule to Take Effect July 5, 2023: New York City Issues Final Rule Regulating the Use of AI Tools by Employers
The New York City Department of Consumer and Worker Protection (“DCWP”) recently issued a Notice of Adoption of Final Rule (“Final Rule”) relating to the implementation of New York City’s law regulating the use of automated employment decision tools (“AEDT”) by NYC employers and employment agencies.
NYC’s Local Law 144 now takes effect on July 5, 2023. As discussed in our prior post, Local Law 144 prohibits employers and employment agencies from using certain Artificial Intelligence (“AI”) tools in the hiring or promotion process unless the tool has been subject to a bias audit within one year prior to its use, the results of the audit are publicly available, and notice requirements to employees or job candidates are satisfied.
The issuance of DCWP’s Final Rule follows the prior release of two sets of proposed rules in September 2022 and December 2022. The Final Rule’s most significant updates from the December 2022 proposal include an expansion of the definition of AEDTs and modifications to the requirements for bias audits. Key provisions of the Final Rule are summarized below.
HHS Issues Notice of Proposed Rulemaking on HIPAA and the Use and Disclosure of Information Related to Reproductive Health Care
On April 17, the Office for Civil Rights (“OCR”) at the U.S. Department of Health & Human Services (“HHS”) published a notice of proposed rulemaking that would revise the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule to bar certain uses and disclosures of protected health information (“PHI”) related to reproductive health care. Specifically, the proposed rule (“Rule”) would amend the Privacy Rule to prohibit covered entities or business associates (collectively, “regulated entities”) from using or disclosing PHI for purposes of (1) criminal, civil, or administrative investigations into or proceedings against any person in connection with seeking, obtaining, providing, or facilitating lawful reproductive health care, or (2) the identification of any person for the purpose of initiating such investigations or proceedings.
The Rule appears to be designed to further President Biden’s executive order directing HHS to consider actions that would “strengthen the protection of sensitive information related to reproductive healthcare services and bolster patient-provider confidentiality.” President Biden issued the order in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
Below, we provide a brief summary of the proposed changes and a timeline for commenting.
Indiana Passes Comprehensive Privacy Statute
On April 11, the Indiana legislature passed comprehensive state privacy legislation in the form of S.B. 5. S.B. 5 shares similarities with the state privacy laws in Virginia, Connecticut, Colorado, Utah, and most recently Iowa. If signed into law, S.B. 5 would take effect on January 1, 2026. This blog post summarizes the statute’s key takeaways.
Continue Reading Indiana Passes Comprehensive Privacy Statute
HHS Issues Notice of Expiration of COVID-19 HIPAA Enforcement Discretion
On April 11, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) announced that four Notifications of Enforcement Discretion (“Notifications”) that were issued under the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (collectively, “HIPAA”) during the COVID-19 pandemic will expire on May 11, 2023. In response to the COVID-19 Public Health Emergency, OCR announced it would exercise enforcement discretion with respect to noncompliance with certain provisions of HIPAA. Now that the public health emergency is set to expire, OCR is rescinding the relevant Notifications. Below, we summarize the four Notifications that are set to expire:
Continue Reading HHS Issues Notice of Expiration of COVID-19 HIPAA Enforcement Discretion
Washington’s My Health My Data Act Passes State Senate
Washington’s My Health My Data Act (“HB 1155” or the “Act”), which would expand privacy protections for the health data of Washington consumers, recently passed the state Senate after advancing through the state House of Representatives. Provided that the House approves the Senate’s amendments, the Act could head to the governor’s desk for signature in the coming days and become law. The Act was introduced in response to the United States Supreme Court’s Dobbs decision overturning Roe v. Wade. If enacted, the Act could dramatically affect how companies treat the health data of Washington residents.
This blog post summarizes a few key takeaways in the statute.
Continue Reading Washington’s My Health My Data Act Passes State Senate
Iowa Enacts Comprehensive Consumer Privacy Law
On March 28, Governor Kim Reynolds signed into law SF 262, making Iowa the sixth state to enact a comprehensive consumer privacy law. The new law will take effect on January 1, 2025.
As we discuss here, Iowa’s privacy law shares a number of key similarities to existing state privacy frameworks, including providing