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On April 27, 2023, Washington Governor Jay Inslee signed into legislation the “My Well being My Knowledge Act,” (the “Act”), starting the 11-month countdown till this new, broad privateness legislation takes impact. The Act distinguishes itself from different current state privateness legislation laws in that it’s particularly well being care centered—aiming to guard well being knowledge that falls outdoors the scope of the Well being Insurance coverage Portability and Accountability Act of 1996 (“HIPAA”). In making an attempt to safeguard this class of data, Washington has enacted a broad legislation that may require strong compliance efforts from entities usually thought-about outdoors of conventional well being care regulatory regimes. Additional, the personal proper of motion current within the Act units a brand new stage for potential litigation and subsequent modifications primarily based on judicial interpretation.
On this Alert, we offer a abstract of key provisions of the brand new legislation, compliance issues, and actions companies can take to arrange for the March 31, 2024 efficient date.
Who and What’s Being Regulated?
Regulated entities are outlined broadly. Spurned by post-Dobbs privateness issues, the said intent of the Act is to “shut the hole” between the well being data that people consider is protected and what truly is. To this finish, the scope of the Act is broad, making use of to “regulated entities,” that are outlined as any entities that conduct enterprise or goal customers in Washington and—collectively or unilaterally—determines the aim and technique of gathering, processing, sharing, or promoting client well being knowledge. Not like different state legal guidelines, the Act doesn’t have a threshold for annual income, the variety of impacted customers, or the quantity of income attributable to sharing well being data for regulated entities. Whereas so-called small companies have a barely longer time through which to change into compliant (not till June 30, 2024 for small companies in comparison with March 31, 2024 for all different entities), regulated entities are in any other case handled equally all through the legislation, regardless of dimension. When it comes to exceptions, there are particular data-based exceptions, together with knowledge topic to HIPAA, the Gramm-Leach-Bliley Act, the Honest Credit score Reporting Act, the Household Instructional Rights and Privateness Act, and Washington’s personal well being profit change legislation.
Customers embrace people whose knowledge are “collected” in Washington. Whereas “client” consists of Washington residents, it additionally covers an individual whose client well being knowledge are collected in Washington. “Collected” is outlined expansively and consists of shopping for, renting, accessing, retaining, receiving, buying, inferring, deriving, or in any other case processing client well being knowledge in any method. There isn’t any readability given throughout the legislation on what actions can be thought-about “inferring” or “deriving”; nevertheless, it’s famous that “client” doesn’t embrace people appearing in an employment context. Companies ought to take particular care in evaluating their relationship to any form of well being knowledge so as to higher vet whether or not their processes might fall underneath this broad definition of “assortment.”
Client well being knowledge consists of well being adjoining data. The definition of “client well being knowledge” is expansive and consists of data that’s “linked or fairly linkable” to a client that identifies the patron’s previous, current, or future bodily or psychological well being. The classes included underneath this definition vary from particular person well being circumstances or remedies, the use or buy of medicines, measurements of bodily capabilities or important indicators, exact places that might “fairly point out” a client’s try to accumulate well being providers or provides, and so they also can embrace data that’s “derived or extrapolated from nonhealth data.” Just like the definition of “assortment,” little element is given on what the broader classes truly imply in utility.
Compliance Necessities
Strong discover and consent for gathering and sharing client well being knowledge. Beneath the Act, entities can be required to offer detailed client well being knowledge privateness insurance policies. As well as, opt-in consents will should be individually and distinctly obtained for (a) the gathering and (b) sharing of client well being knowledge. Additional, each the patron well being knowledge privateness insurance policies and the consents should element the classes of well being knowledge which can be being collected or shared, how the information can be used, the classes of knowledge that can be shared, and the way customers can withdraw consent from stated processes.
Sale of client well being knowledge requires client authorization. Just like HIPAA authorizations, the sale of client well being data would require a client’s particular authorization. These authorizations should specify the patron well being knowledge to be bought, the purchaser’s particulars, and the supposed use of the patron well being knowledge being bought. Moreover, the authorizations are revocable at any time and are legitimate just for at most one 12 months.
Absolute proper of deletion. Customers may have the proper to withdraw consent to the gathering and sharing of their client well being knowledge in addition to the proper to request deletion of such knowledge. Upon receiving such a request, entities should delete the patron well being knowledge from their data, together with from backup and archived techniques, and should notify all associates of the deletion request.
Compliance Issues
Prohibits the usage of geofencing. The Act prohibits the usage of a geofence round an entity that gives in-person well being care providers whereby the geofence expertise is used to determine or observe customers; accumulate client well being knowledge; or ship notifications, messages, or ads regarding well being knowledge or well being care providers. Entities which have mixed retail and clinic areas—extra widespread with the arrival of the quick-clinic—ought to take particular care to ensure they don’t run afoul of such a requirement.
Violating a contract with a regulated entity renders the processor a regulated entity itself. Processing client well being knowledge on behalf of a regulated entity requires a contract that enumerates the processing directions particular to what’s essential per the patron’s consent or to offer the requested services or products. A violation of stated contract renders the processor a coated entity and, as such, topic to the entire regulated entity’s obligations underneath the Act. Accordingly, knowledge processors should take particular care in regard to their adherence to such contractual phrases.
The Act features a personal proper of motion. Just like the Illinois Biometric Info Privateness Act (“BIPA”), which has seen in depth litigation, the Act features a personal proper of motion underneath Washington’s Client Safety Act. People can deliver claims towards entities for damages of as much as $7,500 per violation. The definition of a “violation” isn’t prescribed within the Act and, as has been seen in current BIPA circumstances, whether or not a violation is outlined as the final assortment of data or every occasion of assortment of data might have drastic results on the ultimate damages calculation.
Subsequent Steps
The Act separates itself from the privateness pack as a novel, expansive privateness legislation making an attempt to focus on areas of delicate well being knowledge which have change into of larger concern within the post-Dobbs world. Contemplating the pervasive worry of the misuse of knowledge surrounding reproductive well being care, it’s unlikely that this Act would be the solely laws of its sort. As a substitute, it’s extra possible the primary of a newly chartered course into well being knowledge regulation. Different states like Illinois are additionally contemplating related laws. Whereas those that fall underneath the definition of regulated entity throughout the Washington context ought to start getting ready for implementation of the legislation, these outdoors of the Act’s attain ought to nonetheless take discover of it as an indication of a brand new type of privateness regulation which will unfold to different equally involved states.
To start getting ready for enforcement, entities ought to consider the extent to which they accumulate, share, or promote client well being knowledge or any knowledge which may be fairly interpreted to be thought-about client well being knowledge. As BIPA litigation in Illinois has proven, the vagueness of phrases ought to lead entities to be overly cautious in evaluating whether or not the information they accumulate are associated to well being data. Moreover, entities ought to start vetting their present privateness insurance policies and spot and consent procedures and search recommendation on formulating new, compliant disclosures. Additional, the proper of deletion throughout the Act is powerful to the extent that laying the groundwork so as to make such a course of as environment friendly as attainable can’t start quickly sufficient. Total, the Act demonstrates the rising development towards larger and extra granular oversight of personal data—entities ought to hold an in depth eye on this development and put together accordingly.
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When you’ve got any questions regarding this Alert, please don’t hesitate to contact one of many authors or your common Ropes & Grey advisor.
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