In recent years, the FTC has increasingly focused on protecting consumers’ access to healthcare, through both its competition and its consumer protection missions. Similarly, the FTC has become a force in federal privacy regulation, second only to the Office for Civil Rights of the Department of Health and Human Services. On occasion, the FTC’s priorities in access to health care and health information privacy have come together, such as in settlements with health care companies regarding false or deceptive statements about the treatment of health data.
Since 2022, the FTC has signaled a significant increase in its focus on health privacy in general, especially related to personal health information, and rolled out significant new guidance that expanded the FTC’s authority and sets the stage for ramped up enforcement this year.
In January 2022, the FTC released two new publications regarding the Health Breach Notification Rule (HBNR) to help businesses determine whether the HBNR applies to them and to determine the steps that must be taken if a data breach occurs. In the publications, the FTC laid out an expansive approach to the definition of a data breach, expanding beyond just cybersecurity incidents to also include situations where an app developer discloses an individual’s health information without the individual’s consent.
In May 2022, the FTC published a blog post asserting that regardless of whether an entity is covered by the HBNR, Section 5 of the FTC Act “...
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