Alaap B. Shah, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Part B News, in “New Health App Rule Would Better Protect Users – and So Can You,” by Roy Edroso. (Read the full version – subscription required.)

Following is an excerpt:

Now is a good time to inform your patients that the health apps they use, which you may have prescribed or recommended, have different privacy protections than those afforded by HIPAA. However, take note of a new rule proposed by the Federal Trade Commission (FTC); if finalized, your patients will have a better chance of finding out when their data has been compromised, and malefactors will have specific penalties to worry about. …

Fisher notes that if you contract with the app company, that’s a different story: “Then the practice will need to assess what services are being provided,” he says. “In many cases, the services would likely involve the use or disclosure of protected health information. That means HIPAA applies and all of the requirements from HIPAA should be followed.”

Alaap B. Shah with the Epstein Becker Green firm in Washington, D.C. adds that, in such a case, “if the health app vendor is a business associate [under HIPAA], given that the health app is being provided on behalf of the health care provider to patients, then any individually identifiable health information being collected by the health app — either directly from the patient or transmitted by the health care provider — would arguably be considered PHI and subject to HIPAA.” Thus, in the event of a breach, the usual shared responsibility of covered entity and business associate would apply.

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