Google's Health Care Data Push Puts Spotlight on Patient Disclosure
Google's Project Nightingale, which has access to the personal health information of millions of Americans, is unlikely to trigger HIPAA violations. But it may still have long-term repercussions for the way the law thinks about patient disclosures.
November 13, 2019 at 03:00 PM
4 minute read
Earlier this week, the Wall Street Journal reported that Google had struck a deal with the U.S.-based health system Ascension that gives the search giant access to the personal health information of millions of Americans.
While the arrangement may come equipped with a code name—Project Nightingale—and give more than 150 Google employees access to data such as patient names, lab results, hospitalization records and doctor diagnoses, it could actually wind up being pretty run of the mill as far as the Health Insurance Portability and Accountability Act (HIPAA) is concerned.
Of bigger concern may be the wider implications for laws surrounding patient consent and disclosure notifications, which may have to be reexamined as a growing list of tech companies that includes Microsoft and Amazon continue venturing into the medical industry.
"What you might see is there are more specific obligations to record disclosures and to provide patients about more specific notice about who is getting their information," said Tatiana Melnik, an attorney and founder of Melnik Legal.
According to the Wall Street Journal, patients have not been alerted that Google has access to their personal health information, but neither notification or de-identification of data is actually required within the context of what HIPAA defines as a "business associate agreement."
Elek Miller, an attorney with Drummond Woodsum, said that the parameters governing how the data included in such an arrangement is used largely comes down to the individual terms hammered out between the health care provider and the business associate it's engaging.
"Generally speaking, under that agreement a business associate can largely make uses and disclosures of protected health information that the covered entity itself could make under the privacy rule," Miller said.
The Wall Street Journal noted that Google is using the personal health information to develop AI and machine learning powered software that can "suggest changes" to an individual patient's care.
Per Matthew Fisher, partner with Mirick, O'Connell, DeMallie & Lougee, similar relationships between other health systems and tech consulting companies are not uncommon since data is necessary in order to fuel the development of analytic tools.
"In terms of arrangements like this, they are happening every single day," Fisher said.
But commonality doesn't always equate to comfort. For instance, The Guardian published a report about an anonymous Project Nightingale whistleblower who posted a video to Daily Motion containing images of confidential documents from the initiative. Annotations ran over the documents suggesting that Google could share the data with a third party or use it to create patient profiles used to advertise health care products.
However, HIPAA does provide some latitude for data sharing in the event that Google were to share the personal health information in question with a subcontractor while pursuing the terms of its original business agreement with Ascension.
Using that data for advertising purposes is a murkier proposition. Fisher thinks that an attempt by Google to leverage that information towards its own benefit would likely trip over marketing regulations absent patient or individual authorization. However, ads based upon services offered by Ascension may get a pass.
"While most marketing activities require authorization, there are certain limited activities such as advising individuals of services already offered by a [HIPAA] covered entity that are permissible without authorization," Fisher said.
But the name "Google" is always going to draw eyeballs and likely some concerns given the ongoing national conversation around privacy. The Wall Street Journal reported Tuesday that the Department of Health and Human Services' Office for Civil Rights had opened an inquiry into Project Nightingale "to ensure that HIPAA protections were fully implemented."
With other big names like Amazon and Microsoft wading further into the medical field, could there be a crackdown on data sharing restrictions?
Melnik of Melnik Legal actually thinks that the trend could move in the opposite direction, citing a push that's emerged over the last few years to loosen existing restraints on data sharing to provide more direct and on-demand health care services.
She does, however, believe there's a chance that more recourse is put in place for patients to hold companies or health systems accountable when their data is improperly handled since HIPAA doesn't include a private right of action.
"If you have patients that have an actual recourse, that gives companies more incentives to comply [with regulations]," Melnik said.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllLaw Firms Mentioned
Trending Stories
- 1Gibson Dunn Sued By Crypto Client After Lateral Hire Causes Conflict of Interest
- 2Trump's Solicitor General Expected to 'Flip' Prelogar's Positions at Supreme Court
- 3Pharmacy Lawyers See Promise in NY Regulator's Curbs on PBM Industry
- 4Outgoing USPTO Director Kathi Vidal: ‘We All Want the Country to Be in a Better Place’
- 5Supreme Court Will Review Constitutionality Of FCC's Universal Service Fund
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250