Tech companies use legal shield on opioid liability

With help from Arthur Allen (@arthurallen202) and Mohana Ravindranath (@ravindranize)

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Quick Fix

— Tech use legal shield on opioid liability: The companies are using one of the pillars of internet law to avoid liability on opioid sales — claiming that same law helps them play a role in fighting the crisis.

— Another study suggests PDMP effectiveness: A new study — the second recent one — provides some evidence that prescription drug monitoring programs, in certain situations, can help ameliorate the drug crisis.

— Harris proposes HIPAA tweaks: The California senator has some thoughts about how HIPAA can be changed to help with the mental health crisis.

And more. But first, the jump.

eHealth tweet of the day: Rahul Kothari @rahulk013

“Flight attendant: Is there a doctor on this flight?

Dad: *nudging me* that should’ve been you

Me: Not now Dad

Dad: Not asking for a marketer to help, are they?

Me: Dad, there’s a medical emergency happening right now

Dad: Go and see if a ‘creative brief’ helps”

WEDNESDAY — Hope everyone’s having a nice Thanksgiving with friends and family. Share your best Thanksgiving feats by email at [email protected]. Discuss holidays socially at @arthurallen202, @dariustahir, @ravindranize, @POLITICOPro and @Morning_eHealth.

Driving the Day

LEGAL SHIELD HELPS TECH COMPANIES ON OPIOID SALES LIABILITY — Tech companies maintain that one of the legal pillars upholding the internet clears them of liability for drug sales on their platforms and is also essential to hosting constructive discussions about rehabilitation and recovery.

During a recent House Energy and Commerce hearing, Reddit CEO Steve Huffman testified that modifying Section 230 of the Communications Decency Act to hold the site accountable for user-driven drug sales could mean that hosting recovery discussions “may simply become too risky, forcing us to close them down.” A Twitter spokesperson agreed that the clause is “vital” to allowing recovery-related discussions to thrive.

Legal and technology experts disagree about the strength of that line of reasoning. “The argument that we cannot prevent harm without unintended consequences is simply a lie,” said University of California, Berkeley professor Hany Farid. “They simply don’t want to because it takes effort and money.”

Young People in Recovery’s Justin Riley said the platforms provide invaluable support for those seeking help with addiction issues, and that shouldn’t be jeopardized: “I think everyone has a responsibility to use their leadership and their platform … to provide solutions.”

NEW PDMP STUDY SUGGESTS (SOME) OVERDOSE DECREASES — Prescription drug monitoring programs can reduce heroin poisonings — but only if they have certain characteristics, a new study in the International Journal of Drug Policy finds. It’s the second recent study to suggest PDMPs can drive real improvements in public health, the main debate over the programs.

Both the media and academic communities have speculated that PDMPs, as implemented and used, actually increase the rate of heroin or fentanyl overdoses. In theory, doctors might use the PDMP to identify patients with high risk of opioid use disorder and try and cut off their supply. That might lead patients to shift to illicit, more dangerous drugs with a higher risk of death.

But the study offers mixed evidence for that proposition. The researchers examined whether different types of policies and tech add-ons — like sharing data, or alerting doctors when patients appeared to be at risk of overdosing — affected the rate of heroin poisonings, and found that alerts and sharing with law enforcement were associated with a decrease in the rate. Other configurations seemingly increased the rate.

It’s the second recent study to suggest PDMPs, with the right policies, can improve health status. But Colleen Carey, a Cornell economist who’s studied the programs, says the statistical methods of the study could use improvement — that the methods of the study don’t distinguish between ongoing trends of the opioid crisis and the actual policy changes at hand. “I don’t discount this paper entirely, and I am happy this group is trying to sort through the issues here,” she said.

HARRIS PROPOSES HIPAA TWEAKS IN MENTAL HEALTH PLAN — 2020 hopeful Kamala Harris’ new plan on mental and behavioral health proposes some big telehealth expansions — as well as tweaks to HIPAA that are supposed to encourage more data-sharing, like protecting providers who make good-faith disclosures of information or allowing providers to gather information from family members.

But privacy experts say the California Democrat’s proposals aren’t terribly consequential. “The proposed changes do not seem to meaningfully change HIPAA and to some degree are already permitted,” said Matt Fisher, a Mirick O’Connell health privacy lawyer. And changes to HIPAA won’t help if state law is more restrictive than federal law.

“OCR has put out extensive guidance on all of this — and yet it remains a problem that providers think HIPAA doesn’t allow them to make disclosures to friends or family or to gather info from family members,” said Deven McGraw, a former OCR official and current executive at data startup Ciitizen. She said, however, that it’s helpful these issues are getting emphasis.

PRIVACY SHAKEOUT — And some more dispatches from the privacy policy scrums:

— Senate Dems moving forward on privacy legislation: Democrats on the Senate Commerce Committee have unveiled their own spin on comprehensive privacy policy, our colleague Cristiano Lima reports. The proposal would give consumers more rights to control their data and require companies with large stores of data to do more to protect what they hold. (Entities covered by HIPAA and HITECH don’t need to worry about this.)

The proposal will be considered at a Commerce panelhearing next week, which will include testimony from Microsoft and Walmart executives. The hearing will also examine a passel of other privacy bills.

— California advertising group says it will use previously collected data: A trade group representing tech firms like Google and Facebook says that businesses can use data previously collected on Californians despite the state’s sweeping new privacy law, our colleague Katy Murphy reports.

The trade group, called the Interactive Advertising Bureau, asserts that the law allows companies to use accumulated data even if Californians opt out of having their data sold when the privacy law takes effect. Privacy advocates note that the law itself includes no reference to such a provision.

TRUMP ADMIN WARNS ON FOREIGN RESEARCH CASH — The White House Office of Science and Technology Policy is concerned about foreign governments’ efforts to influence research, according to a new request for information cited by our Education colleague Juan Perez Jr.

The request, seeking to find ways to improve research, notes concerns about foreign efforts disrupting or corrupting the research process.

Nationalistic concerns have been seeping into health care research, with the government warning about Chinese access to American genomic data, and Chinese-American researchers being caught up in a crackdown — which many in academia are concerned is unfair ethnic targeting.

CAUGHT … RED HANDED? — A red-hand “consumer alert icon” intended to warn patients from selecting unsafe facilities on CMS’s Nursing Home Compare website could destroy “blame-free environments,” the Society for Post-Acute And Long-Term Care Medicine warned the agency. CMS has been attempting to change the Compare website to provide more transparency to beneficiaries interested in choosing facilities. But nursing homes have been crying foul.

“The red hand does not provide accountability; it is instead a systematic attempt to blame facilities and/or healthcare personnel,” the group wrote in a recent letter to CMS Administrator Seema Verma. “The prominent ‘stop and avoid’ symbol may have the reverse effect of increasing the risk of abuse, as abuse is unlikely in open, healthy work cultures.”

EXECS CHARGED IN AD FRAUD CASE — DOJ this week brought charges alongside a civil complaint by the SEC against former leaders of Outcome Health, which sells products like exam room tablets and waiting room TVs, our POLITICO colleague Kellie Mejdrich reports. The executives allegedly inflated their ad sales in reports to investors, fraudulently obtaining about $1 billion in funds.

The former executives — CEO Rishi Shah, President Shradha Agarwal, CFO Brad Purdy and executive vice president Ashik Desai — misrepresented the success of the ads to investors, the agencies allege. Most were for pharmaceutical companies. DOJ charged that the employees sold ad inventory “that did not exist” between 2011 and 2017, leading to financial statements used to obtain loans and equity financing, Kellie writes. Securities regulators charged that Outcome Health overstated its revenue in audited financial statements by tens of millions of dollars.

HAHN COMMITTEE VOTE SCHEDULED TUESDAY — FDA commissioner nominee Stephen Hahn will receive a vote from the Senate HELP Committee on Tuesday, moving him one step closer to confirmation. While Hahn has been criticized by Democrats like HELP ranking member Patty Murray for a lack of government experience, he’s gotten an endorsement from committee Chair Lamar Alexander and the previous five agency commissioners, so he should receive the committee’s imprimatur. Alexander has said he hopes the Senate will confirm Hahn by the end of the year.

And we’ll be watching for you next week: On Dec. 3, Pro Cannabis Editor Paul Demko will moderate an event — “Recreational Marijuana and CBD: Public Attitudes, Science, and the Law” — presented by The Forum at the Harvard T.H. Chan School of Public Health jointly with POLITICO. Panelists will include Harvard’s Robert Blendon and Staci Gruber, cannabis consultant Andrew Freedman and University of California San Diego’s David Grelotti. The livestreamed event will unpack the findings from a POLITICO-Harvard Chan poll on CBD and marijuana released earlier this month.

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