Democrats concerned about Kushner’s surveillance concept

With help from Darius Tahir (@dariustahir) and Cristiano Lima (@viacristiano)

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Quick Fix

— Democrats alarmed by secrecy of Kushner’s surveillance concept: Sens. Mark Warner and Richard Blumenthal, along with Rep. Anna Eshoo, pressed Jared Kushner today in a letter shared with POLITICO.

— Could the pandemic revive privacy talks?: During a rare “paper hearing” Thursday, Senate leaders examined the costs and benefits of using personal data to limit the spread of coronavirus.

— Mental health workers’ ‘mad scramble’ toward telehealth: Americans are more anxious than ever, but years of restrictive policy means behavioral health care workers are struggling to treat a flood of new patients online.

eHealth tweet of the day: claudiawilliams @claudiawilliams “Electronic case reporting looks so promising to support #COVID19 response. But I’m hearing the standard is hard to implement, for EHRs but especially for HIEs. Share your experience. What would make it easier? @Farzad_MD @jim_daniel @ucdavis”

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Driving the Day

PRIVACY FEARS BUBBLE UP AMID SURVEILLANCE TALKS — Democratic lawmakers are demanding answers from the Trump administration about the possible national public health surveillance system following our colleague Adam Cancryn’s report on the project earlier this week.

Warner, Blumenthal and Eshoo have “serious concerns with the secrecy of these efforts and their impact on the health privacy of all Americans,” they wrote in a letter to Kushner today. As Adam reported, Kushner’s team has already reached out to health technology companies about the system, though a White House spokesperson denied knowledge of the proposal. “Your office’s denial of the existence of this effort, despite ample corroborating reporting, only compounds concerns we have with lack of transparency,” the three wrote.

... While some measures such as disclosing patients’ diagnosis to first responders may be necessary, without a “clear commitment and improvements to our health privacy laws,” such measures could “undermine the confidentiality and security of our health information and become the new status quo,” they wrote. (In case you missed it, NBC reported on local governments sharing coronavirus patients’ addresses with law enforcement and first responders this week.)

They pushed Kushner to disclose which tech companies and data providers his team had approached and how they’d guard against the misuse of data, and to commit to working with Congress on privacy protections.

Earlier this week, Rep. Suzan DelBene also advised caution on surveillance. “It is critical that we keep personal privacy top of mind as data is collected, and I am concerned that the Trump administration has not highlighted privacy as it considers collecting personal health data in response to COVID-19,” she said in a news release.

In other congressional privacy warnings, the Senate sergeant at arms has advised that web conferencing platform Zoom — also widely used for telehealth — poses significant privacy risks and could leave Senate offices’ data and systems exposed, according to an internal memo obtained by POLITICO’s Cristiano Lima.

The law enforcement chief urged lawmakers to use “preferred and supported video conferencing options” such as Skype for Business instead.

The Senate Rules Committee has also “instructed offices to only use Senate-supported technologies,” according to a panel spokesperson; Zoom is not among them.

EUROPE’S PRIVACY LAW SAGS UNDER WEIGHT OF PANDEMIC — Privacy experts in Germany warn that the country’s data protection laws are getting a stress test as the mostly locked-down country tries to revive its economy, POLITICO Europe’s Janosch Delcker reports.

“Since the outbreak of the pandemic, you can certainly observe how some are trying to hollow out data protection standards,” Germany’s federal commissioner for data protection, Ulrich Kelber, told POLITICO. “That’s nothing uncommon — there are always several actors who are trying to exploit an emergency situation for their objectives.”

Kelber’s office and other groups have managed to stop Chancellor Angela Merkel’s government and regional administrations from turning to invasive measures to stop the spread of the virus.

“The case law is clear: You can only collect data here under very narrow conditions and never without concrete reason,” former German Justice Minister Sabine Leutheusser-Schnarrenberger told POLITICO. “But I do observe that some political actors argue that a difficult situation like this one, where there’s danger not just for individual health but also the healthcare system, justifies dismissing some data protection standards while claiming that those standards should only apply for good-weather situations — and that’s wrong.”

... Neighbors including Poland have instituted mandatory tracking apps, but Germany’s been limited so far to voluntary efforts; earlier this week researchers rolled out an app that lets users donate data from fitness trackers, for instance.

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TAKEAWAYS FROM THE COVID-19 ‘BIG DATA’ HEARING — Witnesses at Thursday’s Senate Commerce “paper hearing” on big data and the coronavirus pandemic largely agreed on one major point: The outbreak underscores the need for a federal privacy law. And the lack of standards may be slowing relief efforts by creating uncertainty for the tech sector, some argued.

— “A federal privacy law would also provide much-needed legal clarity for US companies to be able to respond quickly and understand what kind of data they may or may not share legally and ethically to support emergency public health initiatives,” Stacey Gray, senior counsel for the Future of Privacy Forum, wrote in her testimony.

— A silver lining? A consensus Senate privacy bill remains notoriously elusive, despite over a year of talks among committee leaders and other lawmakers. But one witness suggested that the public health emergency may yield a positive outcome by providing a “stress test” for the proposals already vying for support on Capitol Hill. “By having a really explicit conversation about how data is used in these moments, whether companies are going too far … I think it actually is useful for the bigger picture of how we craft the law,” the Center for Democracy & Technology’s Michelle Richardson told Pro’s Morning Tech prior to the session.

— As for the “paper” format of the session, which will spill into next week as MT explained Thursday, the lack of a live back-and-forth between lawmakers and witnesses was clearly felt. “It certainly doesn’t have the theatrics and the spontaneity of a real hearing but this is the next best thing and it keeps everybody safe,” the Interactive Advertising Bureau’s Dave Grimaldi said before the hearing.

MENTAL HEALTH WORKERS BALK AT MAZE OF TELEHEALTH LAWS — More than 57 million Americans are diagnosed with mental health or substance use disorders, and Elinore McCance-Katz, the Trump administration’s top mental health official, said those numbers are likely to grow during the pandemic.

It might have been a perfect opportunity for telehealth. But some behavioral health care providers tell us that rapidly transitioning to virtual care is harder than it sounds, especially given all the regulatory and licensing obstacles that have limited their adoption for telehealth for years.

“There’s been a huge potential for this move for a long time, but ... regulatory and reimbursement barriers have prevented it from happening,” said Chuck Ingoglia, president and CEO of the National Council for Behavioral Health.

... The Trump administration has temporarily relaxed some of those restrictions, but it’s not clear that any of those policies will last beyond the end of the pandemic. “There is a mad scramble to shift mental health and addiction treatment services online,” said Al Guida, a lobbyist representing behavioral health providers. “The question becomes: during a period extreme economic challenge, how do we invest heavily in tele-mental health?”

... Some companies are already seeing a surge in visits. Doctor on Demand, for instance, said it’s seen a 130 percent increase in behavioral health visits compared with the same time last year.

ACT | The App Association’s Connected Health Initiative is among groups pressing CMS to make telehealth more accessible by removing some barriers to virtual care and remote patient technology. In a letter to HHS Secretary Alex Azar and CMS head Seema Verma, the group asked for relief from anti-kickback laws for digital health, pay for more phone-only consultations, and for additional support so that community hospitals and rural health clinics can also use telehealth, among other requests.

In other letters to CMS, the Alliance of Community Health Plans asked the agency to move the implementation date for its Interoperability and Patient Access Final Rule to at least January 1, 2022, especially since staff are mostly focused on coronavirus response right now. The agency is expected to delay enforcement of its landmark data-sharing rule.

What We're Reading

—Chaos leaves medical devices vulnerable to hackers, CIODive’s Greg Slabodkin reports.

—HealthcareItNews’ Mike Miliard explains how to apply for FCC’s coronavirus telehealth funding program.

—A QAnon conspiracy theorist who posted NFL players’ brain scans has been arrested, The Daily Beast’s Will Sommer reports.