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Mintz Levin. Not your standard practice. US Regulatory Trends: 2015 and Beyond Ellen L. Janos, Esq December 15, 2014

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Page 1: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

Mintz Levin. Not your standard practice.

US Regulatory Trends:

2015 and Beyond

Ellen L. Janos, Esq

December 15, 2014

Page 2: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

mHealth: US Opportunities

Affordable Care Act

• New Patient Care Models

– Wellness Initiatives and Incentives

– Patient Engagement

• Congress Appropriated $10B (2011-2019)

• Innovative Payment Models

– ACOs to promote the use of enabling technologies

for improving care coordination

• remote patient monitoring

• electronic tools to engage patients in their care

• telehealth

Page 3: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

mHealth: US Opportunities

• Funding/Collaboration Opportunities

– Private markets

– CMS, ONC and other funding opportunities

– Provider Collaborations/Affiliations

• Medicare Reimbursement

for Telemedicine

• Private Health Insurance

Telehealth Parity Laws

Page 4: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

mHealth: What to Expect from HHS

HIPAA and HITECH Act

Data Privacy

Required Policies and Procedures

Data Security

Data Breach Enforcement

Doing Business with a Covered Entity

Who is a Business Associate?

What does it mean to be a Business

Associate?

Page 5: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

mHealth: What to Expect from the FDA

• Current FDA Regulation of Devices

– Is it a Device?

• Equipment/software intended for use in

the diagnosis/treatment of a disease/condition

– If so-

• Must register and list, premarket notification

and/or approval, good manufacturing

practices, and post-market surveillance

Page 6: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

mHealth: What to Expect from the FDA

Reducing Regulatory Burdens: Risk Based Framework

FDA Guidance for Mobile Medical

Apps

(Sept 2013)

FDASIA Health IT Report

(April 2014)

FDA Guidance

on Medical Device Data

Systems (June 2014)

Page 7: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

mHealth: What to Expect from the FDA

Will Congress take away FDA's discretion??

• Software Act (House) & Protect Act (Senate)

Clinical software and health software

would not be subject to regulation by the FDA

as "devices". Goal is to:

• Remove uncertainty

• Reduce regulatory burdens

• Promote patient safety

• Foster innovation

Page 8: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

mHealth: What to Expect from the FCC

• CONNECT2HEALTHFCC Task Force

– to accelerate adoption of health

care technologies

– Serve as umbrella for FCC health-

oriented activities

• Proposed Net Neutrality Rules

– delay until 2015

• Consideration of Medical Body

Area Network (MBAN) devices

Page 9: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

mHealth: What to Expect from the FTC

Continued Regulation of

Personal Health Records (PHRs)

Data Breach Concerns

Focus on Consumer Generated Health Information (CHI)

FTC Data Broker Study

FTC concerns about sale of

data to market products

Page 10: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

Where Are We Headed?

Medicare and Medicaid

Reimbursement

Risk Based Approach by FDA to Regulation of

Devices

Focus on Privacy and

Security

Increased Collaborations

More Coordination Among Regulatory

Bodies

Public and Private Funding

Page 11: mHealth Israel_Ellen Janos_Healthcare Partner_Mintz Levin_ US Regulatory Environment

Ellen L. Janos, Esq.

Mintz Levin Cohn Ferris Glovsky and Popeo, PC

One Financial Center

Boston, MA 02113

617.348.1662

[email protected]

Thank You!