The My Health My Data Act (“Act”) was approved by the Washington State House on April 17, 2023. The Act is now with Governor Jay Inslee for signature and is expected to be signed into law in its current form, which is broad enough to warrant anyone with any activity in Washington to consider its scope and implications for operations. Because the Act will be enforceable through a private right of action, it has the potential to create substantial legal exposure for violations.
The Act creates new and unique consumer rights and obligations for business relating to the collection, sharing, and use of “Consumer Health Data” (“CHD”). It expressly aims to “close the gap between consumer knowledge and industry practice” by expanding obligations related to processing of CHD to entities not covered by HIPAA. However, it is significantly broader in potential scope, including, in part, due to the gaping definition of CHD (which expressly includes data that identifies past, present, or future physical or mental health status, for example, “bodily functions” and “precise location information that could reasonably indicate an attempt to receive health services or supplies”). The Act will impact a range of business, including advertisers, mobile app providers like health and wellness trackers, wearable device manufacturers and, of course, healthcare and wellness industry companies and their data processors handling non-HIPAA-regulated CHD. Notably, the Act expressly addresses abortion/reproductive health services and gender-affirming care services (including by making it unlawful for any person to use a “geofence” (or virtual boundary) around a facility that provides health care services) for the purposes of identifying or tracking consumers seeking such services; collecting CHD from consumers; or sending them notifications, messages, or advertisements related to their CHD or health care services. This restriction applies regardless of consent or opt-in.Continue Reading Washington’s “My Health My Data” Act