In case you are concerned with any well being info, even if you’re not lined by HIPAA, you have to be conscious of the federal government’s current place that there could also be critical privateness and critical dangers with use of on-line monitoring applied sciences which may be current on a web site or cellular app that tracks client delicate private well being info. Final week, the Federal Commerce Fee (“FTC”) and the U.S. Division of Well being and Human Providers’ Workplace for Civil Rights (“OCR”) issued a joint letter (“Joint Letter”) (https://www.ftc.gov/system/recordsdata/ftc_gov/pdf/FTC-OCR-Letter-Third-Get together-Trackers-07-20-2023.pdf) to roughly 130 hospitals and telehealth suppliers, warning that on-line monitoring applied sciences built-in into their web sites and/or cellular apps could also be improperly disclosing private well being information to 3rd events.
Expertise resembling Google Analytics and Meta/Fb Pixel can observe a consumer’s on-line actions which, unbeknownst to the consumer, could collect personally identifiable info. In case you are a lined entity or enterprise affiliate (a “regulated entity”) below HIPAA, you have to adjust to the HIPAA Privateness, Safety, and Breach Notification Guidelines, with regard to protected well being info (“PHI”) that’s transmitted or maintained in digital or another type or medium. Below HIPAA, impermissible makes use of/disclosures are presumed to be a reportable breach except it may be demonstrated that there’s a low likelihood of compromise when thought of below the 4 components set forth at 45 C.F.R. 164.402.
Impermissibly disclosed info could vary from a client’s looking historical past on a regulated entity’s webpage, which will not be a reportable breach if a willpower is made that there’s a low likelihood that the buyer’s PHI was compromised, to one thing extra delicate such because the disclosure of a affected person’s well being situations, diagnoses, drugs, medical therapies, frequency of visits to well being care professionals, and the place a person seeks medical therapy. Such disclosures can lead to monetary loss, stigma, discrimination, psychological anguish, or id theft, amongst many different potential repercussions. It must be famous that in December 2022, OCR issued a bulletin which, amongst different issues, cautioned that regulated entities will not be permitted to make use of monitoring applied sciences in a way that will lead to impermissible disclosures of PHI to monitoring expertise distributors. The Joint Letter serves as a reinforcement of the warnings made final yr. The American Hospital Affiliation (“AHA”) submitted feedback to OCR lately asking that they rethink the place taken within the December 1, 2022 Bulletin. Particularly, the AHA believes that the steering is just too broad and can lead to vital hostile penalties for hospitals, sufferers and the general public at massive, and that by treating an IP deal with as PHI below HIPAA, public entry to credible well being info can be diminished.
The federal government letter warned that even when an entity isn’t lined by HIPAA, it nonetheless has an obligation to guard in opposition to impermissible disclosures of private well being info below the FTC Act. That is true even when a 3rd occasion developed the web site or cellular app and even when the knowledge obtained via use of a monitoring expertise isn’t used for any advertising and marketing functions. The FTC and OCR strongly urged monitoring of information flows to 3rd events by way of applied sciences built-in into web sites, and warned that disclosure of such info with no client’s authorization can, in some circumstances, violate the FTC Act in addition to represent a breach of safety below the FTC’s Well being Breach Notification Rule.
You possibly can see Fox Rothschild attorneys’ associated posts right here:
Odia Kagan’s Submit on Third-Get together Trackers’ Dangers (July 2022): Watch out for Third-Get together Trackers Like Meta Pixel. Ignoring Them May Be Pricey. | HIPAA & Well being Data Expertise (foxrothschild.com)
Elizabeth Litten’s Submit on OCR’s December 2022 Bulletin (December 2022): OCR Warns Suppliers About Affected person Knowledge Trackers | HIPAA & Well being Data Expertise (foxrothschild.com)
Elizabeth Litten’s Submit on the FTC’s Grievance Alleging that BetterHelp Engaged in Unfair and Unreasonable Privateness Practices (March 2023): Higher Hold Well being Knowledge Non-public, FTC Indicators to On-Line Well being Care Suppliers | HIPAA & Well being Data Expertise (foxrothschild.com)
