If you’re concerned with any well being data, even if you’re not lined by HIPAA, you need to be conscious of the federal government’s latest place that there could also be severe privateness and severe dangers with use of on-line monitoring applied sciences that could be current on an internet site or cellular app that tracks client delicate private well being data.  Final week, the Federal Commerce Fee (“FTC”) and the U.S. Division of Well being and Human Companies’ 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.
Know-how comparable to Google Analytics and Meta/Fb Pixel can observe a person’s on-line actions which, unbeknownst to the person, could collect personally identifiable data. If you’re a lined entity or enterprise affiliate (a “regulated entity”) beneath HIPAA, you need to adjust to the HIPAA Privateness, Safety, and Breach Notification Guidelines, with regard to protected well being data (“PHI”) that’s transmitted or maintained in digital or another kind or medium.  Underneath 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 beneath the 4 elements set forth at 45 C.F.R. 164.402.Â
Impermissibly disclosed data could vary from a client’s searching 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 circumstances, diagnoses, medicines, medical remedies, frequency of visits to well being care professionals, and the place a person seeks medical therapy. Such disclosures may end up in monetary loss, stigma, discrimination, psychological anguish, or id theft, amongst many different potential repercussions. It ought to be famous that in December 2022, OCR issued a bulletin which, amongst different issues, cautioned that regulated entities usually are not permitted to make use of monitoring applied sciences in a fashion that may end in impermissible disclosures of PHI to monitoring expertise distributors. The Joint Letter serves as a reinforcement of the warnings made final 12 months. The American Hospital Affiliation (“AHA”) submitted feedback to OCR just lately asking that they rethink the place taken within the December 1, 2022 Bulletin. Particularly, the AHA believes that the steerage is simply too broad and can end in important antagonistic penalties for hospitals, sufferers and the general public at massive, and that by treating an IP tackle as PHI beneath HIPAA, public entry to credible well being data will probably be diminished.
The federal government letter warned that even when an entity just isn’t lined by HIPAA, it nonetheless has an obligation to guard in opposition to impermissible disclosures of non-public well being data beneath the FTC Act. That is true even when a 3rd get together developed the web site or cellular app and even when the data obtained by means of use of a monitoring expertise just isn’t used for any advertising and marketing functions. The FTC and OCR strongly urged monitoring of knowledge flows to 3rd events by way of applied sciences built-in into web sites, and warned that disclosure of such data with out a client’s authorization can, in some circumstances, violate the FTC Act in addition to represent a breach of safety beneath the FTC’s Well being Breach Notification Rule.
You possibly can see Fox Rothschild attorneys’ associated posts right here:
Odia Kagan’s Publish 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 Know-how (foxrothschild.com)
Elizabeth Litten’s Publish on OCR’s December 2022 Bulletin (December 2022): OCR Warns Suppliers About Affected person Knowledge Trackers | HIPAA & Well being Data Know-how (foxrothschild.com)
Elizabeth Litten’s Publish on the FTC’s Criticism Alleging that BetterHelp Engaged in Unfair and Unreasonable Privateness Practices (March 2023): Higher Preserve Well being Knowledge Non-public, FTC Indicators to On-Line Well being Care Suppliers | HIPAA & Well being Data Know-how (foxrothschild.com)
