In case you are concerned with any well being data, even in case you are not coated by HIPAA, you need 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 cell 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/information/ftc_gov/pdf/FTC-OCR-Letter-Third-Social gathering-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 cell apps could also be improperly disclosing private well being information to 3rd events.
Know-how akin to Google Analytics and Meta/Fb Pixel can observe a consumer’s on-line actions which, unbeknownst to the consumer, could collect personally identifiable data. In case you are a coated entity or enterprise affiliate (a “regulated entity”) beneath HIPAA, it’s essential 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 until it may be demonstrated that there’s a low likelihood of compromise when thought of beneath the 4 components set forth at 45 C.F.R. 164.402.
Impermissibly disclosed data could vary from a client’s shopping 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 remedy. Such disclosures may end up in monetary loss, stigma, discrimination, psychological anguish, or id theft, amongst many different potential repercussions. It needs to be famous that in December 2022, OCR issued a bulletin which, amongst different issues, cautioned that regulated entities should not permitted to make use of monitoring applied sciences in a way that might end in impermissible disclosures of PHI to monitoring know-how distributors. The Joint Letter serves as a reinforcement of the warnings made final yr. 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 steering is just too broad and can end in vital opposed penalties for hospitals, sufferers and the general public at massive, and that by treating an IP deal with as PHI beneath HIPAA, public entry to credible well being data might be diminished.
The federal government letter warned that even when an entity shouldn’t be coated 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 celebration developed the web site or cell app and even when the knowledge obtained by way of use of a monitoring know-how shouldn’t be 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 and not using 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’ll be able to see Fox Rothschild attorneys’ associated posts right here:
Odia Kagan’s Submit on Third-Social gathering Trackers’ Dangers (July 2022): Watch out for Third-Social gathering Trackers Like Meta Pixel. Ignoring Them Might Be Expensive. | HIPAA & Well being Data Know-how (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 Know-how (foxrothschild.com)
Elizabeth Litten’s Submit on the FTC’s Grievance Alleging that BetterHelp Engaged in Unfair and Unreasonable Privateness Practices (March 2023): Higher Maintain Well being Knowledge Non-public, FTC Indicators to On-Line Well being Care Suppliers | HIPAA & Well being Data Know-how (foxrothschild.com)
