If you’re concerned with any well being info, 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 severe privateness and severe dangers with use of on-line monitoring applied sciences that could be current on an internet site or cell app that tracks shopper delicate private well being info. 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-Occasion-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 knowledge to 3rd events.
Know-how comparable to Google Analytics and Meta/Fb Pixel can observe a consumer’s on-line actions which, unbeknownst to the consumer, could collect personally identifiable info. If you’re a coated entity or enterprise affiliate (a “regulated entity”) underneath HIPAA, you could 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 every other type or medium. Below HIPAA, impermissible makes use of/disclosures are presumed to be a reportable breach until it may be demonstrated that there’s a low chance of compromise when thought of underneath the 4 elements set forth at 45 C.F.R. 164.402.
Impermissibly disclosed info could vary from a shopper’s looking historical past on a regulated entity’s webpage, which will not be a reportable breach if a dedication is made that there’s a low chance 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, drugs, 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 needs 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 might lead to 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 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 adversarial penalties for hospitals, sufferers and the general public at massive, and that by treating an IP deal with as PHI underneath HIPAA, public entry to credible well being info might be diminished.
The federal government letter warned that even when an entity is just not coated by HIPAA, it nonetheless has an obligation to guard towards impermissible disclosures of non-public well being info underneath the FTC Act. That is true even when a 3rd social gathering developed the web site or cell app and even when the knowledge obtained by way of use of a monitoring know-how is just not 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 info and not using a shopper’s authorization can, in some circumstances, violate the FTC Act in addition to represent a breach of safety underneath the FTC’s Well being Breach Notification Rule.
You possibly can see Fox Rothschild attorneys’ associated posts right here:
Odia Kagan’s Put up on Third-Occasion Trackers’ Dangers (July 2022): Watch out for Third-Occasion Trackers Like Meta Pixel. Ignoring Them Might Be Pricey. | HIPAA & Well being Info Know-how (foxrothschild.com)
Elizabeth Litten’s Put up on OCR’s December 2022 Bulletin (December 2022): OCR Warns Suppliers About Affected person Knowledge Trackers | HIPAA & Well being Info Know-how (foxrothschild.com)
Elizabeth Litten’s Put up on the FTC’s Grievance 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 Info Know-how (foxrothschild.com)
