In case you are concerned with any well being info, even in case you are not coated by HIPAA, you have 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 which may be current on a web site or cellular 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 Providers’ 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 cellular apps could also be improperly disclosing private well being information to 3rd events.
Expertise 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 info. In case you are a coated entity or enterprise affiliate (a “regulated entity”) below HIPAA, you should 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 some other type or medium. Beneath 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-about below the 4 elements set forth at 45 C.F.R. 164.402.
Impermissibly disclosed info could vary from a shopper’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, 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 identification 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 way 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 just too broad and can end in important adversarial penalties for hospitals, sufferers and the general public at massive, and that by treating an IP tackle as PHI below HIPAA, public entry to credible well being info will probably be decreased.
The federal government letter warned that even when an entity just isn’t coated by HIPAA, it nonetheless has an obligation to guard in opposition to impermissible disclosures of non-public 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 by use of a monitoring expertise just isn’t used for any advertising functions. The FTC and OCR strongly urged monitoring of information flows to 3rd events through 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 below the FTC’s Well being Breach Notification Rule.
You may see Fox Rothschild attorneys’ associated posts right here:
Odia Kagan’s Put up on Third-Social gathering Trackers’ Dangers (July 2022): Watch out for Third-Social gathering Trackers Like Meta Pixel. Ignoring Them May Be Expensive. | HIPAA & Well being Info Expertise (foxrothschild.com)
Elizabeth Litten’s Put up on OCR’s December 2022 Bulletin (December 2022): OCR Warns Suppliers About Affected person Information Trackers | HIPAA & Well being Info Expertise (foxrothschild.com)
Elizabeth Litten’s Put up on the FTC’s Criticism Alleging that BetterHelp Engaged in Unfair and Unreasonable Privateness Practices (March 2023): Higher Preserve Well being Information Non-public, FTC Alerts to On-Line Well being Care Suppliers | HIPAA & Well being Info Expertise (foxrothschild.com)