Online tracking technology has caused a lot of speculation on what is acceptable or not. Here is a recap in case you missed the ruling last year.
Background & Baseline: HIPAA and Online Tracking
- The OCR cautioned that certain online tracking technologies (ads, analytical tools, pixels) could potentially collect or disclose personal identifiable health information which is a violation of HIPAA.
- The OCR and the Federal Trade Commission (FTC) in July 2023 sent letters to hospitals and telehealth organizations, warning of risks where third-party trackers (Google Analytics, Meta Pixel) might be sharing “sensitive health information” outside permitted guidelines of HIPAA.
The core concern: even data collected “passively” (IP addresses, page paths, query strings, referrers) may, in some scenarios, become linked (or inferred) to health conditions or services, thereby turning into PHI (protected health information).
The 2024 OCR “Online Tracking Technologies” Bulletin & Its Revision
- In March 2024, OCR clarified how covered entities and business associates should consider HIPAA when using online tracking technologies.
- Key elements of the revised guidance include:
- Entities may use online tracking technologies only when such use does not lead to impermissible disclosures of PHI. If sharing PHI with a tracking vendor is necessary, it must occur under a valid Business Associate Agreement (BAA) or through patient authorization, and it must comply fully with HIPAA requirements.
- If a vendor is unwilling or unable to sign a BAA, one option is to de-identify or aggregate the data before sharing it, ensuring it no longer qualifies as PHI.
- The updated guidance recognizes the complexities of tracking activities on unauthenticated pages (those that do not require a login) and offers greater nuance on when such tracking may involve PHI.
Court Vacates Part of the OCR Guidance
- In June 2024, a federal court in the Northern Texas removed part of OCR’s “Use of Online Tracking Technologies” guidance. The court determined that OCR exceeded its statutory authority by applying HIPAA to metadata—such as IP addresses—associated with user visits to unauthenticated webpages and by interpreting “individually identifiable health information (IIHI)” too broadly.
- Specifically, the court invalidated the section of OCR’s guidance that presumed a combination of (1) a user’s IP address and (2) a visit to a public healthcare-related webpage automatically constituted IIHI or PHI, without considering additional context.
- However, the court did not strike down the entire guidance; provisions related to authenticated user interactions. Such as patient portal logins remain in effect.
- Following the ruling, HHS voluntarily withdrew its appeal in August 2024. As a result, the court’s decision remains in effect, restricting OCR’s authority in this area.
In practical terms, the ruling relaxes some of the overbroad constraints that the OCR attempted to impose on tracking in public (unauthenticated) settings but does not eliminate HIPAA obligations or the risk from misuse of tracking tools.
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