The OCR and FTC are investigating online tracking technologies

We wrote about this back in December 2022, but the Office for Civil Rights (OCR) and the Federal Trade Commission (FTC) has added an additional warning. The OCR has confirmed its active investigations nationwide to ensure compliance with HIPAA. The use of online tracking technologies and HIPAA requirements must be reviewed on all medical websites.

The OCR and the FTC are cautioning providers about the privacy and security risks when utilizing online tracking technologies. These may be integrated into websites or mobile apps. Depending on how they are created and set up, these technologies may be disclosing personal health information to third parties. Tracking technologies collect and analyze information when visitors use websites or apps. Most of the time, this information is shared directly with third parties and even track the visitor when they navigate away from the website or app.

Online tracking technology can be used for good, but patients should not have to sacrifice their personal information in the process. The OCR and FTC sent letters to 130 hospital systems and telehealth providers to emphasize the risks and concerns about the use of these technologies, such as the Meta/Facebook pixel and Google Analytics. These are just a couple that are known to track a user’s online activities. These tracking technologies gather identifiable information about visitors, usually without their knowledge.

The minimum necessary rule must be followed even with modern technology. This means only the minimum necessary information can be shared to complete the task, nothing more. The OCR enforces the HIPAA rules and will review all aspects of your compliance if they receive a complaint, or if you have a data breach. 

The FTC’s role in is protecting the public from deceptive or unfair business practices. This includes unfair methods of competition, promotion, research, and education. Through FTC’s recent enforcement actions against BetterHelp, GoodRx, and Premom, the FTC has put companies on notice that they must monitor the flow of health information to third parties that use tracking technologies integrated into websites and apps. The unauthorized disclosure of such information may violate the FTC Act and could constitute a breach of security under the FTC’s Health Breach Notification Rule.

Companies not covered by HIPAA still have a responsibility to protect against the unauthorized disclosure of personal health information—even when a third party developed their website or mobile app. When working with a website designer or marketing group, be sure to fully vet them for their HIPAA compliance efforts. Even if they have worked with other medical practices. Being HIPAA compliant is more complicated now with all the modern technology and they must jump through the same hoops as a medical practice. Just because they say it will help you with your practice, doesn’t mean it is acceptable under the HIPAA rules. Trust but verify!

Aris Medical Solutions has an online system called the HIPAA Keeper™, to help covered entities and business associates get compliant and stay compliant with HIPAA!

Or to schedule a demo click the contact us tab and scroll down.

“Simplifying HIPAA through Automation, Education, and Support”

To read about actual HIPAA fines, click on our Education tab!

Do you know what it means to be HIPAA compliant?

Be careful what you post on your website, you could be charged for false advertising! Some HIPAA compliance companies want you to use their “seal” of compliance. It is great advertising for them, but does it put your practice at risk of an audit? Some say yes, and worse, you could be charged for false advertising from the FTC.

https://www.ftc.gov/news-events/press-releases/2021/02/ftc-gives-final-approval-settlement-emergency-travel-services

https://www.ftc.gov/system/files/documents/cases/c-4732_skymed_final_order.pdf

HIPAA is a moving target and at any given moment you could be “out of compliance” for something as simple as using a device that hasn’t been updated with latest security patch. Of course, you won’t get fined for that, UNLESS it causes a data breach. So, to advertise that your organization is “HIPAA Compliant” could put you at risk for false advertising.

It has always been all about “documentation”. The HIPAA rules clearly outline the requirements for policies, procedures, and documentation. If your organization has not been evaluating (§164.308(a)(8)) the technical and non-technical security measures you have in place on a regular basis, you are out of compliance. How do you know when to conduct these evaluations? This depends on your policies, and if you do not have a policy on this, you are out of compliance. As you can see, this can be very confusing! Did you know that 75% of the Security Rule is policies and procedures, and 25% is technical safeguards? With Public Law No: 116-321, it is all about your documentation.

If the covered entity or business associate has adequately demonstrated that it had, for not less than the previous 12 months, recognized security practices in place that may:

(1) mitigate fines under section 1176 of the Social

        Security Act (as amended by section 13410);

(2) result in the early, favorable termination of an audit

        under section 13411; and

(3) mitigate the remedies that would otherwise be agreed

        to in any agreement with respect to resolving potential

        violations of the HIPAA Security rule (part 160 of title 45 Code

        of Federal Regulations and subparts A and C of part 164 of such

        title) between the covered entity or business associate and the

        Department of Health and Human Services.

Recognized security practices are those recommended in NIST and the Security Rule. Each organization must assess their environment and adapt “best practices”.

Most organizations think they are HIPAA compliant until they suffer a data breach, or a disgruntled employee / patient files a complaint against them. Then they are investigated by the Office for Civil Rights (OCR), unless they have proper documentation and have demonstrated best practices in data security, they may be fined up to $1.5M per violation.

This healthcare cybersecurity handout was created by the DHHS:

https://www.phe.gov/Preparedness/planning/405d/Documents/HICP-Main-508.pdf

To find out more about how our online HIPAA Keeper™ can help your organization with HIPAA Compliance click here:

https://arismedicalsolutions.com/aris-hipaa-compliance-system-for-medical-offices/

Or to schedule a demo click the contact us tab and scroll down.

“Simplifying HIPAA through Automation, Education, and Support”

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