On March 18, the Office for Civil Rights of the U.S. Department of Health and Human Services issued a Bulletin updating its guidance to HIPAA-covered entities and business associates on the use of tracking technology on websites and mobile apps.

The Bulletin supplements the original guidance published by OCR in December 2022.

According to the Bulletin,

Regulated entities are not permitted to use tracking technologies in a manner that would result in impermissible disclosures of protected health information (PHI) to tracking technology vendors or any other violations of the HIPAA Rules. For example, disclosures of PHI to tracking technology vendors for marketing purposes without individuals’ HIPAA-compliant authorizations would constitute impermissible disclosures.

The Bulletin then provides several unhelpful examples of when the use of tracking technologies, in OCR’s view, may capture PHI, even if an individual is a patient or not. Although we appreciate that OCR is struggling with this new issue (brought to the forefront by class action litigation), so also are health care entities. Capturing an IP address randomly roaming a health care entity’s website and suggesting that a health care entity knows why an IP is visiting the website is unrealistic. Unfortunately, health care entities will continue to struggle with this issue despite the issuance of the Bulletin.

Photo of Linn Foster Freedman Linn Foster Freedman

Linn Freedman practices in data privacy and security law, cybersecurity, and complex litigation. She is a member of the Business Litigation Group and the Financial Services Cyber-Compliance Team, and chair’s the firm’s Data Privacy and Security Team. Linn focuses her practice on…

Linn Freedman practices in data privacy and security law, cybersecurity, and complex litigation. She is a member of the Business Litigation Group and the Financial Services Cyber-Compliance Team, and chair’s the firm’s Data Privacy and Security Team. Linn focuses her practice on compliance with all state and federal privacy and security laws and regulations. She counsels a range of public and private clients from industries such as construction, education, health care, insurance, manufacturing, real estate, utilities and critical infrastructure, marine and charitable organizations, on state and federal data privacy and security investigations, as well as emergency data breach response and mitigation. Linn is an Adjunct Professor of the Practice of Cybersecurity at Brown University and an Adjunct Professor of Law at Roger Williams University School of Law.  Prior to joining the firm, Linn served as assistant attorney general and deputy chief of the Civil Division of the Attorney General’s Office for the State of Rhode Island. She earned her J.D. from Loyola University School of Law and her B.A., with honors, in American Studies from Newcomb College of Tulane University. She is admitted to practice law in Massachusetts and Rhode Island. Read her full rc.com bio here.