OCR Warns Suppliers About Affected person Information Trackers

Earlier this week, our Fox accomplice Odia Kagan spoke on HIMSS TV in regards to the dangers related to what could also be a “blind spot” in your knowledge privateness compliance efforts: using knowledge trackers (resembling cookies, monitoring pixels, session replay scripts) on firm web sites or apps. This blind spot is especially perilous when the information being tracked is affected person medical info or different private knowledge topic to knowledge privateness legal guidelines. Maybe the HIPAA regulators have been listening.

Yesterday, the U.S. Division of Well being and Human Companies (HHS) Workplace for Civil Rights (OCR) printed a Bulletin warning HIPAA coated entities and enterprise associates about using monitoring applied sciences which will acquire protected well being info (PHI) in violation of HIPAA. The Bulletin is a complete description of how and when affected person knowledge trackers current HIPAA compliance hurdles. Just a few good take-aways::

1. Be sure to have a enterprise affiliate settlement (BAA) in place with any firm (together with an information monitoring firm) that may entry and use protected well being info
2. Even trackers on unauthenticated webpages (these not requiring person log-in) might acquire PHI. As per OCR: “Monitoring applied sciences on a regulated entity’s unauthenticated webpage that addresses particular signs or well being circumstances, resembling being pregnant or miscarriage, or that allows people to seek for docs or schedule appointments with out getting into credentials might have entry to PHI in sure circumstances. For instance, monitoring applied sciences may acquire a person’s electronic mail tackle and/or IP tackle when the person visits a regulated entity’s webpage to seek for out there appointments with a well being care supplier. On this instance, the regulated entity is disclosing PHI to the monitoring know-how vendor, and thus the HIPAA Guidelines apply.”
3. It’s not ok to have the monitoring know-how take away or de-identify the PHI it collects: “[i]t is inadequate for a monitoring know-how vendor to conform to take away PHI from the knowledge it receives or de-identify the PHI earlier than the seller saves the knowledge. Any disclosure of PHI to the seller with out people’ authorizations requires the seller to have a signed BAA in place and requires that there’s an relevant Privateness Rule permission for disclosure.”
4. Do not forget that even an IP tackle alone might be PHI when collected on a coated entity or enterprise web site or app: “Regulated entities disclose a wide range of info to monitoring know-how distributors by way of monitoring applied sciences positioned on a regulated entity’s web site or cell app, together with individually identifiable well being info (IIHI) that the person supplies once they use regulated entities’ web sites or cell apps. This info may embody a person’s medical file quantity, house or electronic mail tackle, or dates of appointments, in addition to a person’s IP tackle or geographic location, medical machine IDs, or any distinctive figuring out code. All such IIHI collected on a regulated entity’s web site or cell app typically is PHI, even when the person doesn’t have an present relationship with the regulated entity and even when the IIHI, resembling IP tackle or geographic location, doesn’t embody particular therapy or billing info like dates and varieties of well being care companies.”