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Thursday, September 14, 2023

OCR Warns Suppliers About Affected person Knowledge Trackers

Earlier this week, our Fox companion Odia Kagan spoke on HIMSS TV concerning the dangers related to what could also be a “blind spot” in your information privateness compliance efforts: the usage of information 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 data or different private information topic to information privateness legal guidelines. Maybe the HIPAA regulators had been listening.

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

  1. Be sure to have a enterprise affiliate settlement (BAA) in place with any firm (together with a knowledge monitoring firm) that may entry and use protected well being data
  2. Even trackers on unauthenticated webpages (these not requiring consumer log-in) could acquire PHI. As per OCR: “Monitoring applied sciences on a regulated entity’s unauthenticated webpage that addresses particular signs or well being situations, resembling being pregnant or miscarriage, or that allows people to seek for docs or schedule appointments with out getting into credentials could have entry to PHI in sure circumstances. For instance, monitoring applied sciences might 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 expertise vendor, and thus the HIPAA Guidelines apply.”
  3. It’s not adequate to have the monitoring expertise take away or de-identify the PHI it collects: “[i]t is inadequate for a monitoring expertise vendor to comply with 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 may be PHI when collected on a coated entity or enterprise web site or app: “Regulated entities disclose a wide range of data to monitoring expertise distributors by monitoring applied sciences positioned on a regulated entity’s web site or cell app, together with individually identifiable well being data (IIHI) that the person supplies once they use regulated entities’ web sites or cell apps. This data may embrace a person’s medical report quantity, dwelling or electronic mail tackle, or dates of appointments, in addition to a person’s IP tackle or geographic location, medical system IDs, or any distinctive figuring out code. All such IIHI collected on a regulated entity’s web site or cell app usually is PHI, even when the person doesn’t have an current relationship with the regulated entity and even when the IIHI, resembling IP tackle or geographic location, doesn’t embrace particular remedy or billing data like dates and varieties of well being care companies.”

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