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.