Business associate agreements (BAAs) contribute to transparency and accountability in data management practices by establishing clear contractual obligations regarding data protection. Oversight allows specific mechanisms used by third parties, like online tracking technologies, to be controlled if they pose a risk to patient data.
The legislation governing online tracking
OCR guidance about online tracking
In December 2022, the Office for Civil Rights (OCR) issued updated guidance specifically addressing the implications of online tracking technologies under HIPAA. The guidance clarified that HIPAA covered entities need to make sure any tracking technology used does not result in impermissible disclosures of PHI to third parties.
For example, if a tracking technology collects identifiable data such as IP addresses or email addresses linked to health information, it could violate HIPAA. The guidance provided that consent must be obtained from individuals before their information is transmitted to third parties, and a BAA must be in place with any vendor handling the data.
Federal court ruling
In June 2024, a federal court ruled that the OCR's guidance was unlawful, stating it overstepped legal authority by broadly interpreting what constitutes individually identifiable health information. The ruling showed the tension between regulatory oversight and the practicalities of using digital tools in healthcare marketing and operations.
The court's decision suggested that certain types of metadata collected through online tracking may not necessarily meet the definition of PHI under HIPAA when specific conditions are met. As a result, healthcare organizations may find themselves with more leeway to use tools like Google Analytics without violating HIPAA.
The trouble with online tracking in business associates
Tracking technologies can gather different data points, like IP addresses, browsing behavior, and login information, that when combined with health related data, can constitute protected health information (PHI). This creates one of the main challenges with online tracking in business associates; there is an adverse risk of a data breach if this information is not carefully controlled and protected. Once sent to third-party servers without adequate security measures or proper agreements it increases the chances of the risk.
The ambiguity surrounding which data points are considered PHI can also lead to confusion and mismanagement of sensitive information. For example, while a recent ruling suggested that IP addresses might not always be classified as PHI under certain circumstances, this does not eliminate the need for caution when using tracking technologies.
How BAAs help control the use of online tracking
- BAAs establish a legal framework between healthcare providers and vendors using online tracking technologies.
- They ensure that third-party vendors understand their responsibilities in protecting PHI.
- BAAs require vendors to implement safeguards like using HIPAA compliant email to prevent unauthorized access to PHI collected through tracking.
- They specify the permitted uses and disclosures of PHI, limiting how vendors can handle patient data.
- BAAs mandate that vendors report any security incidents involving PHI to the healthcare provider promptly.
- They help ensure compliance with HIPAA regulations, reducing the risk of legal penalties for healthcare organizations.
- BAAs promote transparency in data handling practices, fostering trust between patients and healthcare providers.
- They reinforce the "minimum necessary" standard by ensuring only essential PHI is collected and shared through tracking technologies.
- BAAs facilitate audits and oversight of vendor practices regarding the handling of PHI, enhancing accountability.
- They protect healthcare organizations from liability by clearly defining the roles and responsibilities of each party involved in data management.
FAQs
What is online tracking technology?
Online tracking technology refers to tools and methods used to collect, analyze, and store data about users' interactions with websites or mobile applications. This includes technologies like cookies, pixels, and scripts that monitor user behavior.
How does online tracking work?
Online tracking works by embedding code on web pages or apps that collect data when users interact with them.
What are the implications of using cookies on healthcare websites?
Cookies can enhance user experience by remembering preferences but may also pose risks if they collect PHI without proper safeguards and consent from users.
Kirsten Peremore
