The American Hospital Association (AHA), along with the Texas Hospital Association and two nonprofit Texas health systems, filed a lawsuit against the US Department of Health and Human Services (HHS) on Thursday, challenging the Biden administration's recent guidance that bars hospitals and medical providers from using website trackers (via Reuters).
The lawsuit alleges that HHS overstepped its authority when it issued the guidance in December, and it has sparked a debate around privacy, healthcare transparency, and the use of technology in the medical sector.
A US Army veteran with Covid-19 is treated by a medical worker in a negative pressure room in the COVID-19 ward at the US Department of Veterans Affairs (VA) Boston Healthcare system campus and medical center in West Roxbury, Massachusetts on January 11, 2022
A Closer Look
The controversy revolves around the use of third-party technology companies, such as Google and Meta, to collect and analyze internet protocol (IP) addresses and other information from visitors to public-facing websites or apps of healthcare providers.
The guidance warns that such data collection could potentially violate the Health Insurance Portability and Accountability Act (HIPAA), a federal law designed to safeguard individuals' private health information.
Chad Golder, AHA Deputy General Counsel, emphasized the severity of the issue, stating that the HHS has initiated several enforcement actions under this guidance, which could result in substantial fines for hospitals and medical providers.
Violating HIPAA can lead to fines, with each IP address disclosed to a third party potentially incurring penalties, according to HHS.
This has already led to proposed class action lawsuits against several hospitals, accusing them of mishandling personal health information through the use of these trackers.
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Third-Party Web Trackers
The heart of the lawsuit lies in the classification of the information collected by third-party trackers. The AHA and its co-plaintiffs are seeking a declaration that this data is not "individually identifiable health information," a classification that falls under the protection of HIPAA.
Furthermore, they are requesting a permanent injunction to prevent HHS from enforcing the guidance. As of now, HHS has not issued a comment in response to the lawsuit.
It is important to note that the HHS guidance applies exclusively to public-facing websites and apps, exempting patient portals and sites secured by passwords.
The bulletin issued by the HHS Office of Civil Rights highlights concerns over the proliferation of trackers on healthcare websites, which can potentially expose sensitive patient data, including diagnoses and medical visit frequencies.
This exposure poses significant risks, such as identity theft, discrimination, and other consequences, warranting the need for regulatory intervention.
The AHA and its co-plaintiffs argue that they employ trackers for legitimate purposes, such as videos about health conditions, translation tools for website content, and mapping technology to help potential patients find their locations.
The lawsuit asserts that implementing the guidance would compel healthcare providers to remove these tools, potentially limiting the information they can share with the public.
One critical argument made by the plaintiffs is that the guidance was introduced without allowing medical providers and industry stakeholders to provide feedback or engage in a dialogue with HHS.
According to Golder, the AHA decided to file the lawsuit after several months of unsuccessful attempts to communicate with HHS regarding their concerns.
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