From Morgan Lewis, by W. Reece Hirsch, Amy M. Magnano, Michael J. Madderra, Sydney Reed Swanson:
The US Department of Health and Human Services’ (HHS’s) Office for Civil Rights (OCR) updated its guidance on the use of online tracking technologies, causing further uncertainty for HIPAA-covered entities. OCR acknowledges that tracking technologies, such as cookies and web beacons, can unintentionally capture protected health information (PHI), thus implicating HIPAA. The updated guidance states that individually identifiable health information (IIHI) collected on a regulated entity’s website or app is generally considered PHI, even without specific treatment or billing details. The guidance differentiates between authenticated and unauthenticated pages, warning that PHI could be accessible even on unauthenticated pages. The update presents a compliance challenge for HIPAA-regulated entities, as discerning the subjective intent of website visitors is difficult, and entities must also consider other federal and state laws where HIPAA does not apply.