No Result
View All Result
SUBSCRIBE | NO FEES, NO PAYWALLS
MANAGE MY SUBSCRIPTION
NEWSLETTER
Corporate Compliance Insights
  • Home
  • About
    • About CCI
    • CCI Magazine
    • Writing for CCI
    • Career Connection
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Explore Topics
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Well-Being at Work
    • Leadership and Career
    • Opinion
  • Vendor News
  • Library
    • Download Whitepapers & Reports
    • Download eBooks
    • New: Living Your Best Compliance Life by Mary Shirley
    • New: Ethics and Compliance for Humans by Adam Balfour
    • 2021: Raise Your Game, Not Your Voice by Lentini-Walker & Tschida
    • CCI Press & Compliance Bookshelf
  • Podcasts
    • Great Women in Compliance
    • Unless: The Podcast (Hemma Lomax)
  • Research
  • Webinars
  • Events
  • Subscribe
Jump to a Section
  • At the Office
    • Ethics
    • HR Compliance
    • Leadership & Career
    • Well-Being at Work
  • Compliance & Risk
    • Compliance
    • FCPA
    • Fraud
    • Risk
  • Finserv & Audit
    • Financial Services
    • Internal Audit
  • Governance
    • ESG
    • Getting Governance Right
  • Infosec
    • Cybersecurity
    • Data Privacy
  • Opinion
    • Adam Balfour
    • Jim DeLoach
    • Mary Shirley
    • Yan Tougas
No Result
View All Result
Corporate Compliance Insights
Home Compliance

What HIPAA-Covered Entities & Other Companies Need to Know About Cookies & Tracking Tech

New state laws seek to regulate collecting of health data

by Steve Britt
October 21, 2024
in Compliance
paper medical records

How do online tracking technologies impact compliance related to collecting health data, and how can businesses that are not regulated by HIPAA ensure they don’t run afoul of state laws that regulate health data collected through the use of these technologies? Steve Britt, a technology lawyer, provides some insight.

In March, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights issued a bulletin about the use of online tracking technologies by HIPAA-regulated entities resulting in the disclosure of protected health information (PHI).

Tracking technology is a script, code or pixel embedded in a website or mobile app that gathers information on online visitors. It includes cookies, beacons, pixels, software development kits (SDKs) and session replay scripts.

These tools can have several benefits, but since they collect device and advertising IDs, they permit a third party to track users across unrelated websites. Often the owner of the site does not even realize that these tools are installed or, after attempting to turn them off, does not realize they are still operating in the background.

Information collected on a HIPAA-regulated site can constitute PHI if it relates to the user’s past, present or future health, healthcare services or payment for healthcare. Under HHS guidelines, the determination of whether electronic health information constitutes PHI can turn on whether the user had to authenticate (i.e., log in to) those webpages to access the information and whether the user’s purpose in accessing the webpage related to the user’s past, present or future healthcare.

If PHI is deemed to have been accessed through the site, the covered entity must comply with HIPAA privacy and security rules. If the third-party recipient of the tracking data is a business associate, then the covered entity must have entered into a business associate agreement with such entity.

If that were not complicated enough, consumer health data is a new category of health data under several new state laws. It expressly excludes PHI since the business collecting this information is not a HIPAA-covered entity. The purpose of these new laws is to regulate health data collected by the thousands of commercial entities that are not regulated by HIPAA.

medical records hipaa
Compliance

HIPAA’s Privacy Rule Is 20 Years Old. Why Do Organizations Keep Breaking It?

by Staff and Wire Reports
June 28, 2023

Read moreDetails

While not PHI, this information constitutes sensitive personal information under state data privacy laws, triggering a different set of compliance obligations, such as the duty to:

  • Secure the user’s affirmative opt-in consent to the collection of such data or the duty to grant the user a right to opt out of such collection and use
  • Provide reasonable security of such data
  • Execute a restrictive data protection agreement with the third-party recipient of the tracking data (rather than a business associate agreement)
  • Comply with the Federal Trade Commission’s (FTC) health breach notification rule, which can treat the unauthorized disclosure of this data as a data breach

As proof of the legal risks of tracking, on July 30 the New York state attorney general published a guide for businesses on website privacy controls that confirms that privacy controls and online tracking are subject to New York’s consumer protection laws (even though New York does not yet have a comprehensive data privacy statute). It followed a recent investigation of e-commerce retailers that found that privacy controls used by retailers did not work as described, cookie notices were mislabeled, tools were misconfigured and the effect of cookie opt-outs was misrepresented when tracking was not actually disabled. The attorney general’s office made clear that the use of tracking technologies is a continuing enforcement priority.

Moreover, the use of tracking technology has triggered 50 class-action lawsuits against hospitals and health care providers under the Video Privacy Protection Act, federal and state wiretapping laws and common law privacy rights. The FTC has issued fines ranging from $1.5 million to nearly $8 million against companies in the healthcare industry, and patient class-actions against health systems have settled for as much $12 million.

Key takeaways

All businesses should determine whether they are using tracking technologies on their websites and mobile apps. HIPAA-regulated entities should specifically determine if tracking is being used in association with health-related services, treatments or payments. Best practices include the following:

  • Companies should have their own engineers review the code and operation of tracking technologies to see if cookies, pixels and beacons “fire” for online visits and where the outputs are sent. Do not blindly trust your vendor.
  • Analyze the license terms for all SDKs and tracking tools incorporated into your sites.
  • If the business partner requires a business associate agreement, ensure that your agreement includes all of the updated terms for such agreements from HHS.
  • If your business is not regulated by HIPAA, determine what state and FTC rules apply to your collection and use of all personal information, including electronic health data, and ensure that you comply with such rules.
  • Finally, note Washington’s My Health My Data Act requirement for a separate consumer health data privacy notice and remember the act’s private cause of action for violations.

Tags: HIPAA
Previous Post

TD’s Ethical Deficit: Banking on Consumer Apathy in the Culture War Era

Next Post

Guarding the Golden Goose

Steve Britt

Steve Britt

Steve Britt is an attorney who focuses on cybersecurity, data privacy and artificial intelligence. He holds AIGP, CIPP/E and CIPM certifications

Related Posts

virginia state flag

Are You Ready for Virginia’s Sweeping Reproductive Health Privacy Law?

by Meghan O’Connor
April 29, 2025

Broadly defined ‘reproductive and sexual health information’ may affect any company doing business in the state

demystifying data de ID collage

Demystifying Data De-Identification for US Privacy Compliance

by L. Hannah Ji-Otto, David Chen and Julie Kilgore
October 30, 2024

De-identification is a valuable tool for protecting consumer privacy, but the process requires diligent compliance with multiple state and federal...

Medical professional enters information into electronic medical record

Navigating HIPAA Compliance in the Cloud: Is Google Workspace the Right Fit?

by Nick Harrahill
August 15, 2023

By 2025, an estimated 85% of enterprises will shift to a cloud-first mindset, while others will adopt a hybrid approach...

medical record stethoscope

Survey: Consumers Don’t Trust Big Tech to Handle Their Health Data

by Staff and Wire Reports
July 27, 2023

The number of healthcare data breaches in the U.S. has doubled over the past three years, according to a report...

Next Post
eggs in nest

Guarding the Golden Goose

No Result
View All Result

Privacy Policy | AI Policy

Founded in 2010, CCI is the web’s premier global independent news source for compliance, ethics, risk and information security. 

Got a news tip? Get in touch. Want a weekly round-up in your inbox? Sign up for free. No subscription fees, no paywalls. 

Follow Us

Browse Topics:

  • CCI Press
  • Compliance
  • Compliance Podcasts
  • Cybersecurity
  • Data Privacy
  • eBooks Published by CCI
  • Ethics
  • FCPA
  • Featured
  • Financial Services
  • Fraud
  • Governance
  • GRC Vendor News
  • HR Compliance
  • Internal Audit
  • Leadership and Career
  • On Demand Webinars
  • Opinion
  • Research
  • Resource Library
  • Risk
  • Uncategorized
  • Videos
  • Webinars
  • Well-Being
  • Whitepapers

© 2025 Corporate Compliance Insights

Welcome to CCI. This site uses cookies. Please click OK to accept. Privacy Policy
Cookie settingsACCEPT
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
SAVE & ACCEPT
No Result
View All Result
  • Home
  • About
    • About CCI
    • CCI Magazine
    • Writing for CCI
    • Career Connection
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Explore Topics
    • See All Articles
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Well-Being at Work
    • Leadership and Career
    • Opinion
  • Vendor News
  • Library
    • Download Whitepapers & Reports
    • Download eBooks
    • New: Living Your Best Compliance Life by Mary Shirley
    • New: Ethics and Compliance for Humans by Adam Balfour
    • 2021: Raise Your Game, Not Your Voice by Lentini-Walker & Tschida
    • CCI Press & Compliance Bookshelf
  • Podcasts
    • Great Women in Compliance
    • Unless: The Podcast (Hemma Lomax)
  • Research
  • Webinars
  • Events
  • Subscribe

© 2025 Corporate Compliance Insights