The American Hospital Association is challenging HHS' bulletin regarding online tracking technologies for HIPAA-covered entities, calling it "substantively and procedurally unlawful."
According to the AHA, the HHS bulletin restricts healthcare organizations from using third-party web tracking technologies on their websites that may capture IP addresses of individuals that visit them.
"Recognizing that its original bulletin was legally indefensible, HHS responded to this suit by issuing a revised bulletin just days before its brief was due. But the agency's inconsequential modifications only confirmed that both agency actions were substantively and procedurally unlawful," the AHA said during a federal court hearing. "Just like the original bulletin, the revised bulletin will prevent healthcare providers from communicating vital health information to the communities they serve."
On March 19, HHS updated its stance on online tracking tools amid several hospitals, health systems and insurers facing lawsuits for using them. According to the bulletin, HHS stated that regulated organizations must not use tracking technologies in a way that would lead to sharing private health information with tracking technology providers or breaking HIPAA rules.
HHS said organizations can work with a technology vendor that provides tracking technology, but they cannot disclose protected health information to tracking technology vendors for marketing purposes without their consumers' consent.
"The court should put an end to this embarrassing saga of regulatory overreach and bar enforcement of HHS' unlawful and unwise new rule," the AHA said in an April 12 news release in response to the updated HHS bulletin.
The AHA, the Texas Hospital Association, Texas Health Resources and United Regional Health Care System sued the HHS in 2023 in a bid to get the organization to bar enforcement of the bulletin. Seventeen state hospital associations and 30 hospitals and health systems have submitted friend-of-the-court briefs in support of the AHA in the lawsuit.