AHA to court: Revised OCR bulletin on online tracking technologies still unlawful

The Department of Health and Human Services' revised "bulletin" for HIPAA covered entities and business associates using online tracking technologies only confirms that the original bulletin was "substantively and procedurally unlawful," AHA April 11 told a federal court hearing its challenge to a bulletin issued by HHS' Office for Civil Rights that restricts health care providers from using standard third-party web technologies that capture IP addresses on portions of their public-facing webpages.

"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," AHA wrote. "The unprecedented rule HHS has adopted is unmoored from statutory text and purpose, as well as practically unworkable and internally inconsistent-unsurprising for a rule hastily reformulated in the crucible of litigation and still critically lacking in public feedback. Just like the Original Bulletin, the Revised Bulletin will prevent healthcare providers from communicating vital health information to the communities they serve. Faced with the threat of civil penalties, the Plaintiff Hospitals and the members of Plaintiff Associations (Plaintiffs) had no choice but to comply with this unlawful government mandate. Yet several federal agencies-including one within HHS itself-continue to engage in the very conduct that the Revised Bulletin purportedly reminds them has always been illegal. The Court should put an end to this embarrassing saga of regulatory overreach and bar enforcement of HHS's unlawful and unwise new rule."

Joined by the Texas Hospital Association, Texas Health Resources, and United Regional Health Care System, AHA last year sued HHS to bar enforcement of the bulletin. Seventeen state hospital associations and 30 hospitals and health systems have filed friend-of-the-court briefs supporting AHA in the lawsuit.