Last month, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a bulletin with guidance concerning the use of online tracking technologies by covered entities and business associates under the Health Insurance Portability and Accountability Act (HIPAA). The OCR Bulletin follows a significant uptick in litigation concerning these technologies in industries including but not limited to the healthcare. For healthcare entities, the allegations relate to the sharing of patient data obtained from patient portals and websites.


A Few Reminders

Before digging into the OCR Bulletin, let’s remember a few basic HIPAA rules:

  • In general, the HIPAA privacy and security regulations (the “HIPAA rules”) apply only to “covered entities” and “business associates” (we’ll call these “regulated entities”).
  • The HIPAA Rules apply to “protected health information” (PHI) which generally includes individually identifiable health information. That is, health information that relates to the individual’s past, present, or future health, health care, or payment for care, including demographic information. See 45 CFR 160.103.
  • Regulated entities can use or disclose PHI without an individual’s written authorization only as expressly permitted or required by the HIPAA Rules. See 45 CFR 164.502(a).

Definition of Tracking Technologies and Their Uses

As discussed in the OCR Bulletin, an online tracking technology is

a script or code on a website or mobile app used to gather information about users as they interact with the website or mobile app

Examples of these tracking technologies on websites include cookies, web beacons, or tracking pixels. Mobile apps may use tracking technologies such as tracking codes within the app, as well as captures of device-related information. As noted in the Bulletin,

For example, mobile apps may use a unique identifier from the app user’s mobile device, such as a device ID or advertising ID. These unique identifiers, along with any other information collected by the app, enable the mobile app owner or vendor or any other third party who receives such information to create individual profiles about each app user

Tracking technologies, whether developed internally or by third parties, are used by website or mobile app owners for various reasons, including to better understand the user experience on their site or app. Technologies developed by third parties may be able to track users and gather information after they navigate away from the original site. The OCR Bulletin focuses on third party tracking technologies.  

Why Do Tracking Technologies Trigger HIPAA?

When a regulated entity uses tracking technologies developed by a third party vendor on its mobile app or website, such use may result in the collection and/or disclosure of PHI to the third party.

The Bulletin states:

All such IIHI collected on a regulated entity’s website or mobile app generally is PHI, even if the individual does not have an existing relationship with the regulated entity and even if the IIHI, such as IP address or geographic location, does not include specific treatment or billing information like dates and types of health care services.

(emphasis added.) So, according to the OCR, individuals with or without an existing patient relationship with the regulated entity could be sharing PHI with the entity (or a third party) through its website tracking technologies. This information might include an individual’s medical record number, home or email address, or dates of appointments, as well as an individual’s IP address or geographic location, medical device IDs, etc.

Notably, not all such technologies will be collecting identifiable information. The Bulletin recognizes a distinction between user-authenticated and unauthenticated webpages. User-authenticated pages require a user to log in before access to the regulated entity’s page. According to the Bulletin, information collected on a user-authenticated webpage will be presumed to be PHI and subject to HIPAA.

Many regulated entities maintain unauthenticated webpages – those that do not require a log in for access. Typically, these are sites that provide general information only – locations, description of services, policies and procedures etc., and generally do not have access to PHI. For unauthenticated web pages, the determination is more detailed as tracking technologies on such webpages typically would not have access to PHI. However, regulated entities should be aware that tracking on such pages could capture PHI. Sites that address specific symptoms or health conditions, or that permit a visitor to search for a doctor or schedule an appointment may qualify as PHI, where, for example, the visitor’s email address or IP address is also captured.

Importantly, the Bulletin clarifies the HIPAA Rules do not apply to websites or mobile apps that are developed or offered by entities that are not regulated entities. For instance, a mobile app provider may offer individuals an online repository or tracking feature for their sensitive health information. If that provider if not a regulated entity, the HIPAA Rules do not apply, although other federal and/or state laws may, such as Federal Trade Commission (FTC) Act or state comprehensive privacy laws, such as the California Consumer Privacy Act. Notably, in September 2021, the FTC issued a policy statement confirming that covered companies (e.g., certain health apps) that hold fertility, heart health, glucose levels and other health data must notify consumers in the event of a breach.  

HIPAA Obligations When Using Tracking Technologies

When a regulated entity uses tracking technologies on its website(s) or mobile app(s), it may have obligations under the HIPAA Rules. While we cannot cover all of those requirements here, we summarize some key obligations:

  • Investigate whether the site or app has access to PHI. As noted above, do not assume that because the site is unauthenticated or only collects email addresses, it is not collecting PHI.  
  • Ensure that all disclosures of PHI to tracking technology vendors are specifically permitted by the Privacy Rule and that unless an exception applies, only the minimum necessary PHI to achieve the intended purpose is disclosed.
    • Remember that if a disclosure of PHI requires an authorization under HIPAA, website privacy policies and website banners that ask users to accept or reject the use of tracking activities, standing alone, will be unlikely to constitute a valid authorization.
    • If a tracking technology vendor is creating, receiving, maintaining, or transmitting PHI on behalf of a regulated entity for a covered function, it will likely be considered a business associate. In that case, a business associate agreement may need to be in place between the regulated entity and the vendor.
  • Address the use of tracking technologies in a risk analysis and risk management processes, and implement safeguards in accordance with the HIPAA security regulations.
  • Provide breach notifications to affected individuals and the OCR if impermissible disclosures of PHI occur via tracking technology.


During 2022, litigation concerning the use of website tracking technologies increased significantly. In one report, a health system settled claims for $18 million, while in another case, the plaintiffs alleged over 650 hospital system or medical provider websites use the Meta Pixel tracking tool and have sent data from those sites.

The trend does not just involve HIPAA regulated entities or HIPAA. According to a Bloomberg Law analysis, between February and October 2022, at least 47 proposed class actions were filed alleging transfers of “personal video consumption data from online platforms to Facebook without their consent,” in violation of the federal Video Privacy Protection Act.

For regulated entities under HIPAA, it is not much comfort that HIPAA does not have a private right of action for individuals. Plaintiffs are using other paths under similar federal and state laws to advance their claims. The trend is growing, but there are steps regulated entities can take to address these risks.


Covered entities and business associates should conduct an audit of any tracking technologies used on their websites, web applications, or mobile apps and determine if they are being used in a manner that complies with HIPAA. Such tracking technologies should be included in a HIPAA risk analysis and risk management process.

Covered entities should review tracking technology vendor agreements and ensure a business associate agreement is in place to avoid potential impermissible disclosure of private health information.

If through an audit it is found that tracking technologies are being used in a manner not compliant with HIPAA, notification may be required under HIPAA and applicable state law.

If you have questions about HIPAA compliance or related issues contact a Jackson Lewis attorney to discuss.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA,, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.