OCR Updates Online Tracking Technology Guidance for HIPAA Regulated Entities: “Clarified,” But Not Clear

Lexology March 25, 2024
Ropes & Gray LLP

Fifteen months after issuing its expansive Original Guidance¹ on the use of online tracking technologies by entities subject to HIPAA, on March 18 the United States Department of Health and Human Services Office for Civil Rights (“OCR”) released Updated Guidance² intended to clarify its position on the issue. This update comes as OCR seeks to defend itself from objections and a lawsuit filed by the American Hospital Association alleging that (i) the Original Guidance impairs the ability of providers to make available truthful health information to the public,³ and (ii) the Original Guidance was arbitrary and capricious and should have been issued through formal notice-and-comment rulemaking.⁴

The Original Guidance addressed the use of online tracking technologies by HIPAA-regulated entities⁵ in...

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