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HIPAA, Marketing, and Advertising: A Guide to Compliant Campaigns for Small Practices
Recent legal action, including the lawsuit against the University of California, San Francisco Medical Center, and the Dignity Health Medical Foundation, has brought to light healthcare providers' inappropriate use of patient data. These entities have obtained sensitive health information from patient portals and utilized such data to launch retargeting ads on Facebook without obtaining express patient consent.
The actions of these healthcare providers have raised concerns about the handling of patient data and the protection of patient privacy. Healthcare data breaches are expected, with numerous organizations reporting breaches affecting millions of individuals. Some breaches involve cyberattacks, while others stem from the accidental disclosure of private health data through tracking technologies like pixels used by social media companies.
HIPAA Compliance and the Size of The Medical Practice
HIPAA regulations pertain to all medical practices, regardless of their size. Whether it is a small, solo practitioner's office or an extensive healthcare system, all entities that handle protected health information (PHI) must comply with HIPAA. The size of the medical practice does not exempt it from HIPAA regulations. Regardless of its size, each healthcare organization must implement the necessary measures to safeguard patient privacy and security, including online tracking technologies. Compliance with HIPAA is essential for maintaining patient trust, avoiding legal penalties, and ensuring the confidentiality of patient information.
Updated Guidance on Tracking Technologies
The US Department of Health and Human Services (HHS) released a bulletin in December 2022 addressing the increasing number of HIPAA breaches. The bulletin provides strict guidance on third-party cookies, pixels, and other tracking technologies by healthcare companies. It expands the definition of protected health information (PHI) and highlights the risks posed by using tracking technologies on websites and mobile apps that can be accessed without user login. Failure to comply with HIPAA can result in severe penalties, including fines of up to $1,806,757 and potential criminal sanctions.
HIPAA's Definition of Marketing
HIPAA defines marketing as any interaction between a covered entity and an individual, regardless of patient status. This means that health data collected from website visitors who arrived through ads should receive the same protection as data from paying customers. Handling personally identifiable information (PII) with care is essential, as it can still be considered PHI. Even data collected from marketing pages and used in retargeting campaigns may fall under PHI. HIPAA's definition of PHI includes various data types, such as names, addresses, medical records, user IDs, and IPs used to recognize visitors across channels.
Limitations of Advertising Platforms
Advertising platforms like Facebook, Google, and LinkedIn Ads do not currently provide an option to sign a business associate agreement (BAA), which HIPAA requires. This means that sharing data considered PHI with these platforms is not permitted. The same restrictions apply to popular analytics platforms like Google Analytics, which forbids using PHI data.
Critical Recommendations for HIPAA Compliance
To ensure HIPAA compliance when using online tracking technologies, healthcare organizations should consider the following recommendations outlined in the HHS guidance:
Conduct a Comprehensive Risk Assessment: Healthcare organizations should conduct a thorough risk assessment to identify privacy and security risks associated with online tracking technologies. This assessment should include an evaluation of the types of data collected, the purpose of data collection, and the security measures to protect the information.
Implement Privacy Policies and Procedures: Clear and comprehensive privacy policies and procedures should be established to govern the use of online tracking technologies. These policies should outline how patient data is collected, stored, and used and the measures to protect the information from unauthorized access or disclosure.
Ensure Data Security and Minimization: Healthcare organizations must have implemented robust security measures to protect patient data collected through online tracking technologies. This includes encryption, firewalls, access controls, and regular security audits. Additionally, organizations should only collect the minimum necessary data required for analytics purposes, minimizing the risk of potential data breaches.
Maintain Data Retention Policies: Healthcare organizations should establish data retention policies that define how long patient data collected through online tracking technologies will be stored. This ensures that data is not retained longer than necessary and reduces the risk of unauthorized access or disclosure.
Train Staff on HIPAA Compliance: Proper training on HIPAA regulations and the organization's policies and procedures is essential for all staff members using online tracking technologies. This ensures everyone understands their responsibilities and follows the protocols to protect patient privacy.
Reach Out if You Need Help
If you need assistance navigating the complexities of HIPAA compliance in your healthcare marketing campaigns, don't hesitate to reach out to us at Avethan. We can provide expert guidance tailored to your needs and help ensure your marketing efforts align with HIPAA regulations. Contact us today to safeguard patient privacy and achieve marketing success.
