HHS Folds Cards After Judge Vacates Regulation "AGAINST" Web-Tracking Visitor Behavior

 Example of a judge in Texas VACATING an HHS regulation that "over reaches."

https://www.fiercehealthcare.com/regulatory/hhs-reverses-course-will-no-longer-appeal-federal-courts-hospital-web-tracker-decision

The white flag came 10 days after the administration had filed its appeal to the Fifth Circuit.

The case had been brought in late 2023 by the American Hospital Association (AHA) the Texas Hospital Association, Texas Health Resources and United Regional Health Care System, which had argued that HHS’ Office for Civil Rights (OCR) overstepped its authority with guidance it had issued in 2022.

That bulletin warned providers that online trackers to monitor user traffic and behavior, such as the Meta Pixel or Google Analytics, could be at odds with the Health Insurance Portability and Accountability Act (HIPAA). Such tools are widely employed by hospitals, triggering a spate of class-action lawsuits and settlements.

The lawsuit, which enjoyed the support of numerous state hospital groups and individual health systems, argued that the trackers are a key tool for providers tailoring their service offerings to meet the needs of their communities. The hospitals also argued that HHS had exceeded its statutory authority by expanding HIPAA’s definition for its bulletin and noted that many of the government’s own healthcare websites actively use the tools HHS OCR was restricting.

Despite a March adjustment to the bulletin, Judge Mark Pittman of the U.S. District Court for the Northern District of Texas vacated the guidance. He wrote in the ruling that the department’s bulletin “was promulgated in clear excess of HHS's authority under HIPAA."

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CHAT GPT 4o

The case "American Hospital Association, et al. v. Xavier Becerra, et al." before the United States District Court for the Northern District of Texas, Fort Worth Division, involves the American Hospital Association (AHA) and other plaintiffs challenging the Department of Health and Human Services (HHS) over its interpretation and enforcement of the Health Insurance Portability and Accountability Act (HIPAA) in the context of online tracking technologies.

Background

The case centers on the application of HIPAA’s Privacy Rule, particularly concerning “individually identifiable health information” (IIHI). HHS issued guidance documents, first in December 2022 (the “Original Bulletin”) and then a revised version (the “Revised Bulletin”), which attempted to address privacy concerns related to the use of online tracking technologies by healthcare providers. The Bulletins posited that the combination of a user’s IP address with visits to health-related webpages could constitute IIHI, thereby invoking HIPAA protections.

The plaintiffs, which include two hospital associations and a regional healthcare system, argue that the Bulletins impose new substantive obligations not supported by HIPAA's statutory framework. They contend that HHS overstepped its authority by expanding the definition of IIHI without going through the proper rulemaking processes, thereby violating the Administrative Procedure Act (APA).

Legal Arguments and Ruling

The court ruled in favor of the plaintiffs on several key points:

1. Jurisdiction: The court determined it had jurisdiction over the case, rejecting HHS’s argument that the Bulletins were not a “final agency action” and therefore not subject to judicial review. The court found that the Revised Bulletin represented the consummation of HHS’s decision-making process and imposed new legal obligations on covered entities, making it a final agency action.

2. Substantive Overreach: The court found that the Bulletins improperly expanded the definition of IIHI beyond what HIPAA’s statutory language permits. The Revised Bulletin’s attempt to include online tracking data (the “Proscribed Combination”) as IIHI was seen as an overreach because it imposed new obligations not grounded in the statutory text of HIPAA.

3. Legal Consequences: The court concluded that the Revised Bulletin created new legal obligations by prescribing specific conduct to ensure compliance with the Privacy Rule, effectively making the guidance document enforceable as law. The court rejected HHS’s argument that the Revised Bulletin was merely a policy statement without binding legal force.

Conclusion

The court granted summary judgment in part to the plaintiffs, finding that HHS had exceeded its statutory authority under HIPAA by attempting to regulate online tracking technologies through guidance documents without going through the proper rulemaking process. This case underscores the sensitivity of Texas federal courts to perceived agency overreach and their willingness to curtail what they see as executive agencies exceeding their statutory bounds.

This ruling is particularly significant in the broader context of administrative law and health policy, as it reaffirms the limits of agency authority in interpreting and enforcing complex regulatory frameworks like HIPAA. It also highlights the ongoing tension between federal agencies and the courts regarding the proper scope of regulatory power, especially in a jurisdiction like Texas, known for its skepticism of federal overreach.

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The judge makes a reference to the Bible, specifically the Book of Luke, in a whimsical manner to emphasize a point. In discussing the expansive reach of the federal bureaucracy and the potential consequences of allowing agencies to overstep their authority, the judge alludes to Luke 19:26, which says, "to everyone who has, more will be given, but from the one who has not, even what he has will be taken away."

This citation is used to underline the idea that once an agency like HHS begins to expand its authority beyond its statutory limits, it tends to accumulate more power, often at the expense of the freedoms or rights initially protected by the law. The judge uses this biblical reference to critique the tendency of federal agencies to self-perpetuate and expand their influence, which is a central theme in his argument against the overreach of HHS in this case.

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Towards the end of the opinion, the judge broadens the scope of the case beyond just the specific issues surrounding HIPAA. He characterizes the case as being fundamentally about the limits of agency power and the broader implications of unchecked executive authority.

This rhetorical flourish serves to highlight the judge's perspective that this case is not merely a legal dispute over the technicalities of HIPAA, but rather a part of a larger narrative concerning the role of federal agencies and the importance of maintaining a balance of power. By framing it this way, the judge is emphasizing the potential dangers of allowing agencies to interpret and enforce laws in ways that may extend beyond the authority granted to them by Congress.

The comment can be seen as somewhat gratuitous because it steps away from the specifics of the case to make a broader philosophical point about the nature of government power. It reflects the judge's concern with the potential for agency overreach to undermine the principles of limited government and the rule of law, making a case that this decision has implications beyond the immediate legal context.

This closing remark underscores the judge's view that cases like this are critical in preserving the constitutional boundaries of agency authority, ensuring that executive agencies do not exceed the powers delegated to them by Congress. It's a way of stressing the significance of the ruling in the broader context of American governance and legal principles.