Biden Administration Sued in Texas…Again

Biden Administration Sued in Texas…Again

The Biden Administration has found itself in court in the state of Texas again – but not over the No Surprises Act (NSA) this time! The American Hospital Association (AHA) and the Texas Hospital Association (THA), along with two Texas health systems, filed a lawsuit in the Northern District of Texas asking the court to bar enforcement of a December 2022 U.S. Department of Health and Human Services (HHS) bulletin stating that tracking technology hospitals use on public-facing websites and apps that connects an individual’s IP address or email to web traffic behavior is likely a Health Insurance Portability and Accountability Act (HIPAA) violation.

In the lawsuit, the AHA argues that this bulletin is effectively a legislative rule, because it speaks to conduct that would be banned under HIPAA. It also states that this would be a “gross overreach by the federal bureaucracy” imposed without public input, contrary to the intent of HIPAA in the first place. The group notes that while hospitals and health systems certainly acknowledge and honor HIPAA provisions, sharing information with the public is key to public health and combatting misinformation – a key goal, especially coming out of the COVID-19 epidemic – and that the guidance harms the very people it is supposed to be protecting.

Citing HHS’s own words that “information is essential fuel for the engine of healthcare,” AHA listed the third-party tracking technologies that are key to enhancing hospital websites through gauging functionality, helpfulness, and what adjustments need to be made to publicize information and services. These technologies include analytic tools, which convert website visitors’ interactions on hospital websites into data that can be studied; video technologies that educate the community about health conditions and support virtual tours of facilities; translation tools that help non-English speakers access healthcare information; and map and location technologies that help visitors access healthcare based on their location. All these technologies use a website visitor’s IP address, and therefore potentially run afoul of the HHS bulletin.

So, how prevalent are these technologies that AHA and others found a lawsuit necessary? A recent Health Affairs study found that about 99 percent of the almost 3,800 hospitals studied utilized this type of tracking software.

But despite that prevalence, hospitals and health systems have felt unfairly targeted over the last few months. In July, HHS and the Federal Trade Commission (FTC) issued warning letters to 130 organizations over the use of this technology, and went on to publicly post the names of the organizations for all to see. And the plaintiff groups also point out that the government itself often uses these tracking tools, giving three examples of the Veterans Health Administration (VHA), Medicare.gov, and U.S. Department of Defense (DOD) web pages. They pointed this out, they say, not to force the government to stop using the technology, but to highlight the importance of it. The AHA President said the “rule for thee but not for me” approach of HHS was unexplainable, and has led to class-action litigation invoking the bulletin and significant financial costs for systems that have been forced to remove the technology from their websites to avoid legal action.

With all of that in mind, the lawsuit asks the court to declare that the information collected by all of these tools not be considered data protected under HIPAA, or at a minimum that the bulletin should have been subject to notice and comment. So now we wait to see how the administration fares in this Texas court.

Facebook
Twitter
LinkedIn

Cate Brantley, JD

Cate Brantley is a Senior Government Affairs Liaison for Zelis. She has over 9 years of experience in both the public and private sector. Cate is licensed to practice law in the state of Oklahoma.

Related Stories

CMS Ventilator Education Goes Astray

CMS Ventilator Education Goes Astray

Following all the rules can be complicated. And sadly, following all the rules is not optional. Mary Inman frequently reports here on the consequences of

Read More

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

2026 IPPS Masterclass 3: Master MS-DRG Shifts and NTAPs

2026 IPPS Masterclass Day 3: MS-DRG Shifts and NTAPs

This third session in our 2026 IPPS Masterclass will feature a review of FY26 changes to the MS-DRG methodology and new technology add-on payments (NTAPs), presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 14, 2025
2026 IPPS Masterclass Day 2: Master ICD-10-PCS Changes

2026 IPPS Masterclass Day 2: Master ICD-10-PCS Changes

This second session in our 2026 IPPS Masterclass will feature a review the FY26 changes to ICD-10-PCS codes. This information will be presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 13, 2025
2026 IPPS Masterclass 1: Master ICD-10-CM Changes

2026 IPPS Masterclass Day 1: Master ICD-10-CM Changes

This first session in our 2026 IPPS Masterclass will feature an in-depth explanation of FY26 changes to ICD-10-CM codes and guidelines, CCs/MCCs, and revisions to the MCE, presented by presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 12, 2025

Trending News

Featured Webcasts

The Two-Midnight Rule: New Challenges, Proven Strategies

The Two-Midnight Rule: New Challenges, Proven Strategies

RACmonitor is proud to welcome back Dr. Ronald Hirsch, one of his most requested webcasts. In this highly anticipated session, Dr. Hirsch will break down the complex Two Midnight Rule Medicare regulations, translating them into clear, actionable guidance. He’ll walk you through the basics of the rule, offer expert interpretation, and apply the rule to real-world clinical scenarios—so you leave with greater clarity, confidence, and the tools to ensure compliance.

June 19, 2025
Open Door Forum Webcast Series

Open Door Forum Webcast Series

Bring your questions and join the conversation during this open forum series, live every Wednesday at 10 a.m. EST from June 11–July 30. Hosted by Chuck Buck, these fast-paced 30-minute sessions connect you directly with top healthcare experts tackling today’s most urgent compliance and policy issues.

June 11, 2025
Open Door Forum: The Changing Face of Addiction: Coding, Compliance & Care

Open Door Forum: The Changing Face of Addiction: Coding, Compliance & Care

Substance abuse is everywhere. It’s a complicated diagnosis with wide-ranging implications well beyond acute care. The face of addiction continues to change so it’s important to remember not just the addict but the spectrum of extended victims and the other social determinants and legal ramifications. Join John K. Hall, MD, JD, MBA, FCLM, FRCPC, for a critical Q&A on navigating substance abuse in 2025.  Register today and be a part of the conversation!

July 16, 2025

Trending News

Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →

CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24