The Department of Health and Human Services (HHS) is dropping its appeal of a June U.S. District Court ruling that vacated the government's restriction of third-party online tracking technologies on hospital webpages.
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."
The department had filed a notice on Aug. 19 appealing Pittman’s decision to the U.S. Court of Appeals for the Fifth Circuit. That plan appears to have been short-lived, as HHS then filed a motion to voluntarily dismiss the appeal on Aug. 29—an apparent victory for the hospital lobby.
“As the AHA repeatedly explained to OCR—both before and after OCR forced the AHA to file its lawsuit—this rule was a gross overreach by the federal government, imposed without any input from healthcare providers or the general public,” AHA General Counsel Chad Golder said in an emailed statement. “Now that the Bulletin’s illegal rule has been vacated once and for all, hospitals can safely share reliable, accurate health care information with the communities they serve without the fear of federal civil and criminal penalties.”
HHS OCR said in has no comment on litigation.