Background
Patients filed putative class actions against four health care providers in Indiana and Illinois, alleging that Meta Pixel tracking software embedded in the providers’ websites disclosed health information without consent. The claims arose under state law, including claims for breach of implied contract, unjust enrichment, and violations of state consumer-protection and wiretapping laws.
The providers removed the cases to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). They argued that they were “acting under” the Department of Health and Human Services because federal regulations implementing the HITECH Act encouraged or required Medicare-participating providers to give patients electronic access to health records. The district courts rejected that jurisdictional theory and remanded the suits to state court, and the Seventh Circuit consolidated the resulting appeals.
The Court’s Holding
The Seventh Circuit affirmed all four remand orders. It held that the providers were not “acting under” a federal officer or agency when they created and maintained their patient portals. Their participation in the federal Meaningful Use Program amounted to compliance with federal regulation and response to federal incentives—not performance of a governmental duty delegated to them.
The court emphasized that the portals were private websites designed by private entities primarily for their patients and staff. Although the portals advanced federal policy favoring electronic access to health records, the government did not exercise the detailed control or supervision characteristic of the unusually close relationship required for federal officer removal. The governing regulations stated general access requirements, while the federal Patient Engagement Playbook supplied only nonbinding tips and best practices.
Because the providers failed to establish the “acting under” element of § 1442(a)(1), the court did not decide whether the challenged conduct related to an exercise of federal authority or whether the providers had colorable federal defenses.
Key Takeaways
- Compliance with detailed federal regulation, standing alone, does not make a private health care provider a person “acting under” a federal officer.
- Federal incentives to establish patient portals did not transform portal design and operation into a delegated basic governmental task.
- General regulatory requirements and nonbinding federal guidance did not establish the close federal direction, monitoring, or control needed for removal under § 1442(a)(1).
Why It Matters
The decision aligns the Seventh Circuit with several other federal appellate courts that have rejected federal officer removal in patient-portal tracking litigation. Health care providers cannot obtain a federal forum for such state-law privacy suits merely because federal programs encouraged them to offer electronic access to health records.
The ruling also reinforces the distinction between federal regulation and federal delegation: private entities generally must show that they assisted the government with its work under unusually close federal supervision, not simply that they complied with federal requirements or pursued federal incentives.