星空入口

Question: Our small practice often sends out annual reminders to our patients about things like flu season, heart health, or mammograms. Would these be considered marketing under the HIPAA Privacy Rule?

星空入口Forum Participant

Answer: No. Wellness programs and annual reminders that promote population health or preventative medicine are not considered 鈥渕arketing鈥� by the HIPAA Privacy Rule standards.

鈥淎 communication that merely promotes health in a general manner and does not promote a specific product or service from a particular provider does not meet the definition of 鈥榤arketing,鈥欌�� notes the HHS Office for Civil Rights (OCR) online guidance. 鈥淪uch communications may include population-based activities in the areas of health education or disease prevention,鈥� the agency adds, mentioning examples like mailings on support groups, cancer prevention, or lowering cholesterol levels.

Nuts and bolts: However, it is still important to investigate what OCR does consider marketing. 鈥淭he Privacy Rule defines 鈥榤arketing鈥� as making 鈥榓 communication about a product or service that encourages recipients of the communication to purchase or use the product or service,鈥欌�� the agency says. 鈥淕enerally, if the communication is 鈥榤arketing,鈥� then the communication can occur only if the covered entity first obtains an individual鈥檚 鈥榓uthorization.鈥欌��

That鈥檚 why the language your practice uses in these endeavors matters, especially in marketing materials. You must understand what constitutes appropriate language for marketing materials to patients, as well as what is OK in terms of marketing data and other information to covered entities.

For example: If you discuss a product or service 鈥� regardless of whether you鈥檙e speaking about the item or you are providing the patient with written materials 鈥� or encourage the individual to purchase or use that product or service, the communication would likely fall under the HIPAA Privacy Rule鈥檚 helm of 鈥渕arketing.鈥� And you鈥檇 need an authorization for that, OCR warns.

Here鈥檚 where it gets complicated. If you talk about a product or service that is directly related to that particular patient鈥檚 treatment, then it wouldn鈥檛 be considered marketing. For instance, when 鈥渁 primary care physician refers an individual to a specialist for a follow-up test or provides free samples of a prescription drug to a patient,鈥� that would not be marketing but rather part of the treatment, OCR indicates.

Tip: You may ask patients to sign a waiver that ensures that they鈥檙e OK with certain practices, but it鈥檚 helpful to know exactly which types of communications skirt the line between treatment and health promotion versus actual marketing. That way you can avoid noncompliance with the HIPAA provision and the legal issues associated with it.