Does Your Agency Know HIPAA Compliant Marketing? Ask These Questions

If you provide healthcare services, choosing the right marketing partner involves more than simply weighing an agency’s creativity and results. Your agency must also understand the intricacies of HIPAA-compliant marketing and the importance of properly handling protected health information (PHI).

Working with an agency that knows which marketing activities are restricted under HIPAA and which can be safely pursued will help prevent costly compliance risks – all while ensuring you reach and engage your target audience and continue growing your brand. 

In this article, we’ll help you understand the basics of HIPAA and its impact on marketing and share a few questions to consider as you’re choosing a marketing partner. 

At CAP3 | Proclaim, we have a proven track record of helping medical clients reach their marketing goals and grow their brand while meeting HIPAA standards. If you’re seeking a trusted, knowledgeable marketing partner for your healthcare organization, we invite you to contact us today to start a conversation. 

What is HIPAA and How Does It Impact Marketing?

The Health Insurance Portability and Accountability Act (HIPAA) is a federal law created to safeguard sensitive patient health information, including names, contact information, medical conditions, treatment details and other identifiable health data.

Healthcare organizations, health plans and their business associates (including third-party vendors such as marketing agencies), must follow HIPAA privacy rules when collecting, storing, sharing or using this protected health information. 

In a nutshell, HIPAA is designed to prevent healthcare organizations from treating patient information as a marketing asset. 

While some people assume this means marketing is prohibited under HIPAA, this isn’t the case. HIPAA does not prevent marketing; instead, it requires patient information to be used appropriately and with proper authorization. 

This is why it’s essential to partner with a marketing agency that understands HIPAA compliance requirements and the importance of safeguarding patient privacy.

What Are HIPAA Marketing Guidelines?

HIPAA marketing rules are designed to give patients control over how their personal health information is used.

Under HIPAA marketing guidelines:

• Organizations must get explicit written authorization from patients before using or disclosing PHI for promotional campaigns or other marketing purposes.
• This includes the use of patient lists, email databases or medical information. 
• If an organization receives payment for promoting a third-party product or service, additional disclosures may be required.
• Any third-party vendor handling patient data must sign a Business Associate Agreement (BAA), a legally binding contract that makes the vendor liable for protecting PHI.
• Healthcare-related communications that support treatment, care coordination, case management or similar purposes are typically allowed without explicit patient consent. 

What Counts as Marketing Under HIPAA Guidelines?

HIPAA distinguishes between patient care communications and marketing communications.

Under HIPAA guidelines, marketing communications encourage someone to purchase or use a product or service and require prior written authorization. This includes:

• Promotional emails that use patient information to advertise products or services
• Third-party product or service endorsements
• Sharing patient information with a third party for that party’s own marketing purposes
• Communications that promote products unrelated to treatment purposes 
• Selling patient lists to outside organizations
• Any recommendations or communications intended to drive sales 

Communications that are not considered marketing under HIPAA guidelines, even if they mention products or services, include: 

• Appointment or prescription refill reminders 
• Treatment recommendations
• Care coordination communications 
• Referrals to specialists
• Information about your provider’s own health-related services

Understanding what is and is not marketing under HIPAA is not always obvious, which is why marketing agency expertise is important.

What Can Happen If HIPAA Marketing Guidelines Are Violated?

Violating HIPAA marketing guidelines, even if unintentional, can result in serious consequences.

This may include:

• Regulatory investigations by the U.S. Department of Health and Human Services (HHS)
• Professional and internal sanctions, such as loss of employment or professional licensure
• Reputational damage and loss of patients
• Ongoing negative brand equity
• Corrective action requirements
• Financial and civil penalties
• Legal actions 

Working with an experienced healthcare marketing agency knowledgeable in compliant marketing and data-handling practices can help reduce these risks.

While this list is by no means exhaustive, these questions can help you confirm an agency protects patient privacy and complies with HIPAA:

• How do you balance creative marketing with HIPAA regulatory rules and marketing guidelines?
• How do you determine whether patient authorization is required for marketing outreach?
• What safeguards are in place to protect sensitive patient information?
• Can you provide references from other healthcare clients or HIPAA-regulated organizations?
• Are you willing to sign a Business Associate Agreement (BAA) if necessary?

CAP3 | Proclaim: A Marketing Partner That Understands HIPAA Compliance

Effective marketing and HIPAA compliance don’t have to be incompatible.

At CAP3 | Proclaim, we have a proven track record of helping our healthcare clients, from smaller practices to larger healthcare systems, meet their marketing goals while protecting patient privacy. 

Ready to explore working with an agency with a thorough understanding of HIPAA marketing requirements? It all begins with a conversation.