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What types of communications are not considered "marketing" and therefore do not require patient authorization?

HIPAA Weekly Advisor, November 1, 2002

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Q: What types of communications are not considered "marketing" and therefore do not require patient authorization?

A: The final privacy rule excludes three categories of communications from the definition of "marketing." Facilities must obtain patient authorization to disclose PHI in all marketing communications, except about the following:

1. The participating providers and health plans in a network, the services offered by a provider, or the benefits covered by a health plan
2. The patient's treatment
3. Case management or care coordination for the patient, or directions or recommendations for alternative treatments, therapies, health care providers, or settings of care

Facilities also do not have to obtain authorization for the following:

1. Face-to-face encounters
2. Communications involving a promotional gift of nominal value. Covered entities do not violate the rule when they distribute calendars, pens, and other merchandise that generally promote the covered entity.
3. Communications about their health-related products or services as long as the communication

• identifies the covered entity as the party making the communication
• prominently states that the covered entity receives direct or indirect remuneration from a third party for making the communication (if applicable)
• contains instructions describing how the individual may opt-out of receiving future communications about health-related products and services (except in the case of a general communication, such as a newsletter)
• explains why the individual has been targeted and how the product or service relates to the health of the individual

Facilities cannot give a list of patients to a third party without authorization.

Answered by Tom Hanks, director of client services for the health care practice at PricewaterhouseCoopers, LLP, in Chicago, and adapted from the November 2002 issue of Briefings on HIPAA.

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