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What types of communications are not considered marketing?

HIPAA Weekly Advisor, April 11, 2003

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Q: What types of communications are not considered marketing?

A: They might otherwise meet the marketing definition, but the following three types of communications do not qualify as such under the privacy regulations:

• Communications to describe a health-related product or service (or payment for such product or service) provided by or included in a plan of benefits by the covered entity making the communication. These include
  • communications about the entities participating in a health care provider network or health plan network
  • replacement of or enhancements to a health plan
  • health-related products or services available only to a health plan enrollee that add value to but are not part of a plan of benefits
• Communications for the treatment of the individual
• Communications for case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the individual

It is not considered "marketing" to discuss your own or third-party products or services as part of the treatment regime of a patient. Note, however, that treatment is defined as providing "health care," and "health care" is defined as relating to the health of a patient. Thus, this exception means that the communication is tailored precisely to the needs of a particular patient and relates to the treatment needs of that patient. Any general communications or mass mailings to a group of patients about some third-party product would not really be for "treatment" of the particular patient, but would instead be marketing of a third-party product.

In addition to those communications that are not considered to be marketing, the following two types of marketing do not require an authorization:

• A face-to-face communication made by a covered entity to an individual
• A promotional gift of nominal value provided by the covered entity

Covered entities should not use PHI to promote a third party product, unless they use it as part of the treatment plan of the patient or it is done in a face-to-face encounter with the patient. Thus, it will not be marketing to recommend a particular drug or a particular nursing home, for instance, if done as part of the treatment needs of the patient or if done in a face-to-face encounter with the patient or other individual. You should not sell or give away your mailing list or patient names to any third party so that the third party can market its products and services. Likewise, you should not agree to send out information about a third party's products and services to your patient list.

Editor's note: Brought to you by attorneys Marty Baxter and Gretchen McBeath at Bricker and Eckler, LLP (http://www.bricker.com) and The Quality Management Consulting Group, Ltd. (http://www.qmcg.com). E-mail: mbaxter@bricker.com or gmcbeath@bricker.com

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