Keep Your Healthcare Marketing on the Safe Side of HIPAA and Other Legal Issues

Stack of books Editor’s Note: This article is another in our series about keeping physician and healthcare provider marketing away from legal problems. This roundup of comments does not represent legal advice but offers ideas and issues to consider in professional advertising and marketing.

When we started this series about legal issues and medical marketing we knew there would be a lot of interest. In fact, in addition to this article—a roundup of comments about HIPAA and social media—you’ll also want to read our Healthcare Marketing Exchange blog.

For our post today, As Specialists Race into Consumer Direct Marketing, Watch for Legal Tripwires, we talked with healthcare attorney Scott Becker. It’s about avoiding potential legal tripwires that might pop up in marketing when specialists want to be less reliant on primary care.

Inspired comments further the conversation.

Our first article in this series, 7 Dangerous Legal Issues to Avoid in Doctor Advertising, inspired Kristin Thompson to add to our initial list with her article, 4 ways you can find HIPAA harmony in Ragan’s Health Care Communications News.

With our thanks to Kristin, who writes: “Advertising in the health care industry isn’t always easy. In order to protect patient confidentiality and ensure accurate information, there are a few extra hoops for health care marketers to jump through. Depending on current national, state, and local regulations, what is acceptable in Tampa may be forbidden in San Diego.

“After reading the 7 Dangerous Legal Issues to Avoid in Doctor Advertising, we were inspired to list a few tips we’ve learned from the health care industry.

  • “Manage expectations –You cannot guarantee cures before meeting patients. Don’t make any false or overly ambitious claims. Watch out for terms like “best,” “world class,” “top,” or any other unquantifiable catchphrases.
  • “Keep your patient information under lock and key –Patient confidentiality is paramount. Don’t use information that may disclose the identity of a patient. We’ve seen nurses take photos of friends in the hallways of hospitals for Facebook and accidentally capture patient information in the image. Seek legal counsel. Get consent. Embrace digital media, but have a clear policy established for your organization.
  • “Don’t be scared to try new things –Follow your legal team’s advice, but don’t just rest on your laurels. In a splintered media space, grab the consumer’s attention. Go mobile. Use QR codes. Try a new social media site. Traditional media alone just doesn’t cut it anymore.
  • “Featuring physicians in advertising is Stark –compliant-Hospitals can feature non-employed physicians in its advertising, provided the hospital “signs” the ad (with the hospital logo). Check with your state, though. Some states like New York have more arduous regulations around physicians in advertising.”

Physicians, we need your voice…

On the same topic, Dave Ekrem, who manages web development and social media for MassGeneral Hospital for Children, posted his tips to avoid HIPAA violations in social media. You’ll want to read the full post, but in his words to physicians: “We need for you to write! As a physician, you have a perspective on health topics that’s uniquely valuable to society.”

He continues, “While there are several excellent guidelines and policies on this topic, there isn’t a whole lot of practical advice, so here are my tips to help you avoid privacy violations.

  • “Don’t talk about patients, even in general terms. It’s so difficult to anonymize patients, it’s not worth your time to attempt it.
  • “Do talk about conditions, treatments, research. You can write about conditions, treatment options, research, or other topics in general terms. Avoid: ‘I saw a patient last Tuesday with xyz condition…’ Okay: ‘Children with xyz condition typically present with these symptoms…’
  • “Don’t be anonymous. This has always been a warning sign in social media—even before Facebook and Twitter when we were using list serves and bulletin boards. Anonymity breeds bad behavior. It encourages you to say things you shouldn’t.
  • “If you wouldn’t say it in the elevator, don’t put it online. This is a famous test, probably repeated by compliance departments and trainers at hospitals all over the US. If you wouldn’t say it in the elevator, don’t put it online. You can try speaking your post out loud before hitting the enter key. Take particular care when replying to people in real-time venues like Twitter. You don’t have to respond right away and if you have any doubt at all, ask a friend or colleague for their reaction before you post.
  • “Check the tone of your social media presence. Watch the tone of your posts/tweets: if you’re using social media to vent about work, you should pause and evaluate-too much complaining could be an early warning sign of trouble. Unfortunately, humor can be another warning sign. Any time you write something you think is funny, ask a friend to have a look before you post.
  • “Don’t mix your personal and professional lives. Use separate accounts for your personal and professional lives. Don’t friend patients on Facebook, check your privacy settings monthly (they change from time to time), and assume that anything you put online could become public. If you want to have a professional presence on Facebook, create a page apart from your personal account.
  • “Disregard your comp teachers’ advice. Writing teachers in colleges will advise you to “show, don’t tell,” and “make it concrete and active.” They would prefer to have a story about a real person—Dave, with alcohol-induced liver disease—rather than general advice about the condition or treatment options or your response to recent research. They’d love to know Dave’s age, ethnic background, marital status, what brand of shirt he was wearing, that his loafers were scuffed. If you’ve ever had a composition course, you may have to unlearn a little doctrine.

“People need information from qualified healthcare professionals and sometimes information from healthcare pros is needed to balance other information being put out on the web (or the coffee shop, play ground, etc.).”

Social Media Guidelines from the AMA

It was only a few months ago that the American Medical Association offered a new policy “aimed at helping physicians maintain a positive online presence and preserve the integrity of the patient-physician relationship.”

At about the same, Chicago Attorney Steven M. Harris, contributing to the American Medical News late last year, wrote about Avoiding legal woes when marketing a practice online. Some of his observations include:

“Your Web presence is treated as advertising under the law, just as if you bought space in a newspaper or telephone book. So the legal and ethical rules of advertising for physicians apply. For example, your website should not contain patient or individual testimonials. The safest way is to concentrate on the facts of your practice: who you are, your level of experience, the services you provide and your practice’s location.

“The site can tell potential patients why they should select your practice, as long as the statements are not legally false, deceptive or misleading, as judged by authorities such as your state’s medical board. The American Medical Association Code of Medical Ethics says, ‘Generalized statements of satisfaction with a physician’s services may be made if they are representative of the experience of that physician’s patients.’

“While engaging in social media, physicians also should be aware of the Health Insurance Portability and Accountability Act’s privacy provisions. Even an inadvertent disclosure of a patient’s health information through social media can be a problem.

“It is important that practices establish a social media policy for a practice’s physicians and staff members. Your policy should outline what is acceptable use (if any) of personal social media during business hours. The following three W’s should be outlined.

  • “Who is permitted to post or tweet material to social media dedicated to the practice? Is someone designated as the practice’s poster or tweeter?
  • “What can be posted? The policy should address appropriate responses when people post material on the practice’s site. For example, someone might post a medical question on the practice’s Facebook page. From a liability perspective, you should not give medical advice through social media. A good response would be: “Thank you for your inquiry. Please call our office, and we will be happy to discuss this with you.”
  • “Where will the practice post? The policy should say which social media sites the practice uses and maintains.”

Stay in the safe zone…

We’re not offering legal advice here, but if any of the comments in this conversation raise questions with you, the conservative approach is to check with an attorney who is familiar with your profession and your state. Generally the best approach is to avoid legal issues in healthcare marketing before they blossom into problems.

Stewart Gandolf
Chief Executive Officer & Creative Director at Healthcare Success
Over the years Stewart has personally marketed and consulted for over 1,457 healthcare clients, ranging from private practices to multi-billion dollar corporations. Additionally, he has marketed a variety of America’s leading companies, including Citicorp, J. Walter Thompson, Grubb & Ellis, Bally Total Fitness, Wells Fargo and Chase Manhattan. Stewart co-founded our company, and today acts as Chief Executive Officer and Creative Director. He is also a frequent author and speaker on the topic of healthcare marketing. His personal accomplishments are supported by a loving wife and two beautiful daughters.



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