The SHSMD annual conference continues with a great health brand communications presentation by Joel English, Managing Partner of BVK.  Joel succinctly shared the most important thing that every health marketer should know:

The valuation of a healthcare system’s brand is the highest asset on its balance sheet.

Here are some things to remember in protecting the integrity of your healthcare brand:

Health brands are goodwill.  Your health brand is an intangible asset. In the healthcare context, a brand includes health system and facility names, marketing campaign names, slogans, and logos.  It also includes marketing copy, images, and proprietary research, products and services.  A healthy brand is the result of cumulative goodwill cultivated at great cost and expense to an organization.

Health brands can be injured.   Healthcare brands, like other brands, are not immune to damage.  In the health marketing context, this often is the result of failure to follow HIPAA marketing rules, trademark and copyright clearance, or making unsubstantiated advertising claims.  So damage to a health brand is not just about attorney’s fees and monetary damages; it is about potential injury to your reputation.

Brand Health is your responsibility.   According to Joel, a brand is the responsibility of all members of the healthcare organization; including their outside agencies, and everyone who has contact or who influences an organization’s customers and communities.  Brand is the unified theory of everything; the context of how we act and communicate.

Editor’s Note:  Healthcare brands spends millions of dollars per year on marketing and advertising.  The overall goal of such efforts is to strengthen and differentiate the brand among relevant consumers.  Done right, health brand marketing can result in greater revenue and improved brand equity.  But if healthcare organizations fail to clear brand names or implement HIPAA marketing and related compliance training, their brand equity could quickly suffer from injury to brand reputation.  This is in addition to potential six-or seven figure monetary damages and attorney’s fees that could result from unaddressed marketing risks.

Responsible health marketing compliance starts with proper employee training.

Who needs training.   If you and your company are a provider of health and wellness products and services, you are obligated to comply with various health marketing laws.  This includes health systems, hospitals, clinics, and physician practices.  It also applies to the marketing of health products and solutions to the general public, such as medical and long-term care insurance, nutritional supplements, fitness products, and natural remedies and personal care.

Applicable laws and regulations.  There are several federal laws and regulations regarding the proper advertising and marketing of healthcare solutions.  Some help protect your own brand and marketing efforts, while others help you mitigate the risk of infringing the rights of third-parties, including patients and competitors.  These include:

  1.  HIPAA Marketing rules.  The HIPAA Marketing Rules are promulgated by the U.S. Department of Health and Human Services.  The Rules give patients and consumers important controls over whether and how their protected health information (PHI) is used and disclosed for marketing purposes.  The rule generally requires covered entities to obtain permission to use PHI for marketing purposes, subject to certain exceptions.
  2.  Stark Law.  The Stark Law governs physician referrals.  Under the law, physicians are prohibited from referring patients to receive “designated health services” payable my Medicare or Medicaid to entities which the physician or immediate family member has a financial relationship.  Certain exceptions may apply.
  3. Lanham Act.  The Lanham Act governs the laws of trademark and unfair competition.  Prior to adopting a new brand name, slogan, or logo design, health providers need to properly clear the trademark to ensure that it is available for use and registration.   After a clearance search and opinion is provided and approved, it is recommended that the entity file a trademark application with the United States Patent and Trademark Office.
  4.  Copyright Act.   The most common, and potentially costly area of compliance if not followed, is copyright law.  Under the U.S. Copyright Act, copyrightable subject matter such as stock photos,  images, illustrations, and marketing copy and brochures are protected from unauthorized use.  The law also applies to the unauthorized distribution of copyrighted materials to fellow employees or colleagues, such as medical journals, articles, or other content for which your company has no subscription or license.
  5. FTC Regulations.   The U.S. Federal Trade Commission is the primary agency that enforces advertising laws and regulations.  The Federal Trademark Commission Act (FTCA) prohibits false and deceptive advertising, and other unfair trade practices.   Companies that offer and market healthcare solutions are obligated to substantiate all the material health and other claims made in their marketing and advertising.

Penalties for non-compliance.   The penalties for violations of law due to not having a health marketing compliance program can be severe.  Examples include injunctions, destruction of marketing collateral, monetary damages, and in some cases, treble damages and an award of attorney’s fees to the prevailing party for intentional acts.  This is separate and apart from the costly legal fees and disruption to business and reputation that may result from non-compliance.

Editor’s Note:  If you are a healthcare provider or marketer of health and wellness products, setting up a proper health marketing compliance program need not be complicated.  To discuss your compliance program education and monitoring needs, please contact James Hastings.

Failure to comply with the HIPAA Privacy Rule can have serious consequences to healthcare providers.

The HIPAA Privacy Rule gives individuals control over how their protected health information (PHI) may be used for marketing purposes.  With limited exceptions, the Rule requires that written authorization must be obtained prior to using an individual’s PHI for marketing purposes.

HIPAA Privacy Rule Basics

The Privacy Rule applies to the use and disclosure of health information for marketing by a qualified health provider.  For the Rule to apply, two criteria must be present: (1) marketing; (2) by a qualified health provider (also known as a covered entity).

What is marketing.   The HIPAA Privacy Rule defines “marketing” as a communication about a product or service that encourages recipients of the communication to purchase or use the product or service.  If the marketing is by a covered entity, it requires prior written authorization of the patient.  Examples of marketing communications that require prior written authorization are:

  1.   a hospital mailer informing former patients about a wellness clinic that is not part of the hospital, that can provide a health and wellness screening for $99.00, if the communication is not for the purpose of providing treatment advice.
  2.  an email communication from a health insurer promoting a home insurance product offered by the same company.

What else is considered marketing.  According to the HIPAA Privacy Rule, “marketing” also occurs where there is an an arrangement between a covered entity and any other party whereby the covered entity discloses protected health information of consumers to the other party in exchange for direct or indirect compensation.  This generally occurs in circumstances where the third-party or its affiliates are used to promote the covered entity’s products or services.  This part of the definition of marketing has no exceptions.  Covered entities may not sell lists of patients or enrollees to third parties without obtaining authorization from each person on the list.

What is not marketing.    The HIPAA Privacy Rule has three exceptions for permissible communications that will not be considered to be “marketing” for purposes of the Rule.  A communication is not marketing if it is made:

  1.  to describe a health-related product or service that is provided by or included in a plan of benefits of the covered entity
  2.  for treatment of the individual
  3.  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.

The HIPAA Privacy Rule has many other features that will be discussed in future articles.

Editor’s Note:  Adherence to the HIPAA Privacy Rule should be part of an overall health marketing compliance strategy.  For further information on how to develop and manage a health brand and marketing compliance program, contact the author.

A recent article by Healthcare Dive reports that nearly 90% of companies pay employees to participate in wellness programs.  This is a good thing.  Yet when it comes to ensuring their own brand protection health, most health brands and providers ignore their own advice.

Consider these legal health marketing scenarios:

Trademarks.  For every new health brand name or slogan that is adopted, chances are that most have not been properly cleared by a trademark attorney.   This is despite the fact that services rendered under the new trademark will in all likelihood earn millions of dollars of revenue for a provider and have six figure marketing budgets.  So how valuable is a healthcare name?  Certainly more than the few thousand dollars it will cost to properly search, clear, and apply to register the newly adopted trademark.

Copyright.  Marketing agencies produce millions of dollars in digital and print collateral for healthcare systems and providers annually.  Yet for many health brand owners, there is no legal compliance process in place to make sure that all creative materials comply with U.S. copyright laws and do not infringe the rights of third-parties.  And few have any system in place to catalog and protect all proprietary copyrightable subject matter and marketing materials on behalf of healthcare clients.

Social media.  The use of social media to promote patient testimonials and population health initiatives is increasing. With this growing trend is a heightened legal risk to health providers.  The social media marketing and promotional efforts of health providers must adhere to HIPAA Marketing Compliance and privacy rules as well as other federal laws applicable to truthful marketing and advertising.

As healthcare marketers continue to increase their spending on advertising, the associated legal risks of such activities continue to rise.  This is why it is vital for both healthcare providers and agencies to implement proactive legal wellness programs to prevent damage to their valuable brands and goodwill.

A recent survey by True North Custom confirms that content marketing continues to play a growing role in the marketing of healthcare brands.

The 2018 State of Healthcare Content Marketing Report provides a fascinating look into what healthcare marketers deem important.  It is a must read for those who wish to stay on top of trends and determine what is working and not working in the marketplace.  That being said, there is one question that we recommend be included in next year’s report:

Do you have a process in place to make sure that your marketing content is legally compliant?

Why should your organization have a marketing legal review process?  Here are some things to consider:

  • The cost of litigation can be expensive.   Any healthcare provider can attest to how litigation fees can severely impact the bottom line.  While healthcare system legal efforts often focus on regulatory and quality of care issues, missteps in marketing and brand protection can be just as deadly to brand reputation and budgets.
  • Brand reputation is worth the investment.   Brand names and reputation are some of the most valuable assets of any company, including those of healthcare providers.  So why not be proactive in protecting them?  When an issue arises that could tarnish your healthcare brand, it is often too late.
  • Marketing compliance makes sense.   When it comes to risk mitigation, an ounce of prevention is worth a pound of cure.  HIPAA marketing compliance, brand clearance, the proper use of patient testimonials, and other issues continue to face healthcare marketers every day.

Getting started with a Marketing Compliance Program

If you do not already have a health marketing compliance program in place, here’s what you can do:

  • Conduct a health marketing checkup.   Provide your brand protection attorneys with a selective sampling of your marketing materials.  Be sure to include examples from various channels, including social media, newsletters, video, and direct mail marketing.
  • Identify risk gaps in your marketing plan.   Your attorneys should be able to provide you with a diagnostic tool that helps identify marketing problem areas, together with recommendations to remediate problems and mitigate risks.
  • Make compliance easy to understand.   A red light, yellow light, and green light chart that indicates brand protection and marketing compliance risks from low to high often works best.  Recommendations should also be color-coded, based on low-priority to high priority tasks.

An effective healthcare brand protection and marketing compliance program need not be expensive or complicated.  But it is important that healthcare marketers partner with qualified health brand attorneys.  That way, there is a greater chance that your compliance efforts will be embraced by your organization and external marketing partners.  By doing so, it will help ensure the overall success of your health marketing strategies.

What’s new in healthcare marketing?  A greater focus on the law.

The evolution of healthcare marketing has resulted in greater legal obligations for the industry.  Today, more healthcare marketers are advertising directly to consumers.  Where traditional healthcare marketing was provider-centric, the modern approach emphasizes patient experience.  This model brings with it a multitude of new legal issues for the industry.

HIPAA Marketing rules.  HIPAA marketing rules require that patient health information (PHI) is adequately protected and not exploited for commercial purposes.  The rule generally requires covered entities to obtain permission to use PHI for marketing purposes, subject to certain exceptions.

Digital marketing trends.  According to a recent report article by Phase 2, digital health marketing efforts will continue to expand in 2018 and beyond.  The implementation of digital marketing campaigns require knowledge of various laws, including HIPAA privacy, social media, CAN-SPAM, and FTC regulations.  Digital health, the use of patient testimonials, and issues related to claims substantiation and HIPAA marketing bring with them unique challenges and risks.

Hospital rebranding.  Rebranding a hospital to a unified healthcare brand requires proper trademark search, clearance, and registration. Trademark clearance and registration of the unified brand is only the first step of the process.  Proper brand clearance planning and consideration must also be applied to slogans, sub-brands, and associated brand usage policies.

Social Media marketing.  Hospital advertising and promotional efforts have gone beyond quantitative performance metrics.  The rise of patient community websites and social media networks require greater scrutiny that health marketing and advertising claims are substantiated and patient privacy secured.

Healthcare brands are learning more about the importance of implementing brand and marketing compliance programs.   With greater competition comes the urge to explore new and bolder ways to market healthcare solutions.  The result is greater risk to the organization.   Your legal team should always be invited to be a key stakeholder in the marketing and promotions process.