A Comprehensive Guide on HIPAA-Compliant Marketing

A Comprehensive Guide on HIPAA-Compliant Marketing

To implement HIPAA-compliant marketing covered entities must ensure secure storage, transfer, and use of PHI and ePHI.

By: Mussarat Nosheen | 7 mins read
Published: Oct 5, 2023 7:12:00 AM | Updated: May 22, 2024 02:50:06 AM

Like any other industry, the healthcare industry also relies on marketing to promote its services and engage patients. 

Restrictions around patient data usage make it difficult to find the right balance between data protection and effective healthcare marketing. 

HIPAA-compliant marketing is the departure from traditional marketing to maintain a balance between fulfilling legal obligations and healthcare marketing. 

Read along to find out about HIPAA-compliant marketing and its implementation. 

What is HIPAA?

HIPAA requires that patient data collection, storage, transfer, and maintenance are carried out while ensuring the privacy and security of protected health information

It has a privacy rule to cover the patient data and a security rule to ensure the electronic patient data when healthcare companies collect patient data for data processing and patient journey mapping.

The omnibus rule extends the data privacy and security obligations to organizations working for the covered entities and dealing with PHI. 

The breach rule sets out terms for notifying individuals if impermissible disclosure of their protected information occurs. 

Who Does HIPAA Apply To?

Covered Entities 

These are organizations that directly collect, create, and transmit PHI for the sake of patient care provision.

  • Health Plans - medical services or prescription drug insurers, including Medicaid or employer/government/ church sponsored/multiemployer health plans. 
  • Health Care Providers - organizations and individuals engaged in providing health services such as hospitals, physicians, dentists, and other practitioners. 

It also includes individuals or organizations that furnish, pay, or are paid for health services. 

  • Health Care Clearinghouses - organizations that receive and transform nonstandard PHI into standard information or the other way around for a health care provider or a health plan. 

Such institutes include community health management information systems, billing services, value-added networks, or repricing companies. 

Remember 

Most of the time clearing houses will be acting as the business associates of health plans and care providers. Therefore a different set of regulations would apply to them. 

Business Associates

An individual or organization that performs certain services for a covered entity involving directly receiving and dealing with patient PHI

HIPAA Privacy Rule

The Privacy Rule defines the protected health information and entities on which HIPAA applies and makes provisions for the permissible use and disclosure of the PHI to ensure patients’ data privacy.

What is Protected Health Information?

It includes information such as name, demography, medical diagnosis, treatment, and payment for such services that can allow the identification of an individual patient. 

HIPAA has designated 18 identifiers that count as PHI. It enlists information like geographic location and IP addresses as well. 

Collection, handling, and transmission of these are subject to the HIPAA regulations

Permissible Use and Disclosure of PHI?

Besides enforcing protection against patient data disclosure to people not involved in health care provision, HIPAA also has rules for sharing the data. 

The permissible use and disclosure of patient PHI include

  • Individuals to whom the information belongs.
  • To care providers or other covered entities for the treatment, payment, and health care operations.
  • Use within facility directories (records) and for notification and other purposes (to the patient’s family, friends, or others identified by them).
  • Incidental use or disclosure (unpreventable secondary use) of patient information happens due to a permissible use or disclosure. 
  • Use and disclosure for the sake of public interest and benefit activities.

Permissions for Use and Disclosure of Protected Health Information

Consent 

It is an informal permission assumed for creating and storing patient PHI in the medical facility or notifying the individual’s family or people identified by themselves. 

It is subject to the opportunity for the patient to object. 

Authorization

For purposes other than care provision or their associated activities, the use and disclosure of a patient’s PHI requires explicit authorization in writing from the patient. 

Marketing

HIPAA defines healthcare-related marketing as

  • Communication to encourage the purchase or use of the product/service
  • Selling PHI to another entity for targeted marketing for the purchase of a product or service
  • Selling patient lists to third parties (for targeted marketing)

All of the activities listed as HIPAA-defined marketing activities require authorization from a patient. 

That also means that a covered entity needs explicit permission (authorization) to market a product or services of an associated facility.  

However, not all communication about facilities other than the ones already in use is considered marketing. 

A covered entity may

  • Communicate promotional gifts of nominal value to the existing services
  • Face-to-face marketing communications with the patient
  • Inform patients about a new healthcare facility at their premises

HIPAA Security Rule

The Security Rule focuses on a subset of protected health information, the electronic PHI

It binds CEs and BAs to; 

  • Ensure the confidentiality, integrity, and availability of the e-PHIs   
    • Confidentiality - e-PHI is not accessed by or disclosed to unauthorized personnel 
    • Integrity - e-PHI is not altered or destroyed
    • Availability - e-PHI can be accessed or used by an authorized person on demand
  • Identify anticipated threats and protect against them
  • Ensure workforce compliance 

Risk Analysis and Management

For the security component, entities are required to conduct a detailed risk analysis, identifying the risks and vulnerabilities of electronic PHI

Once identified as part of the management, they need to establish appropriate protective measures, document them, and ensure maintenance. 

Administrative Safeguards

As the title suggests, these are safeguards designed for and implemented at the administrative level of the entities to secure the environment of the e-PHI

Physical Safeguards

These safeguards are implemented to protect the physical infrastructure and assets where e-PHI is stored or processed. 

  • Facility Access and Control - limit physical access to the facilities with the electronic information systems by allowing only authorized access.
  • Workstation and Device Security - implement policies and procedures to define the proper access to the workstation and devices; for the proper transfer, removal, disposal, and reuse of electronic media, and ensure protection of the e-PHI

Technical Safeguards

These involve implementing technological measures to control access, ensure data integrity, and respond to security incidents. 

  • Access Control - allow authorized access to the electronic protected health information
  • Integrity Controls - implement policies, procedures, and electronic measures to ensure that e-PHI is not improperly altered or destroyed
  • Transmission Security - implement technical security measures to prevent unauthorized access to e-PHI while it is being transmitted electronically

HIPAA Compliant Marketing 

HIPAA-compliant marketing bypasses traditional analytical tools to ensure the privacy and security of patients’ protected information in line with HIPAA requirements which is why to remain HIPAA Compliant, Google Analytics must not be used for tracking either.

It is achieved through an array of different approaches involving patients’ control over their data usage, secure data collection, processing, and transmission.

Let us discuss the marketing strategies that enable patient engagement and services marketing without compromising patient data.  

Secure PHI Incorporation Into Marketing Campaigns

De-identification and Anonymization Techniques

De-identification refers to removing identifiers from the patient data and assigning it an encrypted identifier for healthcare provision purposes.

Anonymization on the other hand involves modifying the patient data so that it is difficult to connect the data with the individual. 

De-identification and anonymization ensure;

  • e-PHI is secure at rest and in transit
  • Patient data safety at portals and within databases
  • PHI protection during payment transactions

The data left behind is broader with limited demographic information. 

Marketers can still make use of this data by incorporating it with patient behavior and still manage to run campaigns that offer a solid return on investment. 

Patient Consent and Authorization

HIPAA mandates that you seek unofficial consent from the patient for data storage and use for care provision. 

While not necessary, it is a best practice to get signed consent forms and maintain them.

It is necessary, however, that you get authorization signed for sending marketing emails to the patients. 

So, for HIPAA-compliant marketing;

  • Seek consent (written is better but not required) from patients for receiving emails and messages
  • Seek written authorization to;
    • Receive marketing campaigns
    • Use PHI in emails
    • Use PHIs for social media marketing
    • Use patient images or videos for marketing
  • Give the option to opt out of receiving email and message communications

Do note that sharing information about your services does not constitute marketing and does not require authorization.

Sending such communications via email has implications for the safe transfer of e-PHIs, which we will address in the next section. 

Secure Data Storage and Transmission

As the covered entities’ reliance on technology increases, so do the risks to electronic protected health information. 

In 2023 alone, a massive 41 million individuals’ sensitive health data was breached due to ransomware. 

Ensuring secure data storage and transmission is crucial to HIPAA at all stages of data handling, including marketing. 

Encrypted Data Storage and Backup

Choosing relevant security measures for data storage is integral to PHI security. 

Data encryption is a widely adapted safeguard that could leave patient information unusable and unreadable to an unauthorized person.

Entities can choose to have PHI encryption to ensure the safety of the data onsite and in transit to their business associates or even patients. 

For HIPAA-compliant data storage

  • Encrypt data collected on the website
  • Store encrypted e-PHI on an off-site backup server
  • Display your privacy policy on your homepage
  • Sign a business associate agreement with your web hosting provider

Maintaining an off-site backup for the encrypted patient information is another protective measure to ensure you have something in case of a system breakdown or other emergency.

HIPAA-Compliant Cloud Storage

Cloud storage is a popular choice to minimize storage costs and ease of access. 

However, traditional cloud storage services can pose a risk to PHI security. 

A cloud storage suitable for health care should have the following

  • End-to-end encryption for data storage and transfer
  • Access controls and authentication 
  • Legal compliance with HIPAA and other industry standards
  • Security monitoring and audit implementation
  • Sign a business associate agreement

Given all these requirements are being met, a HIPAA-compliant cloud storage can be used for e-PHI storage as well as hosting apps for data collection and processing.

Secure Data Transmission

Like the data collection and storage stage, data transmission also needs encryption to ensure that it remains secure. 

Activities like ending emails, or messages are subject to these requirements because sensitive information like email ID or contact number or the contents of the email can be snooped on by unauthorized people on the internet. 

To avoid this, use secure data transfer technologies like transport layer security (TLS) to ensure the safety of internal and external communications.

It ensures that the emails and messages being sent out are encrypted and that only the sender and receiver know the contents. 

HIPAA Compliant CRM System

Customer Relationship Management (CRM) systems help organize, analyze, and manage customer interactions and data. 

Having evolved from a mere sales tool into user (patient) management and marketing, CRMs are at the center of modern marketing. 

Like other tools and systems, a HIPAA-compliant CRM has to meet the patient's e-PHI privacy and security standards. 

It means the data storage and transfer need to be protected through encryption, access controls, data backups, and audit trails need to be maintained. 

A HIPAA-compliant CRM allows you to

  • Track patients, including their history and interaction
  • Offer customer support and enhance customer satisfaction
  • Enhance patient engagement via personalized engagement and follow-up
  • Generate automated targeted marketing campaigns 

Access Control and Authentication

Access control is a technical safeguard where only authorized workers can access the e-PHI. 

It is implemented through authentication, whereby a person needs to enter their credentials and verify their identity. 

This way, only a limited number of individuals can access e-PHI on a role-based access control basis, only to perform their duties. 

Adding multi-factor authentication for access can provide an additional layer of security. 

Conclusion

HIPAA-compliant marketing involves engaging individuals without compromising on the privacy and security of their protected health information. 

The privacy rule stipulates that covered entities need patient consent for the use and storage of their PHI for on-site storage and notification.

For any communication involving their PHI such as email or messages, they need patients’ written authorization. The same goes for patients receiving marketing communications.

The security rule mandates risk analysis of the ePHI security and its management. It requires administrative, physical, and technical safeguards for ePHI security. 

To implement HIPAA-compliant marketing covered entities must ensure secure storage, transfer, and use of PHI and ePHI. 

They must extend these protections to the data used and disclose to their business associates with a business associate agreement

Some of the ways to achieve it include encrypted e-PHI storage on site and maintaining an offsite backup of the same. 

Use secure HIPAA-compliant Cloud Storage, encrypted data transmission including emails and messages, employ HIPAA-compliant CRM for robust patient management and marketing campaigns, and employ access control and authentication.

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