The Health Insurance Portability and Accountability Act of 1996, more commonly known as HIPAA, is a long-standing federal law. But that doesn’t make it any easier to navigate for those who must comply with it — including healthcare marketers.
HIPAA governs patient information, also known as protected health information (PHI). It makes compliance in healthcare marketing efforts tricky — and costly if there are missteps.
In this post, we’ll take a closer look at this complex law and the rules marketers should know about PHI and HIPAA marketing compliance. We’ll also explain how tools like Invoca can help to ensure data security and HIPAA compliance in marketing.
What is HIPAA law? How are PHI and HIPAA intertwined? And what could happen if you make a mistake with HIPAA marketing compliance?
HIPAA sets guardrails for handling and communicating patients’ PHI and ensuring patient privacy. For marketers, it’s critical to understand that HIPAA prohibits the use or disclosure of PHI in marketing communications without prior written patient authorization.
It’s safe to say that 99.9% of healthcare marketing communications are governed by HIPAA, and PHI compliance is required. And penalties for noncompliance with HIPAA regulations can be very steep. Federal fines can be as high as $50,000 per violation. Criminal penalties, sometimes leading to imprisonment, can also be applied for egregious, intentional violations. HIPAA violators are also subject to fines at the state level and strict corrective measures.
Since 2003, the U.S. Department of Health and Human Services has investigated over 342,000 PHI and HIPAA complaints and collected nearly $137 million in fines. So, healthcare organizations and their marketers need to ensure that everything is buttoned up tight when it comes to HIPAA compliance and marketing that involves PHI.
PHI is any personally identifiable health information about an individual received by a covered entity that is communicated in any way (e.g., verbally, recorded, or written down). Covered entities include healthcare providers such as hospitals, doctors and dentists, clinics, nursing homes, and pharmacies; health plans such as health insurance companies, HMOs, employer-sponsored plans, and even Medicare; and clearinghouses, consultants, and third-party administrators.
HIPAA established federal oversight of individuals’ rights regarding PHI. It is the legislative structure that requires a covered entity to protect patient privacy.
Financial penalties are a major reason that healthcare marketing professionals and organizations want to avoid running afoul of PHI and HIPAA guidelines. But trust and reputation are also critical considerations. People aren’t likely to continue using a clinic or doctor if their protected health information is leaked by those covered entities or used against their wishes. And if word spreads about such a misstep, it could be very damaging for a healthcare provider or business.
HIPAA violation examples can be enlightening. Did you know that even if a covered entity conducts HIPAA compliance training, failing to document that training can result in a violation? Or that failure by a covered entity to plan for a cyberattack where PHI is exposed or stolen can lead to a fine?
Other serious HIPAA violations include failing to properly shred documents containing PHI before disposal, and security breaches by external covered entities, such as a vendor failing to use encryption when transferring an individual’s PHI.
HIPAA violations can also arise from social sharing. For example, say that an employee working at a nurse’s station on a hospital floor posts a picture of themselves at work on a social media site. In the background of that photo is a patient lying on a gurney. If that patient on the gurney did not explicitly give permission to have their photo taken and posted online, then their privacy has been violated.
Privacy breaches aren’t just embarrassing; they can be harmful to individuals. Take, for example, a situation where an employer learns of an employee’s serious medical condition through a privacy breach. What if the employer then discriminates against that employee by reassigning them to another job or forcing them to take unpaid time off?
While this is an extreme example, the possibility of harm or discrimination to individuals clearly exists. That’s why protecting PHI is so crucial, regardless of any HIPAA marketing compliance mandate.
Knowing all this, you’d think that HIPAA would make healthcare marketing almost impossible. Luckily for healthcare businesses and their marketing teams, that’s not the case.
There are rules specifically related to regulating marketing activities by covered entities. These rules highlight the importance of protecting PHI and the potential consequences of noncompliance. They also offer a road map for managing HIPAA marketing compliance effectively.
Here are seven regulations outlined in HIPAA that, if followed correctly, allow healthcare organizations and other covered entities to successfully conduct marketing communications activities without compromising patient data privacy.
Common sense says you can get permission from an individual to use PHI for marketing communications — and so does HIPAA. This consent can take the form of written or electronic authorization. What’s typical is a document signed by the individual clearly giving covered entities permission to use PHI for purposes other than those already specified by the patient, such as use by doctors or staff, and in normal healthcare operations like treatment and payment for services.
When healthcare providers have authorization to use PHI for marketing purposes, they must adhere to the Minimum Necessary Rule. This rule limits the use and disclosure of PHI to the minimum necessary information needed to accomplish the intended purpose of the marketing activity.
HIPAA requires a covered entity to offer patients the chance to opt out of future marketing communications.
HIPAA requires a covered entity to be transparent about marketing activity. Covered entities must disclose the purpose of any marketing activity. They also must reveal whether there is a financial relationship between the organization and any third-party vendor who may be involved in the marketing activity.
HIPAA privacy and security rules guarantee patients’ anonymity even if the patients permit the use of their PHI by covered entities. HIPAA regulations require a covered entity to de-identify PHI before using it in marketing.
Vendors and associated businesses are covered entities and must also comply with HIPAA. Healthcare organizations must ensure that third parties involved in marketing activities are HIPAA-compliant and have appropriate systems to safeguard patient privacy and PHI.
HIPAA requires employees to receive regular training on HIPAA regulations and be aware of rule changes. What’s more, a covered entity must maintain a record of all communications and disclosures of PHI, as well as employee training policies.
HIPAA requires records and communications to be kept for six years from the date the policy was created or the last day the policy was in place, whichever is later.
As we’ve indicated before, the costs for HIPAA noncompliance are high. Here are some of the penalties healthcare enterprises may face if they knowingly or unknowingly fail to comply with HIPAA regulations in their marketing activities.
With all these potential downsides, it’s critical for healthcare organizations to have HIPAA compliance as a key goal of the marketing function. Making HIPAA compliance and PHI safeguarding high priorities when implementing a marketing or communications program — and accurately documenting HIPAA compliance related to that program — can save a lot of headaches later.
If you don’t have a plan for HIPAA marketing compliance, the six strategies outlined below can help you develop one. These measures can guide your efforts to keep your patients’ PHI safe and secure — and your healthcare marketing organization on the right side of HIPAA.
Conduct a detailed evaluation of all aspects of your marketing campaigns to identify and isolate any vulnerabilities. This exercise should include an analysis of data collection, and how and where data is being stored, processed, and transferred, to identify any potential risks or gaps in data security.
What are the risks you face in using PHI to inform your marketing campaigns? Can patients’ personal healthcare information and data be compromised? Conduct a thorough risk assessment to identify potential vulnerabilities in all your marketing activities.
You might consider using HIPAA Risk Assessment Software such as ManageEngine or HIPAA One. HealthIT.gov, the website of The Office of the National Coordinator for Health Information Technology, offers a free, downloadable HIPAA security risk assessment tool.
When you have a clear picture of your vulnerabilities and an assessment of ongoing risks, take time to draft policies and procedures to help guide and govern your use of PHI data. These policies should cover areas such as data collection, storage, sharing, and disposal.
Clearly and concisely communicate your HIPAA policies and processes to your marketing team. Make HIPAA training an ongoing commitment once, twice, or even more often during the year, to bring your team up to speed on the latest requirements.
Make sure you document your training efforts, too. Many HIPAA compliance software packages include training tools to help you with the process.
Protect PHI data by restricting access only to those employees who need access. Role-based access controls (RBAC) help ensure that only authorized personnel have access to PHI. And HIPAA compliance software implements guidelines to prevent breaches.
You can further protect PHI and other sensitive data by using encryption when transferring communications and multifactor authentication (MFA) to provide additional safeguards against unauthorized access to those communications.
Lastly, but perhaps most importantly, your data protection strategies are only going to work if your third-party partners have equally strong HIPAA-compliant processes in place. Vendors that handle PHI are also now required to execute a Business Associate Agreement (BAA). This establishes a legally binding relationship that ensures collection of PHI is permissible and will not violate HIPAA. Make sure your vendor will sign a BAA as some, such as Google, will not.
Partnering with vendors and service providers who have well-established HIPAA-compliant processes and protocols and that will sign a BAA can add an additional layer of protection to any marketing campaign.
At Invoca, we go to great lengths to protect customer data. As our healthcare customers must meet HIPAA’s high expectations for data security and HIPAA marketing compliance, so must we. The Department of Health & Human Services (HHS) issued a reminder bulletin outlining the use of online tracking as it relates to HIPAA in 2022, which added another wrinkle to healthcare marketing compliance. While the bulletin did not provide new guidance or policy, it led healthcare marketers to reevaluate their existing ad and website tracking solutions. In some cases, healthcare companies took the drastic action of removing conversion tags and turning off automated solutions like Google Ads Smart Bidding.
Many healthcare marketers are feeling some pain from losing access to data they relied on to optimize campaigns. However, they still have access to valuable first-party patient data they can use to power campaigns without running afoul of HIPAA and HHS.
The features of our conversation intelligence platform capture a tremendous amount of valuable data that we treat with the utmost care. Here’s how we do it.
Proper handling of your protected data is a top priority at Invoca. Invoca is HIPAA compliant and does not transmit PHI to third-party systems unless the customer explicitly creates such a data feed.
Invoca requires all HIPAA-covered entities to execute a Business Associate Agreement (BAA). This establishes a legally binding relationship that ensures Invoca’s collection of PHI is permissible and will not violate HIPAA. Invoca can provide and will sign BAAs with its healthcare customers to ensure compliance.
We also support secure authentication protocols such as two-factor and Security Assertion Markup Language (SAML).
Additionally, Invoca’s artificial intelligence (AI) can redact confidential PHI data automatically from call recordings and transcripts before they are stored as part of your call records. And we do not transmit PHI to third-party systems unless you explicitly create such a data feed.
Call quality and reliability are important facets of data security. The data should be unambiguous, so Invoca works closely with major telecom providers to make sure that customer calls are routed correctly with high-quality audio.
Invoca maintains a telecom industry-recognized “excellent” call quality rating with a 4.4 mean opinion score, and our platform is engineered to deliver 99.999% uptime, ensuring system reliability.
Healthcare organizations need reliability as well as security when it comes to patient data and communications. Invoca operates on cloud-based infrastructure to create 100% redundancy across multiple geographies and maintain 99.999% uptime for our web application. Like our platform, our dedicated engineering teams are available 24/7/365 to monitor and maintain data security.
The integrity of data collected by Invoca’s conversation intelligence platform is buoyed by Call Quality, which works with major telecom providers, the FBI, and the Federal Communications Commission to analyze and investigate fraudulent calls that might taint data.
Invoca’s fraud protection begins before the call is even connected. We block over 6 million fraudulent and spam calls annually. Preventing fraudulent calls helps to maintain the integrity of communication reporting and saves businesses money.
Invoca has a wealth of experience helping healthcare clients build customer trust by maintaining HIPAA marketing compliance. Acadia Healthcare, Banner Health, Christus Health Plan, City of Hope, eHealth, and Vitas Healthcare are just some of the businesses in the healthcare industry using Invoca’s call tracking and analytics to create marketing efficiencies while complying with HIPAA.
Healthcare organizations seek to enhance the overall customer experience while staying in line with HIPAA privacy and security rules. Keeping PHI secure is central to those efforts, and Invoca helps healthcare providers meet that goal.
Another key aspect of the patient experience is the ominchannel journey you create for them as they move between digital touchpoints and offline channels. This is yet another area where Invoca’s product features and conversation intelligence can help you increase patient satisfaction and retention.
Healthcare organizations of any size can receive hundreds or thousands of phone calls per month. These calls include valuable data about patients, such as which digital ad drove them to schedule an appointment and if they’re new or repeat visitors. Invoca tracks and records each call to provide granular detail that gives marketing a better understanding of callers’ needs. This data can be translated into more effective, targeted, and personalized HIPAA-compliant marketing communications and strategies.
Invoca’s platform also smooths the individual customer journey in healthcare by routing calls more effectively. Patients spend less time on hold or speaking with receptionists about appointments and more time communicating with health specialists and getting the care and answers they need.
Even better is the fact that healthcare organizations can achieve all this — and more — with Invoca’s AI-powered technology while protecting patient information and maintaining HIPAA marketing compliance. For healthcare businesses and patients, that’s a win-win.
Want to learn more about how Invoca helps healthcare marketers improve the omnichannel experiences and drive more new patients? Check out these resources: