3 Core Legal Issues for Hospital Marketing Programs

Hospital direct-to-consumer marketing is increasing, and one of the preferred methods of interacting with consumers is social media. According to Ed Bennett, who manages web operations at the University of Maryland Medical Center and keeps a listing of U.S. hospitals on social media, 890 hospitals were involved in social media as of Oct. 2010. That number had increased to 1,229 by Oct. 2011 — an increase of almost 40 percent.

As hospitals increasingly use social media for marketing, several legal issues arise. This article briefly outlines three key concepts related to patient anonymity, statement validity and antikickback issues.

1. Maintain patient anonymity. Often, hospitals want to feature patients in their advertising or patient testimonials. Ensuring the hospital has appropriate patient sign-off from a privacy perspective is key. Even with ads that anonymously talk about patients, it is very important to ensure the patient is not traceable back in any way, shape or form.

When using patient lists, make sure appropriate HIPAA compliance requirements are met. Further, patient lists should never be used by third parties.

Dave Ekrem, who manages web development and social media for MassGeneral Hospital for Children, provides tips for avoiding HIPAA violations while marketing on social media in an article.

"Don't talk about patients, even in general terms," he writes. "It's so difficult to anonymize patients, it's not worth your time to attempt it."

Instead, he recommends that marketing focus on conditions, treatments and research.

"You can write about conditions, treatment options, research, or other topics in general terms," he writes. "Avoid: 'I saw a patient last Tuesday with xyz condition...' Okay: 'Children with xyz condition typically present with these symptoms...'"

Mr. Ekrem also advises against being anonymous on social media sites and in marketing.

"This has always been a warning sign in social media — even before Facebook and Twitter when we were using listserves and bulletin boards," he writes. "Anonymity breeds bad behavior. It encourages you to say things you shouldn't."

He recommends a simple test: If you wouldn't say it in an elevator, don't post it online.

"This is a famous test, probably repeated by compliance departments and trainers at hospitals all over the U.S. 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."

2. Never Overpromise. Be careful not to overpromise or to articulate something that cannot be truly supported. For example, often specialists will indicate they are the best or a superior specialist or there is some other kind of distinction. If this cannot be directly supported, it cannot be used. Further, specialties are increasingly being attacked from marketing out of their specialty or in areas where they are not appropriately trained. Again, this is partially a marketing issue and partially a practice issue where parties must be careful not to market areas they are not properly focused on or trained in or is not a core part of their practice.

The same concept holds true for hospitals as well. For example, many systems have begun to aggressively advertise quick emergency room waits. However, hospitals have to make sure they can back up these claims in practice. Many hospitals have marketed that they have an outstanding orthopedic or cardiovascular program. However, they have to make sure they can back this up as well.

The article, "Keep Your Healthcare Marketing on the Safe Side of HIPAA and other Legal Issues" by Lonnie Hirsch and Stewart Gandolf on the Healthcare Success Strategies website, supports this concept.

"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."

3. Think carefully about cost allocation to avoid Antikickback and Stark issues. When a hospital markets its own services, it is free to pay for the ad. However, if the ad will benefit a practice rather than the hospital itself, the hospital has to be wary of Antikickback and Stark law concerns. For example, if the real purpose of the ad is to reward the physicians or drive services to the physician's practice, and not to show off the hospital's services, then the physician should bear a portion percentage of the cost of the advertising. In contrast, when the advertising is for the hospital itself, it is much easier to defend against legal action.

Lynn Gordon at Ungaretti & Harris outlines some of these issues in the article "Hospital Physician Joint Marketing Compliance Guidelines," which was published in the Dec. 2008 issue of The Health Lawyer.

"It is important to note that CMS would preclude a hospital from marketing or advertising a physician and not charging for such services under the Nonmonetary Compensation Exception if the physician (or a practice staff member) directly solicits such support from the hospital. Accordingly, in the event a hospital would like to offer marketing services such as shared advertising with members of the Medical Staff, and not charge for same to the extent the value does not exceed $338 (or such higher amount as may be applicable in the future), it would need to offer this service rather than respond to requests for such services. Moreover, for compliance purposes, such benefit should be offered at the same level to all medical staff members."

Related Articles on Hospital Marketing:
Keeping Your Web-utation: 5 Tips to Manage a Hospital's Brand Online
Taming a Hospital Crisis: 7 Rules Of the Road
5 Tips for Hospitals Marketing to Patients Through New Technology

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