The Legal Aspects of Using Data for Marketing

Patient data is a key tool for marketing your business, but be careful how you use it.

• By Joseph Duffy
• Feb 01, 2018

Jeffrey S. Baird, Esq., is Chairman of the Health Care Group, Brown & Fortunato, P.C. The Health Care Group represents an extensive client base of HME companies, pharmacies, hospitals and other health care providers throughout the United States. HME Business recently asked Baird some questions about data-driven marketing.

HME BUSINESS: What is your overall opinion regarding providers using patient and claims data for marketing? How important for business growth is patient and claims data collection?

BAIRD: It goes without saying that it is much more cost-effective for a DME supplier to cross-sell to existing customers than to obtain new customers. The two most important assets that a DME supplier has are its ‘brand’ and its relationship to its current and former customers. If a customer trusts the supplier to purchase or rent Product A from the supplier, then the customer will feel comfortable in purchasing Products B, C and D from the supplier. Products B, C and D do not have to be Medicare-covered items; in fact, Products B, C and D do not even have to be healthcare items. And so the DME supplier needs to collect and study information about its customers and ‘build a profile’ of its customers. With this information in mind, the supplier can offer multiple products and services (often for cash) to its customers.

HME BUSINESS: What are the legal implications providers must adhere to when collecting patient and claims data to be used for marketing?

BAIRD: The DME supplier needs to be aware of the HIPAA marketing restrictions. HIPAA prohibits a supplier from using or disclosing a customer’s ‘protected health information’ (or PHI) unless such use/disclosure falls within a HIPAA exception. These exceptions include: the use/disclosure pertains to a healthcare product/service provided by the supplier; the use/disclosure pertains to products/services provided by another supplier/provider for the purposes of healthcare treatment and/or care coordination of the customer...and the supplier (using or disclosing the PHI) receives no remuneration for such use/disclosure; or the customer has given his/her prior written consent for such use/disclosure.

It is important for DME suppliers to lessen their dependence on Medicare. An important way to do this is to sell products and/or provide services for cash. In doing so, the supplier needs to be aware of HIPAA restrictions regarding the use/disclosure of PHI.

This article originally appeared in the February 2018 issue of HME Business.