Last week we had an interesting call with a health insurance startup in California. The scope of the call was to learn more about Paubox Marketing, our solution to the need we see in the market for HIPAA compliant email marketing.
On the call, the prospect mentioned their general counsel informed them they could no longer use Mailchimp for their business. Instead, they would need to find a vendor who could in fact provide a true HIPAA compliant email marketing solution.
Their proposed use cases include:
By the end of the call, they expressed interest in becoming an a Paubox Marketing customer.
This post is about why using solutions like Mailchimp, which are not focused on addressing HIPAA compliant marketing, impose business risks to healthcare organizations.
As we've covered before, Mailchimp is a marketing automation platform and an email marketing service. Mailchimp began as a paid service and added a freemium option in 2009.
Under HIPAA Privacy Rule regulations, a business associate is a person or organization that performs certain functions or activities that involve the use or disclosure of protected health information (PHI) by a covered entity.
A business associate agreement (BAA) is a written contract between a covered entity and a business associate. It is required for HIPAA compliance.
As our research discovered, Mailchimp is simply not in the business of providing HIPAA compliant marketing services.
We can see for ourselves here on their Terms of Use page:
20. Compliance with Laws You represent and warrant that your use of Mailchimp will comply with all applicable laws and regulations. You’re responsible for determining whether our Services are suitable for you to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, or other laws. If you’re subject to regulations (like HIPAA) and you use our Service, then we won’t be liable if our Service doesn’t meet those requirements.In closing, what's arguably the biggest reason for HIPAA Entities to avoid solutions like Mailchimp? The valid threat of HIPAA fines.
If a BAA is not in place with a vendor that stores or handles PHI, that's a proven recipe for a sizable HIPAA fine.
Simply storing names and email addresses in a cloud marketing service like Mailchimp can be interpreted as storing PHI in its cloud.
According to HIPAA, even just a name is PHI if it is in any way associated with a healthcare provider—such as in a marketing email coming from your practice.
Any marketing email you send contains both a name and an email address in the header, so really, you can’t send any emails via Mailchimp in a HIPAA compliant manner. Furthermore, if the vendor isn't able to sign a BAA in the first place, it leaves an organization in an untenable position.
Last week's call with the health insurance startup underscores a need in the market for HIPAA compliant email marketing.
Large companies like Mailchimp are unwilling to take on the risk, burden, and overhead of HIPAA compliance. In addition, their email marketing solution is not built to send encrypted email in the first place.
In addition, Paubox Marketing is HITRUST CSF certified. Compared to the incumbent email marketing tools, Paubox Marketing is arguably the ideal solution for maintaining HIPAA compliance while harnessing the power of personalized email marketing.
SEE ALSO: Why Paubox Marketing is the Best HIPAA Email Marketing Solution Available
| Company | Will they sign a BAA? | Can you send PHI? |
| Adobe Campaign | NO | NO |
| Campaign Monitor | NO | NO |
| Campaigner | NO | NO |
| GetResponse | NO | NO |
| Hubspot | NO | NO |
| Mad Mimi (GoDaddy) | NO | NO |
| Mailchimp | NO | NO |
| MailerLite | NO | NO |
| Marketo (Adobe) | NO | NO |
| Salesforce Pardot | NO | NO |
| Schedulicity | NO | NO |
| SendGrid (Twilio) | NO | NO |
| Yesware | NO | NO |
| ActiveCampaign | YES | NO |
| Constant Contact | YES | NO |
| Infusionsoft by Keap | YES | NO |
| Salesforce Marketing Cloud | YES | NO |
| Eloqua (Oracle) | YES | YES ** |
| Paubox Marketing | YES | YES |
(** To use Oracle Eloqua in a HIPAA compliant manner, recipients receive two emails for every message you send. Patients must also log into a secure message center to view your message—it does not appear in their inboxes. This creates friction and makes it less likely that your patients will read your marketing email.)