How HIPAA distinguishes between marketing and treatment emails

Written by Kirsten Peremore | August 24, 2023

HIPAA imposes specific requirements for using and disclosing protected health information (PHI). Understanding the distinction between marketing and treatment emails helps healthcare providers comply with both HIPAA and CAN-SPAM requirements.

Marketing emails

How does HIPAA define marketing emails?

Marketing emails, as defined by the HHS, refer to electronic communications that promote products or services with the intent to encourage recipients to purchase or use those offerings. These emails encompass a wide range of messages aimed at engaging individuals in various healthcare-related actions. In the context of healthcare, marketing emails can include communications from covered entities informing recipients about products or services that may not be directly related to their treatment.

This includes arrangements where a covered entity discloses PHI in exchange for direct or indirect remuneration. Examples involve announcements of medical facilities, insurance products, or health-related devices. These include:

Promotions for health products
Healthcare services offerings
Health plan upgrades
Medical facility events
Clinical trial invitations
Discounts and offers
Health and wellness classes
Health screenings
Patient loyalty programs
New medication introductions

HIPAA requirements

Authorization requirement/consent: Covered entities are allowed to send marketing emails to patients, but they must obtain consent from the individuals before doing so. Marketing emails encourage recipients to purchase or use products or services.
Communication safeguards: Covered entities must implement reasonable safeguards when sending marketing emails containing PHI. Safeguards, like HIPAA compliant email marketing, are meant to prevent unintentional disclosures.
HIPAA Security Rule: Any transmission of electronic PHI, including marketing emails, should comply with the HIPAA Security Rule requirements, ensuring the security and privacy of electronic communications.

CAN-SPAN requirements

Clear identification: The sender must clearly identify themselves in the email, including accurate "From" and "Reply-To" information.
Subject lines: Subject lines must accurately reflect the content of the email and not be misleading.
Opt-out mechanism: Emails must include a clear and conspicuous way for recipients to opt out or unsubscribe from future emails. Opt-out requests must be honored promptly.
Physical address: The email must include a valid physical postal address for the sender or the entity they represent.
Commercial content: If the email contains commercial content, it should be identified as such.
Consent: While the CAN-SPAM Act doesn't require explicit consent for sending marketing emails, obtaining recipients' consent (opt-in) is a best practice and can help demonstrate compliance.
Honesty: The email's content must not be deceptive or misleading, and headers, routing information, and subject lines must not be falsified.
Prompt processing: Opt-out requests should be processed promptly, typically within 10 business day

Treatment emails

How does HIPAA define treatment emails?

Treatment emails refer to electronic communications sent by healthcare providers to patients as part of their medical care and treatment. These emails are not considered marketing under HIPAA and are exempt from certain authorization requirements. Examples of treatment emails can include:

Prescription refill reminders
Follow up instructions
Test results and reports
Appointment reminders
Treatment recommendations
Case management and care coordination

HIPAA requirements

Reasonable Safeguards: Even though authorization isn't required for treatment emails, healthcare providers should still implement HIPAA's Security Rule safeguards to protect the privacy and security of patients' PHI (PHI). This can include verifying email addresses, confirming addresses with patients, and limiting the amount of sensitive information disclosed.
Patient Preferences: Healthcare providers must respect and accommodate patients' preferences for communication. Providers should reasonably accommodate these preferences if a patient requests alternative means of communication or locations for receiving messages.
Communication safeguards: Healthcare providers must establish appropriate measures when sending treatment emails containing patients' PHI. These safeguards are designed to prevent accidental disclosures and may involve using HIPAA compliant email services.

How HIPAA distinguishes between marketing and treatment emails

Marketing emails are promotional and typically aim to generate sales or engagement. Marketing emails require prior authorization from patients before being sent, and they must adhere to both HIPAA regulations and the CAN-SPAM Act. Examples of marketing emails include announcements of healthcare-related products or services that are not directly related to the patient's immediate treatment.

Unlike marketing emails, treatment emails do not require prior authorization from patients. However, healthcare providers must implement reasonable safeguards to protect the privacy and security of patients' PHI. Treatment emails are exempt from marketing regulations and are necessary to facilitate effective patient care.

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