Marketing via text messaging offers healthcare providers an effective way to engage with patients and promote services. However, navigating the complexities of HIPAA compliance is essential to protect patient privacy and avoid legal repercussions.
Does HIPAA permit marketing via text messages?
HIPAA does not explicitly allow (or discourage) covered entities to engage in marketing via text messages; however, entities using text for marketing must adhere to specific regulations designed to protect patient privacy and ensure the security of PHI.
Why is HIPAA Important for Marketing?
Marketing activities in the healthcare sector often involve using patient data to personalize messages, promote services, or offer health-related products. However, misuse or unauthorized disclosure of PHI during these activities can lead to severe legal consequences, financial penalties, and loss of patient trust. Therefore, understanding HIPAA's provisions related to marketing is crucial for any healthcare entity looking to utilize text messaging as a marketing tool.
See also: HIPAA compliant email marketing: What you need to know
HIPAA compliance requirements for text message marketing
Obtaining explicit authorization
According to the HHS, “Any communication that meets the definition of marketing is not permitted, unless the covered entity obtains an individual’s authorization,” except:
- When new mothers leave the maternity ward, a hospital offers them a complimentary package of baby formula and other infant provisions, or
- When an insurance agent meets with a customer face-to-face to sell them a health insurance policy and takes the opportunity to promote additional casualty and life policies.
- Written consent is mandatory: Before sending marketing text messages that involve PHI, healthcare entities must obtain explicit written authorization from the patient. Consent must detail what information will be used, the purpose of its use, and the entities with whom it will be shared.
- Clear and specific authorization: The authorization form should be clear, concise, and specific. Vague or overly broad authorizations can lead to non-compliance issues.
- Revocation of consent: Patients can revoke their consent at any time. Systems should be in place to promptly honor such requests.
Content restrictions
- Avoid including PHI: Text messages should generally avoid containing PHI unless explicit authorization has been obtained.
- Non-PHI marketing content: Promotional messages that do not include PHI are permissible. For example, sending information about a new clinic opening or general wellness tips is acceptable if no PHI is disclosed.
Providing an opt-out mechanism
Each marketing text message must include a clear and simple way for recipients to opt out of future communications. This is in line with the unsubscribe option required in email marketing under the CAN-SPAM Act. Once a patient opts out, their request should be processed immediately to ensure they no longer receive marketing messages.
Ensuring security and encryption
If text messages contain PHI, they must be transmitted through secure, encrypted platforms to prevent unauthorized access.
Business associate agreements (BAAs)
If a third-party service provider (e.g., a text messaging platform) is used to send marketing messages, the healthcare entity must ensure that the provider is HIPAA compliant. A business associate agreement (BAA) must be signed with the service provider, outlining their responsibilities in protecting PHI and complying with HIPAA regulations.
Learn more: What is the purpose of a business associate agreement?
Best practices for HIPAA compliant text message marketing
To effectively use text messaging for marketing while staying compliant with HIPAA, consider the following best practices:
- Develop comprehensive consent forms: Ensure that consent forms are detailed, specifying the type of information used, the purpose of marketing, and the entities involved. Regularly update consent forms to reflect current marketing practices and regulatory changes.
- Train staff: Conduct regular training sessions for staff involved in marketing to ensure they understand HIPAA requirements and the importance of patient privacy. Emphasize the procedures for obtaining consent, handling PHI, and managing opt-out requests.
- Implement robust security measures: Use reputable, HIPAA compliant text messaging platforms offering encryption and secure data storage. Regularly audit and update security protocols to protect against data breaches and unauthorized access.
- Monitor and audit marketing practices: Conduct periodic audits to ensure all marketing activities comply with HIPAA regulations. Address any discrepancies or non-compliance issues promptly to mitigate risks.
- Maintain clear communication with patients: Communicate the purpose of marketing messages and how patient information will be used. Provide transparent options for patients to manage their communication preferences.
Potential penalties for non-compliance
Failure to comply with HIPAA regulations can result in significant penalties, including:
- Financial penalties: Fines can range from $141 to $71,162 per violation, depending on the severity and nature of the breach.
- Criminal charges: In cases of willful neglect, individuals responsible may face criminal charges, including imprisonment.
- Reputational damage: Non-compliance can erode patient trust, leading to loss of business and long-term reputational harm.
Read more: What are the penalties for HIPAA violations
FAQs
How long is a patient’s authorization for marketing valid?
A patient’s authorization for marketing is valid until the patient revokes it in writing.
Is it considered marketing if healthcare providers text about health-related products?
Yes, if the provider is being paid to promote a product, even if it’s health-related, it is considered marketing under HIPAA and requires patient consent. If no payment is involved and the product is related to treatment, it may not be classified as marketing.
Can a healthcare provider send surveys or feedback requests via text?
Healthcare providers can send patient surveys or feedback requests via text, as long as no PHI is disclosed and the communication is not considered marketing. However, the provider should still offer patients a way to opt out of these messages.