The real difference between treatment and marketing emails

The real difference between treatment and marketing emails in healthcare lies in their purpose: treatment emails focus on managing a patient's direct healthcare needs without prior consent, whereas marketing emails promote products or services and require explicit patient authorization.

What is a treatment email?

Under HIPAA, a treatment email refers to any email communication involved in coordinating or managing patient care. These emails streamline healthcare service delivery by allowing providers to share relevant patient information efficiently and effectively, thereby enhancing the quality of care.

According to the HIPAA Privacy Rule (45 CFR Part 160 and Subparts A and E of Part 164), treatment emails are allowed to use and disclose protected health information (PHI) for treatment without requiring patient consent. The provision allows healthcare providers can communicate necessary information swiftly to deliver coordinated care.

Based on guidance from the HHS FAQs, “...while the Privacy Rule does not prohibit the use of unencrypted e-mail for treatment-related communications between health care providers and patients, other safeguards should be applied to reasonably protect privacy, such as limiting the amount or type of information disclosed through the unencrypted e-mail.”

What is a marketing email?

HHS FAQs also provides, “The Privacy Rule defines “marketing” as making “a communication about a product or service that encourages recipients of the communication to purchase or use the product or service.” Generally, if the communication is “marketing,” then the communication can occur only if the covered entity first obtains an individual’s “authorization....”

A marketing email is specifically designed to send promotional content about health-related products, services, or upcoming treatment opportunities to patients. These emails are meant to engage patients by informing them about beneficial health programs, innovative treatments, or new medical products that might improve their health outcomes. 

Under the Privacy Rule codified at 45 CFR Part 160 and Subparts A and E of Part 164, any use of PHI for marketing requires explicit patient authorization. It allows patients to retain control over their PHI and fully know its usage in marketing contexts. 

The rule clearly distinguishes between communications that require consent, such as those involving direct or indirect remuneration from third parties, and those that are exempt, like communications about currently prescribed drugs or face-to-face communications. 

How to tell the difference between treatment and marketing emails

Content and purpose

1. Treatment emails: The content is directly related to the patient's care. This includes discussions about treatment options, appointment scheduling, medical prescriptions, or updates about ongoing care from healthcare providers. The purpose is purely to manage or enhance the patient's treatment and overall health outcomes.
2. Marketing emails: These contain promotional material aimed at selling or advertising health-related products and services. The content might include information about new drugs, medical equipment, health plans, or wellness programs and often has calls to action like special offers or links to purchase products.
   
   

Intent

1. Treatment emails: There is no commercial intent. the intent is to communicate information necessary for the diagnosis or treatment of the patient.
2. Marketing emails: There is a clear commercial intent to promote a product or service. These emails often benefit the sender either directly through sales or indirectly through brand promotion.
   
   

Consent requirements under HIPAA

1. Treatment emails: Do not require prior consent from the patient, as they are considered for the provision of healthcare and fall under the operations of healthcare provision.
2. Marketing emails: If the information leads to direct or indirect financial benefit to the sender, require explicit prior authorization from the patient. This ensures that patients have agreed to receive such communications, reflecting their awareness and consent to use their health information in a marketing context.

Why it's necessary to know the difference

When patients can differentiate between these emails, they are better equipped to protect their personal health information and consent preferences. For healthcare providers, correctly categorizing emails ensures compliance with HIPAA. 

The purpose for understanding this difference can be summed up as, “The HIPAA Privacy Rule defines these terms specifically, so they can be distinguished. For example, the Privacy Rule excludes treatment communications and certain health care operations activities from the definition of “marketing.” If a communication falls under one of the definition’s exceptions, the marketing rules do not apply.”

This clarity in communication types also improves the trust patients place in their healthcare providers, as they can be confident that their personal information is being used appropriately and solely for their care unless explicitly authorized otherwise for marketing purposes. The distinction prevents the misuse of sensitive health data for commercial gains.

FAQs

What is consent?

Consent is the informed agreement given by a patient allowing a healthcare provider to use their personal health information for specified purposes.

How can providers receive consent for marketing emails?

Providers can receive consent for marketing emails by obtaining a clear, documented agreement from the patient, typically through a signed form or a digital agreement process, explicitly stating that the patient agrees to receive promotional communications.

What is TPO?

TPO stands for Treatment, Payment, and Healthcare Operations; it's a designation within HIPAA that allows covered entities to use or disclose protected health information for these specific purposes without obtaining prior consent from the patient.