What is “Marketing”?

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.” This definition of marketing has certain exceptions, as discussed below. Examples of “marketing” communications requiring prior authorization are:

  1. A communication from a hospital informing former patients about a cardiac facility, that is not part of the hospital, that can provide a baseline EKG for $39, when the communication is not for the purpose of providing treatment advice.
  2. A communication from a health insurer promoting a home and casualty insurance product offered by the same company.

What Else is “Marketing”?

Marketing also means: “An arrangement between a covered entity and any other entity whereby the covered entity discloses protected health information to the other entity, in exchange for direct or indirect remuneration, for the other entity or its affiliate to make a communication about its own product or service that encourages recipients of the communication to purchase or use that product or service.” This part of the definition to marketing has no exceptions. The individual must authorize these marketing communications before they can occur. Not included in this definition are: 

  1. communications made by a covered entity for the purpose of describing the participating providers and health plans in a network, or describing the services offered by a provider or the benefits covered by a health plan; and 

  2. communications made by a health care provider as part of the treatment of a patient and for the purpose of furthering that treatment, or made by a provider or health plan in the course of managing an individual's treatment or recommending an alternative treatment.
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