Addiction Treatment Marketing: What’s Legal and What’s Not?

May 5, 2019

by Nick Jaworski, Digital Community Builder of Circle Social, Inc.

Healthcare has been rapidly evolving over the last decade with legal changes. People want more transparency. There are different opinions on how health insurance should be run. We have seen the introduction of value-based care models and bundled payment programs.

With all of the changes taking place, it can be challenging to navigate the legalities in the addiction treatment marketing field. You have to know what you legally can and can’t do and what you are legally bound to do. We want to help you know what is legal and what is not with addiction treatment marketing.

The following is a list of common mistakes that are made in addiction treatment marketing.

Displaying Logos From Other Businesses or Using Pictures Without Permission

No one would ever think to show you a picture of a Picasso or an excerpt from Shakespeare and try to pass it off as their own. They are both very well known and the odds of you being caught or called out are pretty good.

In today’s digital world, it seems as though the waters have become a bit murky. We get online every day and see people sharing items of interest even though they didn’t get permission and you know it isn’t theirs.

It becomes an issue when you are sharing or posting without permission or credit for your own gain. Even though many sites will list what insurances they take by displaying those all too familiar logos and names, that is copyright infringement and a trademark violation. Anthem Blue Cross Blue Shield, for example, is very particular when it comes to this. It is better to not take the risk as copyright infringement can carry up to a $150,000 fine per infringement, or even jail time.

Digital pictures and images are even more misused. People will download or rip pictures from websites or even just Google Images and think nothing of it. After all, they're just sitting right there and everyone does it. The truth, however, is that you should assume that all of those images carry a copyright. There are creative commons websites that allow you to download and use free photos but you still need to make sure that you are reading the Terms and Conditions, some may only let you use so many a month or require you to credit the artist for the image. It’s always better to be safe than sorry.

Using Competitor's Names in Search Engine Ads

NAATP has stated they are against this practice in their guidelines. Though there is nothing inherently illegal about this, it is seen as an attempt to mislead clients.

Ethically, they see this as deceptive advertising measures such as advertising locations where service is not provided and advertising treatments that you cannot provide.

This measure is all about transparency and building trust. Addiction treatment already faces enough stigma and, because of prior practices, we have to continue to build up our reputations as honest and trustworthy places to go to for help and assistance.

If you are openly being deceptive about what treatment center you are, or what services you provide, it is doing the entire industry and your whole community a disservice.

Also, while the NAATP frowns upon to bidding on competitors names for targeting ads, it is legal and every field does this. It is considered to be a normative practice across industries.

Paying Travel, Room/Board, or Otherwise Incentivizing Care

It is fairly well known that offering to pay for plane tickets or other transportation is illegal as a way to incentivize patients to attend your treatment center. There were once loopholes where patients would sign promissory notices that said they would reimburse the center for expenses, but audits will quickly find out if you are actually billing for that.

In addition to paying for travel, you also have to be careful about room and board. Room and board would typically only be for inpatient treatment, where the patient is required to stay at the facility and is included in the cost of care.

Offering free room and board, such as sober living, while in a Partial Hospitalization Treatment Programs (PHP) or Intensive Outpatient Programs (IOP) where the client is expected to maintain a separate residence is illegal in some states.

In almost all other states, it’s against insurance provisions. If the insurance company finds out you’re providing room and board for PHP or IOP levels of care and using their reimbursement to do it, they are entitled to claw back all money paid to your program going back several years.

Copying Testimonials or Using Your Own Client’s Testimonials Without Consent

Using alumni testimonials is totally normal and a common practice across healthcare. It becomes an issue when you are copying testimonials from other sites or using testimonials without the proper paperwork.

Copying testimonials from places like Google, Facebook, or Yelp goes against the terms of service for those sites. In addition to this, while alumni have agreed or signed a waiver for consent in the terms of service for those sites, they have not for your treatment center. In these situations, it is only required that you reach out to the person and ask them to sign a consent form for their review to be used on your site.

Now when it comes to using your own client’s testimonial, it requires much more than a verbal “yeah”. You can even have them consensually sit down and write a testimonial or participate in a video testimonial and it will still be illegal unless you have gone through the proper channels. That is because it could be considered a HIPAA violation.

HIPAA, or the Health Insurance Portability and Accountability Act of 1996, was put into place to protect patients’ personal Protected Health Information or PHI. While obtaining testimonials can be great for business, testimonials that use PHI, i.e. names, pictures, or other identifying factors need specific HIPAA-compliant authorizations.

If you do not obtain the proper authorizations, you can be fined, ordered to adopt and implement a corrective action plan, and then be subject to audit. Make sure that you are following proper procedures.

In addition, we’d like to note that while there is nothing illegal about it, we wouldn’t recommend requesting or video recording a testimonial while a patient is in treatment. It can be a good way to showcase your program -- after they successfully complete treatment.

Not Being HIPAA Compliant

HIPAA compliance, as we mentioned above, is a big deal. You want your patients to trust you, and part of that is protecting the privileged information that they give you. No one wants to have the personal details of their medical history exposed, especially if it is linked to their personal information.

Most places would assure you that they go out of their way to protect sensitive information like Personal Health Information (PHI) or Personal Identification Information (PII), but that is not always the case.

Many places don’t think about patient information being relayed through group messaging between staff, emails that are sent to each other, or with insurance groups that include both the PHI and PII. That is a direct violation of HIPAA sep compliance unless you’re running HIPAA compliant application or email with double-end encryption through a Microsoft Exchange Server.

You must ensure that your treatment centers have guidelines that are communicated to the entire staff about HIPAA compliance. It only takes one mistake to have hefty fines levied against you for what you may not have even known was a violation.

Incentivizing Employees for Admissions or Referrals

While we earlier covered that it is illegal to incentivize patients to come to your clinic, it’s also illegal to incentivize employees for referrals. Federal laws were put in place last year by President Trump to safeguard against this.

“Section 8121 of the SUPPORT Act, separately referred to as the Eliminating Kickbacks in Recovery Act of 2018 (Act), contains a provision (to be codified at 18 U.S.C. § 220) that prohibits the payment of remuneration for referrals to certain providers.”

Remuneration is an important distinction here. When people think of incentivizing someone, they think of monetary incentives. As with patient incentives, however, this can be anything of monetary value, either directly or indirectly.

This means in addition to monetary kickbacks, you cannot offer extra time off, dinners at expensive restaurants, or other ‘perks’. This is an important distinction to make so you don’t end up on the wrong side of the law over some movie tickets and dinner.

Offering Discounted Cash Pay Rates

If you take insurance, it’s strongly recommended not to discount your cash pay rates. Not only is this illegal in some states, but you also have to take into consideration what the insurance company requires. You are open to clawbacks if providing services at a lower cash pay rate than you charge insurance.

The only way to do this 100% legally is to have a sliding fee scale based on financial need. You MUST run credit score checks and get bank statements from potential patients, then keep these records on file to justify any financial need discounts.

If this method is too much of a hassle or you don’t have the staffing to run credit scores and to check bank statements, then it would be better to just be transparent about fees upfront and offer to sit down with families to work on their method of payment.

We know that it can be a difficult conversation to have in addition to it being a difficult time for the clients, but it is easier to give someone options for the care they need rather than them deciding they could never afford it.

Stay Informed and Avoid Regulatory Issues

Healthcare is a fast-moving and ever-changing industry. It is important to stay current on the regulations and laws regarding treatment, insurance, and patient data. By avoiding the common mistakes above and following the tips we have presented, you will maintain transparency with clear marketing practices. As the industry embraces and moves more into the digital age, laws will be enacted much faster and staying updated on current topics will help you remain compliant and can potentially save you from costly fines or worse.

NBHAP not only has our Advocacy section, but for marketers out there, we have our Certificate in Addiction Treatment Marketing (C-ATM).