Advocacy Alert: Ethical Marketing — Illinois HB 4949 and New York AB 7689

June 21, 2018

Illinois House Bill No 4949: Consumer Fraud

The Illinois Legislature has passed HB 4949, which amends the state Consumer Fraud and Deceptive Business Practices Acts. The bill is waiting signature from the governor before becoming law.

The proposed law provides that it is unlawful for any person to engage in misleading or false advertising or promotional efforts that misrepresent the need to seek mental health or substance use disorder treatment services outside the state. The proposed law also requires any that any marketing, advertising, promotional, or sales materials directed to Illinois residents concerning mental health disorder or substance use disorder treatment contain certain disclosures including:
(i) prominently displaying the full physical address of the treatment program or facility;

1. prominently displaying the full physical address of the treatment program or facility;
2. indicating whether the treatment program or facility is licensed in the State of Illinois and has locations in the state;
3. including a link to the Internet website for the Department of Human Services' Division of Mental Health and Division of Alcoholism and Substance Abuse;
4. indicating whether the services are covered by insurance and whether the treatment program or facility is an in-network or out-of-network provider; and
5. providing that mental health disorder and substance use disorder treatment may be available at a reduced cost or for free for Illinois residents.

HB 4949 also prohibits patient brokering. Any arrangement whereby a patient is referred to a mental health or substance use disorder treatment program or facility in exchange for a fee, percentage of revenues related to the patient, or any other remuneration that takes into account the volume or value of the referrals to the treatment program or facility would be considered a violation of the prohibition against fee splitting pursuant to the Medical Practice Act of 1987 and a violation of the Health Care Worker Self-Referral Act. This prohibition, however, would not apply to health insurance companies, managed care plans, or hospitals and their affiliates licensed in Illinois.

However, the bill is requiring very stringent controls on marketing within the state of Illinois, to the extent that a national publication that happens to be distributed in the state of Illinois may be required to contain disclosures that would be unnecessary in all other states. While BHAP supports efforts to stop unethical marketing, the unintended consequences can negatively impact treatment providers across the nation. We urge those in Illinois to contact Governor Bruce Rauner and urge him to veto this bill.

For more information on the current laws governing treatment programs and sober living facilities in Illinois, please visit our Frequently Asked Questions for the state.

New York Assembly Bill 7689: Substance Abuse Referrals

New York is currently considering its own bill to prohibit deceptive acts and practices for substance abuse disorder treatment. New York Assembly Bill No. 7689 was recently amended and is under consideration by the state legislature. The state’s Office of Alcoholism and Substance Abuse Services supports the proposed bill.

The proposed bill would prohibit patient brokering and make such acts a criminal misdemeanor. No provider could intentionally solicit, or accept any payment, benefit, or other consideration in any form for a referral of a potential patient for substance use disorder services.

Like Illinois, this prohibition would not apply to lawful payments by health maintenance organizations or health insurers. The prohibition would also not apply to marketers who identify themselves as marketers and merely educate the potential patient about the program without making any efforts to steer or lead the potential patient to select the substance use disorder services provider for whom the marketer works. The prohibition would also not apply to commissions or other lawful renumeration paid to insurance agents.

We urge those in New York to contact Assemblymember Linda Rosenthal to show your support for this bill.

For more information on the current laws governing treatment programs and sober living facilities in New York, please visit our Frequently Asked Questions for the state.

If you are concerned about marketing your addiction treatment program ethically, consider our Certificate in Addiction Treatment Marketing (C-ATM). This six-course online workshop provides best practices and practical tips, and sets a national standard for addiction treatment marketers.