Maintaining compliance with HIPAA, TCPA, the FTC, and the host of other regulatory boards is complicated. An inadvertent error can result in massive fines, but there is much to be gained from a smart online strategy if you avoid the minefield of potential violations. For the next five weeks, we’re breaking down five marketing landmines that risk HIPAA and regulatory compliance. Each article will cover one of the five landmines, and each article will conclude with an opportunity for readers to download a white paper that explains all five landmines in greater detail. Our goal is to help you ask the right questions about your practice; and ask your vendors the right questions. If they get HIPAA wrong, you will be the person who burns.

Let’s get started.

Utilizing a platform for texting to capture reviews may seem like an efficient way of communicating with patients, but consider its purposes and it consequences. SMS texting implemented by automated systems is regulated by the Telephone Consumer Protection Act of 1991 (TCPA). TCPA is enforced by the FCC. The FCC updated its TCPA regulations in July of 2015 and the statutory damages for violations is $500 per text or actual damages, whichever is greater. Those who breach data in this manner may pay up to $1,500 per text for willful or knowing violations. Because the penalty amount can grow quickly, class action lawsuits in this domain are enticing to attorneys, even when a business has done everything right. There is no cap on aggregate statutory damages. Multi-million dollar settlements are not uncommon. How does a business prevent such mischief? If the text message is deemed advertising or marketing, the business must obtain express prior written consent from each consumer who will receive a text. Advertising and marketing are defined broadly. Does a text message soliciting a patient review for posting on a third-party site constitute advertising? Probably. In any event, you do NOT want to be a test case. There is an extensive list of items that must be included in a consumer’s written authorization upfront to be TCPA compliant. And the burden is on the business to obtain this consent.

Consider these real life examples…

In Kolinek v. Walgreen, Walgreens settled a class action suit for $11 million. What horrible thing did Walgreens do? Upon request, a consumer provided his mobile number to Walgreens when he picked up a prescription. The pharmacist allegedly stated the number would only be used to verify his identity for future refills. Walgreens then sent text messages reminding the consumer to pick up his refills. In this case, the mobile number was not actually used to “verify his identity.” Rather, it was simply a helpful reminder about refills. The consumer filed a TCPA class action lawsuit resulting in a multi-million dollar settlement. Each consumer received about $20. And the lawyers? They received millions.

An automobile shipment broker touted online they had “more highly ranked ratings and reviews than any other company in the automotive transportation business.” As part of its advertising, it encouraged consumers to Google them. “You don’t have to believe us, our consumers say it all.” Turns out, they discounted their services for consumers who wrote favorable reviews. Those who refused to write favorable reviews paid inflated prices for shipment services. The FTC took action. Lucky for them, the FTC did not impose a stiff monetary fine, but the company is required to notify the FTC about any changes in corporate structure or affiliation with new businesses that could affect their compliance for the next 20 years. Even worse, their Google page one search has the FTC order listed prominently. So much for influencing online reviews!

Now, how does the Federal Trade Commission (FTC) figure into regulatory compliance with your marketing efforts?

As we have already established, don’t pay for reviews. Don’t give discounts for reviews. Don’t provide free services for reviews. If you do, the FTC requires disclosure in the review. This is how a “compliant” (but de-valued) review would read: “Dr. Jones saved my life. I am forever grateful. PS: Dr. Jones gave me a $25 Amazon gift card for the review.”

The FTC has a lot to say about online reviews so when in doubt, refer to their FAQs…

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The internet and social media are platforms doctors should embrace, not avoid. Certainly there is risk, and doctors need to manage it carefully. But there is also great reward – for doctors and patients alike. These platforms help doctors build a more complete professional picture of their ability to deliver quality care through diverse, verified reviews. By listening to patient feedback, doctors can dramatically impact patient perception, leading to improved new patient volume and revenue. This obviously benefits the doctor’s business, and, in parallel, patients should experience elevated care. Government regulations impact your marketing. It can be done safely, but not without you and your staff receiving proper background and training and expert guidance from trusted vendors. Be certain to select third party vendors who understand the detailed regulatory issues faced by marketing in healthcare. Look at your marketing practices and processes in the context of asking the right questions about regulatory compliance. If this seems daunting, coordinate with experts to help.

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