I Can Say That? Aligning Marketing & Legal

MATT JARED

Video Live Streaming SCENARIO #1

Case Study Trending Topic + Supportive Parents + Experienced Doc

Case Study Phoenix Children’s Hospital was the 1st children’s hospital to live stream a surgery August 2016 13-year-old boy Pectus excavatum: Congenital defect in which the chest wall and rib cage appear caved in US Olympic swimmer Cody Miller has pectus Parents already signed HIPAA form

Live Video: Marketing’s Case Creates an instant, interactive community Former patients, potential patients, family members, clinicians and caregivers ask and answer one another’s questions in real time Differentiate your brand and your content Build trust

Live Video: Legal Considerations Get legal, compliance and risk management involved early Better to ask questions than have idea stopped at last minute Should be collaborative process Should not be trying to get in the way of innovative models, approaches or abilities to reach out

Live Video: Legal Considerations HIPAA governs privacy and security of “protected health information” Applies to essentially all patient-related information that could be presented during a live video Impacts what can be shown, how, when, where and other aspects of production

General & Professional Liability Could “evidence” of malpractice be created? What happens if services take a bad turn? What is the contingency – ready to stop video feed? Contact professional liability insurer State Apology Laws Will video impact and is apology allowed? If apologize, is that admissible or is it kept out of court?

Results: Everyone is Happy! 12 new patients in 1st 90 days 321 live views, >1,000 replay views “[The parents] felt a little lost themselves when they were doing their research and they thought, ‘If we can help educate other families that are in the same situation we are, as well as help train physicians that are learning the procedure, we are in favor of it.’ They wanted to pay it forward.”

Live Video: Takeaways Know what HIPAA does allow. HIPAA does not prevent live video, but still need to protect privacy and security even with patient authorization Create team from all areas of organization to benefit from and incorporate all perspectives Do not delay consulting legal and compliance as laws will influence approach

Organizational Transactions and Changes SCENARIO #2

Times are a Changin’ Organizations do not remain static Different types of transactions bring different challenges Consideration of two types of transactions: Changing an exclusive insurance partner Merging with or acquiring another entity

New Exclusive Insurance Partner Providers can have exclusive relationships with Medicare Advantage plans or enter into new relationships Can providers advertise the new relationships? Can providers promote or encourage use of a new insurance partner? What should providers be expected to know?

Medicare Marketing Guidelines Guidance published and updated annually by the Centers for Medicare and Medicaid Services (“CMS”) Primarily directed to Medicare Advantage plans, but also include provisions covering and guiding providers Basic message: provider is not a proxy for the insurance and must respect unique relationship with patients

Medicare Marketing Guidelines – Thumbs Down Guidelines clearly do not allow or want providers to do the following: Sales presentations Distribution or acceptance of enrollment forms Marketing activities in spaces where healthcare services are performed (distinguished from common areas in a provider’s office)

Medicare Marketing Guidelines - Thumbs Up Guidelines do allow the following types of activities: Identifying all insurers that the provider accepts Providing information about and assistance to apply for low income subsidy Provide information about all plans that provider accepts Big caveat: provider does not need to affirmatively make materials available, only if insurer asks Refer patients to other sources of information, which can be the insurer Share and print information produced by CMS

Insurance Changes Takeaways Providers are not and should not expected to be sources of information about pros and cons of different insurance plans Regulations seek to protect special relationship between providers and patients Do not assume that an area of operations is not covered by some regulation

Mergers or Affiliations More organizations of all types exploring mergers, acquisitions, affiliations or other arrangements Communications impact mixture of regulation and terms of any agreement pursuing

Mergers or Affiliations – Regulatory Considerations Notifying Regulators Changes to ownership or control never escape notice Need inform Medicare, Medicaid, state Attorney General and state licensing bodies Timing important When notify, usually becomes a public record Could early timing throw off transaction?

Mergers or Affiliations - Contractual Requirements Public Statements and Announcements Look for provision impacting what can be done in primary transaction agreement Could require mutual agreement on contents, enable only one party to issue statement, or prohibit altogether Community messaging could impact reception of proposed or completed transaction

What Did I Learn?

Practical Reminders Legal will help, not hinder marketing efforts in most instances Every idea has a legal impact and laws will influence how marketing initiatives can be pursued Path taken may not be the one that is expected, so be flexible Do not delay bringing all impacted areas into discussions as delaying can severely impact what is done HIPAA, despite its reputation, will not completely prohibit most ideas At same time, do not overlook other laws

I Can Say That?: Aligning Marketing and Legal Legal will help, not hinder marketing efforts in most instances Every idea has a legal impact and laws will influence how marketing initiatives can be pursued resulting in a different path than expected Do not delay bringing all impacted areas into discussions as delaying can severely impact what is done HIPAA, despite its reputation, will not completely prohibit most ideas, but do not overlook other laws Matthew Fisher, Esq., Mirick O’Connell, mfisher@mirickoconnell.com, @matt_r_fisher Jared Johnson, Phoenix Children’s Hospital, jared@ulteradigital.com, @jaredpiano

Questions?