1. I Can Say That?
Aligning Marketing & Legal

2. MATT
JARED

3. Video
Live Streaming
SCENARIO #1

4. Case Study
Trending Topic +
Supportive Parents +
Experienced Doc

5. 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

7. 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

8. 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

9. 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

10. 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?

11. 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.”

12. 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

13. Organizational Transactions and Changes
SCENARIO #2

14. 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

15. 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?

16. 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

17. 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)

18. 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

19. 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

20. 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

21. 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?

22. 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

23. What Did I Learn?

24. 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

25. 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
Jared Johnson, Phoenix Children’s

26. Questions?