HIPAA rule may be final, but debate carries on

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The HIPAA omnibus rule may be finalized, but questions on the privacy regs are anything but settled. That's evident in the debate that followed a fairly simple question that FierceEMR editor Marla Hirsch posed in her column last week: Are ads in free EHRs considered marketing?

In her column, "Use of 'free' EHRs may violate new HIPAA rule," Hirsch, an attorney who has specialized in healthcare law for 28 years, laid out some scenarios and presented her opinion.

Readers responded in kind with their own takes on the question.

"It can be argued that the physicians aren't receiving 'financial remuneration' when they receive the [ad], so that marketing the product or service in the ad doesn't require authorization," Hirsch wrote. "But the financial benefit can be direct or indirect, according to the mega rule. So if the ads are enabling physicians' to use EHRs for free, that's a financial benefit."

Some readers compared the EHR ads to online ads, which are served up based on keywords.

"I don't see the [ads] in the EHR being different from targeted ads the physician sees when reviewing their G-Mail account [which are based on keywords in the email and thus might recommend drugs or other products]," one commenter wrote. "If the provider cut/pasted the ad into an email to the patient, and especially if they were asked by the drug company to do so or were paid for doing so, then at that point I think they would have crossed the line."

My take: It's an interesting analogy, although the drug company is not providing the email to the physician for free, as they are with the EHRs.

Readers also debated the effectiveness of EHR ads. If they don't influence prescribing behavior, then there's nothing to worry about--right?

"The ads on this system have little relevance to my specialty, and I can honestly say that they have never influenced a prescription or practice," wrote one commenter who says he uses a free, web-based EHR.

Who best to answer the question of whether these ads influence behavior? The drug companies that spend money on the ads, wrote another reader.

"I am guessing, but if the ads didn't in fact influence provider behavior the drug companies [who have effectively put a drug rep right into the interaction of the provider to the patient] would stop using them … It would be an interesting study to know if docs prescribe more brand name drugs on a free EHR than otherwise but you have to assume that the drug companies know exactly whether or not it works," the reader said.

Another reader posited that the ads do not fall under the scope of HIPAA, but added that it's easy for physicians to be safe rather than sorry--always sound advice, in my opinion.

"Physicians using free [ad-supported] EHRs … will likely want to include a signed authorization and description of the scope of this use in the next revision of their Notice of Privacy Practice for full disclosure to their patients," he wrote. "However, without some separate remuneration for the drug company for the physician's communication of treatment alternatives to the patient, there would be no violation of HIPAA, even if costly EHRs would wish it. Physicians may also change to the paid version of the same software, but more likely because the ads are a headache, rather than being a HIPAA violation."

What do you think? And what else confounds you about HIPAA? Check out the comments and add to the discussion here.

Meanwhile, learn more by checking out this list of important HIPAA provisions that directly affect electronic health records and related health information technology.

And read our special report, four new HIPAA provisions providers must know, which includes interviews with experts who drill down on changes to the rules about business associates and breaches, patient access to e-copies of records, enhanced patient rights to request restrictions on disclosure of PHI and changes to the breach notification rule.

Finally, don't miss this post on uncertainties surrounding the new HIPAA breach notification rule by healthcare attorney and FierceHealthIT Editorial Advisory Board member David Harlow. - Gienna (@Gienna and on Google+)