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Legal, ethical rules apply when marketing client case studies

July 15, 2015
by Julie Miller, Editor in Chief
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Effective marketing can sway a potential client to make the courageous decision to enter treatment. However, industry leaders caution that cavalier and unethical practices must be avoided because they are detrimental to the reputation of the industry as a whole.

Particularly for substance-use treatment, case studies are one of the proven tools that help encourage potential patients to seek services. But case studies require careful consideration to ensure patient privacy and to safeguard long-term recovery.

“You want to apply the principles of common sense, fair play and the golden rule,” says Bob Ferguson, director of Jaywalker Lodge, and a member of the National Association of Addiction Treatment Providers (NAATP) ethics committee.

Ethical guidelines

NAATP revised its code of ethics a year-and-a-half ago, and one of the issues brought into focus was the practice of misleading or deceptive marketing tactics, including those that could reveal a client’s identity.

“NAATP’s new code of ethics specifically calls out that treatment providers will not exploit clients’ right to privacy for the purposes of marketing or promoting their programs,” Ferguson says. “The language we came up with had to do with all the ways in which clients’ identity can be exposed.”

Jaywalker does not use testimonials or photos of current clients, he says. And for former clients, Jaywalker obtains written permission to use testimonials only from those who have at least reached the six-month milestone. He advises that treatment centers should avoid approaching younger clients who are not in a position to give informed consent to use their stories as case studies. Stick with adult clients and be clear about your intentions.

“Make everybody who’s involved aware of it and be sure they’re okay with it,” Ferguson says.

He also says that while ethics policies are necessary, by themselves, they are insufficient because not every situation can be adequately governed by written guidelines.

“We can try to parse out in writing all kinds of ethical guidelines and standards until our fingers are worn to the bone, but at the end of the day, it comes down to three questions: Does this meet the standards of common sense? Am I playing fair? Would the golden rule apply?” Ferguson says.

Legal considerations

Treatment centers must be aware that while HIPAA rules do not specifically address patient case study materials, such marketing tools still pose a violation risk, says Nick Merkin, CEO of Complianget, a compliance consulting firm.

“The problem is that the HIPAA regulations are a catch-all,” says Merkin.

In its language, HIPAA contains a list of 18 defined identifiers that providers must protect, but it also says providers cannot disclose any other unique identifying number, characteristic or code.

“There is no real black and white in that particular requirement, in the sense that you could de-identify everything that is specifically named in the regulation, but there could still be something unique in your advertising or some characteristic that’s going to make the subject of the advertising identifiable,” Merkin says.

The difficulty in analyzing case study material for HIPAA compliance is that there is no one-size-fits-all answer. For example, a provider in a small town where residents know each other might have more worries about maintaining the anonymity of case study subjects than a provider in a metropolitan area that has thousands of clients and a far-reaching advertising base.

Clients make the call

When in doubt, let the client take the lead, experts say.

“Sensitive information ought to raise your antennae more,” says John Greiner, attorney with the firm Graydon Head & Ritchey LLP, in Cincinnati, Ohio. “It makes sense to consult with the patient to make sure they’re consenting. That may mean potentially giving them control over the content.”

Greiner says he knows of a legal case in Illinois that was recently filed, in which a police officer’s story was used in an advertisement for addiction treatment, and although the officer was not named, the details of the case were so unique and specific, the patient felt he would be identifiable by other officers who would see the ad.

“You should not assume you can make anything completely anonymous,” Greiner says. “The person is probably going to know who it is, especially if you’re talking about a fairly unusual set of circumstances.”

He adds that some media outlets might include indemnification clauses in their advertising contracts that would make the provider of the ad content responsible for any damages resulting from law suits. Providers should read their contracts closely, he says.

Ferguson warns that providers must also be cautious about their own personal perspectives when constructing marketing campaigns to highlight their organization’s positive results.

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