On September 27, 2011, I wrote a blog entitled “Free EHR Software — Be Careful, a Real Catch- 22”. In that blog I discussed that the Internet advertising model had migrated to the EHR space and that there are several companies that will provide EHR services “for free”, in return for being allowed to advertise to you — the physician. I discussed the moral dilemma related to using an advertising based model. What we didn’t know at that time was that Congress could be legislating new laws that will make it very hard for a physician to choose those free EHRs without breaking the HIPAA law.
Earlier this month the U.S. Department of Health & Human services released the new HIPAA megarule that imposes new limitations on marketing. The new rule requires providers to obtain patient authorizations “for all treatment and healthcare operations communications where the covered entity receives financial remuneration for making the communications for a third party whose product or service is being marketed.” According to Fierce EHR “the authorization can’t be buried in the provider’s notice of privacy practices, and it must inform the patient that the physician is receiving a financial benefit for sharing the third party’s information with the patient.”
The goal of banner or pop-up ads is to promote the advertiser’s products to physicians with the expectation that they will prescribe, endorse or sell those products to patients. This is important because the targeted buyer is not the doctor; instead it is the patient. We believe this type of marketing is what the new HIPAA rule is addressing. If the physician sees the ad and then promotes the drug, product or service in the ad without patient authorization then there is a violation of HIPAA. Per the rule, the financial benefit can be direct or indirect. Since the ads are assisting in the sponsorship of the free EHR then the physician incurs a financial benefit.
In our last blog on this topic we explained the Catch-22 of free EHRs and this new law just reinforces the no-win dilemma, “heads I win, tails you lose”. If you recommend the product or service you may be breaking the HIPAA law, if you don’t then the advertisers won’t continue sponsorship and your EHR vendor will no longer be able to offer the software for free. The funny thing is that viewing advertising is like the old trick your friends used to play; they would say, “Don’t think of Pink Elephants” and of course that’s all you could think of once the impression was verbalized. Those ads are like Pink Elephants – subliminally impacting physician decisions, it will be hard for doctors to deny they were influenced.
What we said in our last blog still holds true.
In the exam room the doctor’s attention should be focused exclusively on the patient. Frankly, I don’t want to seek medical advice from a physician that is distracted from my care by anything or anyone, especially when I am one-on-one with my doctor in the exam room.
The big question: How do I move advertisements that are blocking the screen? Well…
There is no free lunch. “Free” EHRs are not free; in fact, they are expensive. They require a costly ethical and now a legal compromise, is that risk really worth a couple of hundred bucks a month?
