Orlando World Center Marriott

Orlando, Florida

September 10-13, 2012

The Blue National Summit is a program of the Blue Cross and Blue Shield Association, an Association of independent Blue Cross and Blue Shield Plans. Copyright © 2012.

Coupons, Discounts and

Privacy

Thomas D. Bixby

Thomas D. Bixby Law Office LLC

TBixby@tbixbylaw.com

Mary Kay Dudley

Blue Cross Blue Shield

Association

marykay.dudley@bcbsa.com

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Coupons are hot!

• Groupon and other sites

• Clipping coupons online

Privacy and HITECH Act restrictions . . .

Coupons, Discounts, & Privacy

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“Marketing” restrictions

“Hybrid entity” status

Privacy Rule & HITECH Act

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May not use/disclose PHI for “marketing”

• Written authorization

Marketing is:

• Making a communication

• About a product or service that

• Encourages recipient to use or purchase the product or service

“Marketing” Restrictions

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“Marketing” Restrictions

Broad definition includes:

• Traditional marketing about products & services

• Every-day activities, e.g., provider directories

• Coupons

Exceptions apply

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“Marketing” Restrictions

Exceptions for

• Health-related products/services offered by Blue Plan

• Provider directories and

• Value Added Items & Services

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“Marketing” Restrictions

Value Added Item or Service

• Health-related products/services

• Available only to Blue Plan member

• Add value to (but not part of) benefit plan

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“Marketing” Restrictions

Add value to benefit plan

Available only to Blue Plan member

• Not available to the general public

• E.g., same discount offered in Sunday paper

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“Marketing” Restrictions

Health related

• Glasses/contacts

• Eye exams

• Health club membership

• But not ticket to movie theater

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55¢ off LEAN CUISINE® varieties when you buy THREE LEAN CUISINE® varieties

SAVE 50¢ Fiber One® when you buy ONE BOX any flavor Fiber One® Chewy Bar

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SAVE $1.00 Nature Made® off any Nature Made® product

SAVE $3.00 AmLactin® Lotion on ONE Bottle of AmLactin® Lotion

For people with extra-dry skin . . .

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50¢ off Equal® Sucralose when you buy any ONE Equal® Sucralose

$1.75 off Centrum® Silver® Multivitamin when you buy any ONE Centrum® Silver® Multivitamin

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15% OFF Get 15% OFF Your Order at Famous Footwear.

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“Marketing” Restrictions

Determining what “health related” means

Communication must be “health care operation”

• Population-based activity

• Improve health or reduce costs

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“Marketing” Restrictions

Proposed “health related” test:

• If the member uses/purchases product or service,

• Is the purpose of the member’s use/purchase reasonably likely to be

• Improving member’s health or reducing costs?

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“Marketing” Restrictions

Apply “health related” test to:

• Eye glasses/contacts

• Eye exam

• Health/fitness club

• Movie theater tickets

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55¢ off LEAN CUISINE® varieties when you buy THREE LEAN CUISINE® varieties

SAVE 50¢ Fiber One® when you buy ONE BOX any flavor Fiber One® Chewy Bar

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SAVE $1.00 Nature Made® off any Nature Made® product

SAVE $3.00 AmLactin® Lotion on ONE Bottle of AmLactin® Lotion

For people with extra-dry skin . . .

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50¢ off Equal® Sucralose when you buy any ONE Equal® Sucralose

$1.75 off Centrum® Silver® Multivitamin when you buy any ONE Centrum® Silver® Multivitamin

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15% OFF Get 15% OFF Your Order at Famous Footwear.

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HITECH Act Restriction

No payment

• May not receive payment for communication

• Directly or indirectly

Vendor’s receipt of payment

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“Marketing” Restrictions

Coupon checklist

• “Health related”? (Reasonably likely to use coupon to improve health or reduce costs?)

• Available only to Blue Plan members?

• Payment for communications (direct or indirect)?

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“Hybrid Entity” Status

Entity that performs multiple functions

• Functions that make entity a health plan

• Non-health plan functions

Examples: Health insurer that:

• Also sells life insurance

• Collects Health Risk Assessments for employer

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“Hybrid Entity” Status

Identify “components”

• Health care components (“covered functions”)

• Non-health care components

Establish firewalls

• One-way flow of protected health information

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“Hybrid Entity” Status

Health care component’s PHI:

• No “disclosure” to non-HC component

• No access by non-HC component

• Security Rule safeguards—treat non-HC component as 3rd party

• Employees “wearing two hats”

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Orlando World Center Marriott

Orlando, Florida

September 10-13, 2012

The Blue National Summit is a program of the Blue Cross and Blue Shield Association, an Association of independent Blue Cross and Blue Shield Plans. Copyright © 2012.

Questions

Thomas D. Bixby

Thomas D. Bixby Law Office LLC

TBixby@tbixbylaw.com

Mary Kay Dudley

Blue Cross Blue Shield

Association

marykay.dudley@bcbsa.com