Legal Marketing

Law firms hire company to send ads to ER patients' cellphones; is it a HIPAA violation?

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Some personal injury law firms plan to use a technology called “geofencing” to send ads to cellphones of patients in emergency rooms, pain clinics and chiropractor offices.

The Philadelphia-area firms hired a company called Tell All Digital to target patients using geofencing, NPR reports. The technology identifies people using cellphones within a certain location and then targets them with ads. Law firms in California and Tennessee are also testing the technology.

University of Minnesota law professor Bill McGeveran told NPR that the marketing technique may feel intrusive, but it’s not a violation of the Health Insurance Portability and Accountability Act, a medical privacy law known as HIPAA.

The law applies to hospitals, clinics, doctors and insurance companies, but not to lawyers and marketers, he said. “There’s lots of digital marketing and record-keeping that’s outside of HIPAA,” he said.

Massachusetts Attorney General Maura Healey expressed misgivings about law firms using such marketing to exploit private medical information. She reached an agreement with a different digital marketing company last year that prevented it from using geofencing to target Massachusetts women entering Planned Parenthood clinics.

The company had been hired by a Christian counseling organization that offered “choices” and “pregnancy help” to people entering the reproductive health clinics. Healey contended the ads would violate the state’s consumer protection law by intruding on private health and medical status.

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