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How mental health and SUD privacy laws can affect email marketing

How mental health and SUD privacy laws can affect email marketing

When dealing with patients who have a history of substance abuse disorder (SUD) or mental illness, there need to be restrictions in the way specific matters like marketing are handled. This is where privacy laws come in. They provide a guideline for healthcare providers to handle patient data and patient care in a sensitive yet efficient manner. 


The balance between sensitivity and effective marketing in healthcare 

SUD and mental health patients are often subject to many stigmas surrounding their illness. At times, this can cause a degree of internalization that hinders a patient's receptiveness to treatment and any marketing efforts from healthcare providers. Chapter 2 of Ending Discrimination Against People with Mental and Substance Use Disorders: The Evidence for Stigma Change offers the following:

 “As people with mental and substance use disorders become aware of public stigma and of related discriminatory practices, they internalize the perceived stigma and apply it to themselves. The effects of self-stigma include lowered self-esteem, decreased self-efficacy, and psychologically harmful feelings of embarrassment and shame. Low self-esteem and low self-efficacy can lead to what Corrigan refers to as the “why try” effect.

These stigmas can manifest in various ways. Patients may be hesitant to disclose personal struggles or feel a lack of trust in healthcare professionals due to past experiences of judgment or discrimination. As a result, healthcare providers may face barriers in establishing open and honest communication with these patients.

By using empathetic and non-judgmental language in email marketing, healthcare professionals can help reduce stigma and encourage patients to seek help. Sensitivity also involves acknowledging the unique experiences and perspectives of each patient, recognizing their strengths and abilities, and fostering a sense of empowerment and self-worth.

Any content sent should also first be subject to clear patient consent and oversight to assess its relevance. Additionally, email content must be crafted to avoid triggering language or imagery, considering recipients' diverse experiences and vulnerabilities.

See also: HIPAA and substance abuse patients PHI


An introduction to the laws 



This applies to covered entities, like healthcare providers, health plans, healthcare clearinghouses, and their business associates. 

What does it cover? HIPAA protects the transferred, received, handled, or shared. This includes specific provisions for mental health and SUD patients, with provisions that contain the need for confidentiality and consent before sharing patient information. 

Specific provisions

  • The Privacy Rule requires healthcare providers to protect the privacy of health information, including any mental health and SUD-related information. It limits the use and disclosure of this information without patient authorization.
  • The Security Rule outlines the standards for protecting electronic Protected Health Information (ePHI), including that related to mental health and SUD, against unauthorized access.

How is it relevant to email marketing? It requires explicit authorization from the patient before using their health information for marketing purposes, including a health-related product or service.


42 CFR Part 2

This applies to programs federally funded that provide SUD treatment.

What does it cover? The use and disclosure of SUD patient records are offered further protections to protect patient privacy. 

Specific provisions 

  • The General Provisions section provides for the confidentiality of SUD patient records, limiting disclosures and uses of patient identifying information to very specific conditions without patient consent.
  • Consent and Restrictions detail the requirements for patient consent to be valid for the disclosure of SUD treatment records, which is particularly relevant for email marketing.

How is it relevant to email marketing? There is no specific section directly addressing email marketing; however, the stringent consent requirements under §2.31 make it clear that any use of SUD-related information for marketing would require explicit, detailed consent from the patient.


Family Educational Rights and Privacy Act (FERPA)

Applies to educational institutions.

What does it cover? FERPA protects student education records, which can include health information held by schools with their health clinics.

Special provisions

The Rights and Privacy provisions apply to educational institutions and afford parents and students over 18 years old ("eligible students") rights to access and control educational records, which can include health information if the school provides healthcare services.

How is it relevant to email marketing? FERPA does not directly address email marketing. Still, its broad mandate requiring parental or eligible student consent before the release of educational records (including health information held by school-based clinics) to third parties implies that any email marketing to students involving their health information would require explicit consent.


The ethics behind marketing 

According to the Ethical Principles of Psychologists and Code of Conduct, “Psychologists establish relationships of trust with those with whom they work. They are aware of their professional and scientific responsibilities to society and to the specific communities in which they work.”

Additionally the code of conduct states: “Psychologists are aware that special safeguards may be necessary to protect the rights and welfare of persons or communities whose vulnerabilities impair autonomous decision making. Psychologists are aware of and respect cultural, individual, and role differences, including those based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status, and consider these factors when working with members of such groups.

Professionals are tasked with ensuring their communications are always empathetic and supportive. This means carefully crafting messages that are positive, encouraging, and free from any language or content that might inadvertently cause distress or trigger negative responses.

An ethical imperative also lies in the promotion of accurate, honest information. Email marketing avoids overpromising or offering guarantees about treatment outcomes, which can set unrealistic expectations and potentially lead to disappointment or a loss of trust in therapeutic processes. Providers should strive to educate and inform rather than simply push services.

There's also an ethical duty to portray mental health and SUD issues with the dignity they deserve. This approach not only respects the individuality and worth of each patient but also contributes to a broader societal shift towards more compassionate, understanding attitudes towards mental health and substance use challenges.


The matter of consent

HIPAA requires patient consent whenever PHI is used for purposes outside treatment, payment, and healthcare operations. This includes the times when PHI might be used in marketing, research, or shared with third parties not directly involved in the patient's care. 

Here’s how to ethically obtain consent: 

  1. Use of clear, simple language in consent forms: Develop consent forms and any explanatory materials using simple, non-technical language that is easily understandable by all patients. 
  2. Develop a HIPAA compliant consent form: Create a consent form that clearly outlines the intent behind using email and text messaging for communication. By leveraging Paubox Forms, healthcare providers can efficiently create, distribute, and collect informed consent forms.
  3. Provide a Notice of Privacy Practices (NPP): Before seeking consent, patients should be given an NPP that thoroughly explains how their PHI will be utilized and disclosed. 
  4. Accessibility options for diverse patient needs: Make sure consent forms and educational materials are accessible to patients with disabilities.
  5. Consent confirmation follow-up: After obtaining consent, conduct a follow-up via a phone call or secure message to confirm the patient's understanding and consent. 

See also: How to get consent for texting and emailing patients


How to make the most of personalization

Personalized emails have been shown to have generated 58% of all revenue when compared to non-personalized emails. For Substance Use Disorder (SUD) and mental health patients, personalization can be particularly beneficial, ensuring that the content they receive is relevant and sensitive to their unique health journey. Personalized content can foster a sense of understanding and connection by focusing on the individual's specific circumstances and treatment progress. 

The steps to personalization: 

  1. Segment your audience: Categorize your email list based on specific criteria like treatment stage, interests, or behavior patterns to tailor your messaging more effectively.
  2. Use patient names: Start emails with the patient's name to immediately create a personal connection and grab their attention.
  3. Customize content based on treatment journey: Tailor the content to reflect where the patient currently is in their treatment process, offering relevant advice, encouragement, and resources.
  4. Include relevant resources: Provide links to articles, support groups, or tools that align with the individual’s specific needs and interests, further personalizing the support offered.
  5. Personalize email timing: Schedule emails based on when patients are most likely to engage, which could vary depending on their routines, treatment sessions, or other personal commitments.
  6. Confidentiality and consent: make sure all personalization efforts are compliant with privacy laws, always securing consent before using personal information for marketing and being transparent about how data is used.

See also: How to balance personalization and privacy for HIPAA compliance 


Triggers to avoid when communicating with mental health and SUD patients  

  1. Using stigmatizing language or labels such as "addict," "abuser," or "alcoholic," as this can perpetuate stigma and negatively impact how individuals with SUDs are perceived.
  2. Making assumptions or judgments about the individual based on their condition, which can lead to feelings of shame, fear, and detachment.
  3. Failing to treat the individual with respect and dignity, which can further contribute to feelings of stigma and isolation.
  4. Ignoring the person's individuality and defining them solely by their condition, which can diminish their sense of self-worth and agency.
  5. Overlooking the impact of past trauma, lack of family support, economic challenges, or experiences of discrimination, are risk factors for developing SUDs and mental health disorders.
  6. Neglecting to create a safe and supportive environment for communication, can hinder trust-building and openness in discussions about mental health and SUDs.
  7. Failing to address the co-occurring nature of mental health disorders and substance use, as these conditions often intersect and influence each other.
  8. Disregarding the need for personalized treatment that considers the individual's unique combination of disorders, symptoms, age, and substance misuse.
  9. Not being aware of the impact of stress, negative emotions, over-confidence in recovery, physical or mental illness, and social isolation as triggers that can affect individuals with SUDs and mental health conditions.
  10. Neglecting to provide a supportive network, encourage social engagement, and offer distraction techniques to help individuals cope with triggers and prevent relapse.


What is the role of Paubox Marketing?

Paubox makes sure that all communications meet the strict privacy and security standards required when handling sensitive health information. This allows healthcare providers to send personalized, encrypted emails directly to their patients' inboxes, without the need for them to navigate through portals or enter passwords. 

Paubox Marketing can segment email lists based on specific patient information, such as treatment progress, interests, or needs. This enables providers to tailor their messages precisely, ensuring that each patient receives relevant and supportive content. This personalized approach respects and acknowledges each individual's unique journey, making them feel seen and understood.



How do these privacy laws apply to marketing emails sent by third-party marketers on behalf of healthcare providers?

Privacy laws require third-party marketers to adhere to the same standards as healthcare providers.


What steps should healthcare providers take if they accidentally violate privacy laws in their email marketing efforts?

Suppose healthcare providers accidentally violate privacy laws in their email marketing efforts. In that case, they should immediately cease the campaign, notify affected patients, conduct a thorough investigation, and implement measures to prevent future breaches. 


Can healthcare providers include testimonials from other patients in their email marketing?

Healthcare providers can include testimonials from other patients in their email marketing only if they have obtained explicit, informed consent.

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