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.

Practice Fusion Ad

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?