Fundraising Under HIPAA —The Privacy Rule—
AHP's Special Analysis

From Stuart R. Smith, FAHP - Chair
William C. McGinly, Ph.D., CAE - President, Chief Executive Officer
Reviewed and Presented by AHP Legal Counsel - Peter Parvis, Esq., Venable,
Washington, D.C.

UPDATED - February 2003

For your convenience, this document is also available in Adobe Acrobat format.

The Association for Healthcare Philanthropy posed five important questions concerning the Privacy Rule and requested that AHP's legal counsel (Peter Parvis, Esq. at the firm of Venable, Washington, D.C.) provide advice to assist us in complying with the privacy regulations as they pertain to our philanthropic efforts and responsibilities. We suggest you use the analysis and conclusions sections which follow with your donors, trustees, CEOs, administrators, and the public as we move into the implementation phase of these regulations.

The Questions Presented and Conclusions (the “short answer”) section is intended to address the most common issues raised concerning the privacy regulations regarding fundraising. The more detailed Discussion (the “long answer”) section is intended to give you an in depth understanding of the issues and implementation of the regulations.

• Background and Requirements for Fundraising

• Question 1 - Authorization, Notice of Privacy Practices
  • Is the health care provider required to obtain authorization of former and current patients prior to sending them fundraising materials?
    Short Answer | Long Answer

• Question 2 - Opt-out Language
  • What are examples of clauses that would fulfill the opt-out requirement in the regulations for fundraising communications? If an individual upon receiving a fundraising solicitation decides to opt-out from receiving additional information pertaining to fundraising, could the fundraising entity continue to send that individual information about events if those events will have active or passive fundraising?
    Short Answer | Long Answer

• Question 3 - Filtering Data
  • Can a health care provider filter patient information when determining to which prior patients they will send fundraising communications? for example, can the fundraiser request a list from the health care provider that excludes psychiatric or pediatric patients? What would constitute permitted filters?
    Short Answer | Long Answer

• Question 4 - Institutionally Related Foundation, Business Associates
  • Do the regulations require that a covered entity have a formal "business associate" type contract with an institutionally related foundation?
    Short Answer | Long Answer

• Question 5 - Newsletters, Patient Education
  • What effect will the regulations have on marketing efforts such as the distribution of newsletters, seminars, patient education, and health fairs?
    Short Answer | Long Answer

• Definitions - Notice of Privacy Practice and Opt Out
• Definitions - Important Terms
• Sample Business Associate Contract Provisions
  

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