Transcript Marketing Pitfalls

Marketing Pitfalls
NCAL Webinar
November 6, 2008
www.lanepowell.com
© 2008 Lane Powell PC
Presenters
● Barbara J. Duffy
 [email protected]
● Robin Dale
 [email protected]
● Warren Babb
 [email protected]
● Erik Price
 [email protected]
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Marketing Pitfalls
● General Trends
● Fair Housing
● Risk Management
● Health Insurance Portability and
Accountability Act (“HIPAA”)
● Anti-Kickback
● Questions
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General Trends In Assisted Living
● Fair Housing Claims More Pervasive
● Consumer Advertising Related Claims
● Personal Injury Claims Now Seem to
Include Claims Related to Advertising
● HIPAA and Assisted Living
● Sensitive Fraud Environment
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Fair Housing
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Fair Housing
● The Fair Housing Act makes it unlawful to
discriminate in the sale, rental, and financing
of housing because of race, color, religion, sex,
handicap, familial status, or national origin.
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Fair Housing
● The Act makes it unlawful
to make, print, or publish,
or cause to be made,
printed or published, any
notice, statement, or
advertisement, with
respect to the sale or
rental of a dwelling, that
“indicates” any
preference, limitation, or
discrimination violating
the provisions of the Act.
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Fair Housing
● Any material or marketing
used to promote a
community is covered by
the Act.
● These include, print
material, television, radio
and other electronic media,
brochures, pamphlets,
annual reports, billboards,
pictures of the facility
posted in a sales office,
specialty marketing devices,
and even business cards.
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Fair Housing
● Because the Act bans
any housing-related
communication that
“indicates”
discrimination, courts
have adopted essentially
a strict liability standard
with respect to
discriminatory
advertising.
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Problematic Language
● Use of certain terms or
phrases that convey a
discriminatory preference
may be considered
unlawful under the Act.
● However, it is acceptable
for communities to
describe themselves and
their activities rather than
the prospective or hoped
for resident.
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Problematic Language
● Advertisements should
not contain explicit
exclusions, limitations,
or other indications that
protected classes are not
welcome or are exposed
to different criteria than
other potential residents.
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Problematic Language
● HUD guidance prohibits the use of language
that could directly or indirectly be interpreted
as conveying a discriminatory intent.
Examples include:
 Adjectives describing the community or preferred
resident in racial, ethnic, or sex-based terms;
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Problematic Language
● Examples include:
 Words indicating preferred race, color, religion,
national origin, sex, disability, or familial status;
and
 Explicit exclusions indicating discrimination based
on disability (e.g., “no wheelchairs”).
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Problematic Language
● Communities must also
be careful not to convey
perceived religious
discrimination.
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Human Models
● HUD advertising
guidelines cite the
“selective use of human
models” as a potential
violation.
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Human Models
● The use of human
models in
advertisements raises
the issue of whether the
community is
communicating a
preference for one
group of persons or
another.
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Other Advertising and Marketing
Techniques
● HUD guidelines
specifically address the
possibility that the
selective use of
advertising can lead to
discriminatory results in
violation of the Act.
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Risk Management
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Advent of Tort Reform has led
plaintiffs attorneys to seek
alternative legal theories.
● Breach of Contract
● Consumer Claims
● Misrepresentation
● Fraud
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Five Basic Rules
● Sensitize Marketing Dept. to Risk Mgmt
Issues
● Avoid “meet/exceeds” language
● Separate Ad material for Independent and AL
● Realistic “Daily Life” Orientation DVDs/videos
● Written Notice of Changes/Reductions to
Services
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Marketing v. Risk Management – the
Classic Struggle
● Sales teams trained to present most
favorable impressions
● Brochures, Print Ads and Internet
Ads/websites
● Mission Statements (Posted on
Internet)
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Marketing v. Risk Management – the
Classic Struggle
● Avoid Overstatement/Exaggeration
● Describe Services Not
Aspirations/Goals
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Avoid “Meets/Exceeds” Phraseology
● Common usage of Meet/Exceeds Gov.
Standards/Regulations
● Buzz words – Quality, Professional,
Superior
● Open-ended “promises,” Ambiguous
terms
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Separate Promotional Material for
Independent Housing and
Assisting Living
● Different Regulations and Standards for Two
Types of Housing
● Public/Courts Blur Lines between types –
assume all are ALF
● If all in one Ad/Brochure Conspicuously and
Expressly state both are provided and ALF
services not offer to Independent Residents
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“Daily Life” Orientation DVDs/Videos
●
●
●
●
Reality Based, Showing True Services
Short – Three – Five Minutes
Take Care What the Voice Over Says
Serves as Audio/Visual Record of
Representations made to residents and
families
● Resident/Family Sign Form Acknowledging
Watching Video
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Written Representations/”Promises”
must be “taken back” in writing
● Changes to Amenities, Services,
Policies
● Written Advance Notice of Changes
● Sent to Residents by Mail
● Conspicuously Posted in Common
Areas
● Announcements Made at Facility
Meetings/Events
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Health Insurance Portability and
Accountability Act
(“HIPAA”)
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HIPAA
● Does HIPPA apply?
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HIPAA
● Always obtain resident
permission
● HIPAA requires
revocability
● State Privacy laws may
apply
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Federal Medical Referral
Laws and Regulations
● Marketing Risks From:
 Anti-Kickback Laws
 Stark “Physician
Self-Referral” Laws
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Anti-Kickback and Stark Laws
Marketing Risk Areas
● Two Areas of Risk
 Marketing to
providers, suppliers,
vendors
 Marketing to
residents
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What Are Theses Laws?
● Anti-Kickback
● “Stark” Physician SelfReferral
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Anti-Kickback
● Real Life ‘Kickbacks’
 Cash back credit
cards
 Frequent flyer miles
 Gas discounts for
groceries
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Anti-Kickback
● Why Are Federally
Reimbursed Health Care
Providers Treated
Differently?
 The Government does
not want to pay the cost
of kickbacks
 Medical judgments are
clouded by financial
incentives
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Anti-Kickback
● Referrals of Federal health
care program-covered goods
or services;
● Payment, either direct or
indirect, in cash or in kind;
and
● Intent to induce referrals.
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Stark “Physician Self-Referral” Law
Congressman Pete Stark (D. CA)
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Stark
The Very Basics
●
●
42 U.S.C. § 1395nn
“. . .If a physician (or an immediate family
member of such physician) has a financial
relationship with an entity . . ., then the
physician may not make a referral to the
entity for the furnishing of designated health
services for which payment otherwise may
be made” under Medicare (and to some
extent Medicaid).
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Stark and Anti-Kickback
● Examples of
arrangements that
violate these laws
 Hospices
 Ambulance Services
 Joint Ventures
DME
 Medical Director
Contracts
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How Does This Relate to Marketing?
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Marketing to Providers, Suppliers, Vendors
● Marketing department
seeking to lower costs
or add revenue through:
 Giveaways to
referring physicians
 Relationships with
vendors
 Exploring joint
venture opportunities
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Marketing to Prospective Residents
● Marketing materials
emphasizing relationships
with providers or vendors,
i.e., “Passing the savings on
to you”
● Inadvertently boasting of
relationships that may
violate these laws
● Drawing attention of
competitors/regulators
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Government Urges:
Marketing Program and Activities
Should Be Part of Fraud and Abuse
Compliance Program
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