Is it marketing for a covered entity to describe products or services that are provided by the covered entity to its patients, or to describe products or services that are included in the health plan's plan of benefits of the health plan?
No. The HIPAA Privacy Rule excludes from the definition of “marketing” communications made to describe a covered entity’s health-related product or service (or payment for such product or service) that is provided by, or included in a plan of benefits of, the covered entity making the communication.
Thus, it would not be marketing for a physician who has developed a new anti-snore device to send a flyer describing it to all of her patients (whether or not each patient has actually sought treatment for snoring). Nor would it be marketing for an ophthalmologist or health plan to send existing patients or members discounts for eye-exams or eye-glasses available only to the patients and members. Similarly, it would not be marketing for an insurance plan to send its members a description of covered benefits, payment schedules, and claims procedures.