A woman could only object after the fact. All medical information held by providers and payers can be used by them for marketing without affirmative patient consent or without the opportunity to opt-out in advance. All protected health information can be disclosed for marketing. The rule does not protect information about diagnoses, prescriptions, pregnancy, sexually transmitted diseases, mental health treatments, or confidential communications. Marketing to minors or using protected health information about minors is permitted.
Patients have the right to opt-out of marketing only after receiving a marketing communication.
If a family of four has a dozen doctors, clinics, health plans, hospitals, laboratories, pharmacies, pharmacy benefit managers, etc., the family may have to write 48 separate letters to opt-out of each organization's marketing activities. A covered entity could require an individual to send a separate snail mail letter to opt out. Nothing in the rule says that a covered entity cannot charge patients who want to opt-out. HHS has defended the marketing rule by saying that it allows physicians to make recommendations to patients. However, the definition of marketing expressly excludes these recommendations.