NIL (Name, Image, Likeness) is for more than just athletes! HIPAA, PHI, Illinois Law, Specific Written Permission, and more. These are important for healthcare providers to comply with testimonial laws and regulations.
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Transcript:
I get questions on a regular basis from our members asking questions about testimonials and making sure that they get that right and that they’re following all the requirements for marketing and advertising. You know, as we start this football season, everybody is familiar with college football and the whole NIL process, or name, image, and likeness, and there are quite a few statutes that cover not just the sports athletes, but everyone in particular regarding testimonials and for commercial purposes and how those things are used. So we’re going to cover that really quickly here, and I’ll provide some links down below to give you some additional information as well.
First of all, when it comes to testimonials, you know one of the questions I get is, “Hey, can we just use them on camera saying that they give us authority to be able to use this information as good enough? And the answer is no, you cannot. One, you want to make sure that you have rock-solid evidence that they have signed, knowing that you’re going to be using that for purposes such as marketing and advertising. You know, from a HIPAA perspective, they’re going to be releasing PHI, so you want that in writing to begin with. However, more importantly, Illinois has actually passed a statute called the Illinois Right of Publicity Law that specifically governs these types of instances, and basically, you cannot use an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent from the appropriate person or persons. That also doesn’t mean that you can just use them once they’ve deceased either. They have to have given you explicit permission and transferred the ownership of the rights to you, or to someone else who gives you those rights as well. So that’s even more complicated.
But the biggest thing is this: you absolutely need to make sure that you get it in writing, and you want to tell them precisely what you’re going to use it for. If you’re going to take a snapshot of it and just include a small quote, you want them to agree to you using that. If you’re going to use the full video, you want to make sure that you’re listing that on the form. If you’re going to use an audio clip on a podcast or who knows what else, you want to make sure that you’re using that. If you’re going to use it in print inside of a blog or on your website, each one of those components you want to make sure that you have specifically listed, and that they have given you permission to use their testimonial in that fashion.
So, for ICS members, we have a form that actually has laid all of this out that you can tailor for your office as well. That’s downloadable by our members, and you can grab that. I’ll provide that link down below, or a link to the article that’ll get you to that download. So HIPAA-that’s a concern. You want to make sure that your PHI is covered from a HIPAA perspective. The Illinois Right of Publicity Law-that’s also critical. Now this is another one that also gets missed. Just because a patient says something doesn’t always mean that you can just use it in your marketing. It still has to adhere to Illinois law, so it still has to follow the marketing guidelines and requirements that are baked into the Illinois Medical Practice Act. So it still has to follow all of those because you’re using it for your marketing. Your marketing has to follow state statutes. So, just because a statement a patient says it doesn’t mean that you can use it.
An example I use in this regard is, you know, if a patient guarantees the results, right? You know, you want to see Doctor Joe because Doctor Joe is the best doctor in Illinois, and there’s of course that you can’t claim superiority. That’s one of the requirements under the Medical Practice Act. So, in that case, you couldn’t use that testimony or that portion of the testimonial. So, you just want to make sure that you’re also following Illinois law.
So, HIPAA, PHI, critical Illinois Right of Publicity law. Make sure you cover all of the different aspects and how you’re going to be using their name, their image, their likeness, their video, their audio, the whole nine yards. Make sure you get that on there, and then the Illinois Medical Practice Act. Make sure you’re following all those components. Hopefully, this helps you out. We’ll catch you next week.
