All medical practices including specialists, physical health, mental health, dentists, chiropractors, and general practitioners depend on referrals from other doctors and from patients for their business. Patient referrals can be direct, such as a parent telling a daughter or son which doctors the parent likes.
In the 21st century, many consumers look to a variety of social media sites and websites of practices for testimonials and reviews. The higher the rating, the more likely a new patient is likely to choose one medical practice over another. Since good reviews mean more patients, doctors, therapists, and other practitioners solicit reviews from their patients.
It is also for this reason that medical practices need to work with skilled healthcare compliance lawyers who understand the laws and professional standards that regulate the solicitation of reviews. Doctors who offer incentives for reviews or who make statements that aren’t true can be subject to severe fines, penalties, and ethical violations by the FTC and by local medical boards.
In addition, the Federal Trade Commission (FTC) regulates the Consumer Review Fairness Act (CRFA) which was enacted to help ensure people wouldn’t be sued or harmed due to posting of a negative review.
The Consumer Review Fairness Act (CRFA)
The CRFA provides a checklist of tips businesses, such as healthcare practices, should consider regarding CRFA compliance. The CRFA is designed to protect patients/consumers. The Act is also designed to help those businesses/medical practices that operate fairly and who obtain positive reviews based on merit – not incentives or legal threats.
The CRFA was passed based on reports some companies had contracts with their consumers that allowed the company (health practice) to file a lawsuit or penalize consumers for posting poor reviews.
The CRFA protects online reviews, social media posts, uploaded videos, and uploaded photos. The CRFA covers evaluations as well as reviews.
The CRFA, according the FTC, makes it illegal for any business/medical practice “to use a contract provision that:
- Bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct
- Imposes a penalty or fee against someone who gives a review
- Requires people to give up their intellectual property rights in the content of their reviews”
The law doesn’t apply to employment contracts or contracts with independent contractors such as vendors.
The CRFA does allow companies to prohibit or remove reviews (where the company has control over the removal) if:
- The review contains confidential or private information
- “Is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic”
- Isn’t related to the services or products of the company
- Is misleading or false (though a negative patient assessment doesn’t mean an assessment is misleading)
- Violations of the CRFA can be treated like other FTC rules on “unfair or deceptive acts or practices.”
A skilled healthcare lawyer can review business contracts that seek to regulate online terms and conditions. We explain what the law prohibits, what the law permits, and what modifications to contracts that target reviews may be necessary.
The FTC’s endorsement guidelines
The FTC has its own set of endorsement guidelines that health practices need to understand. Failure to follow the guidelines may lead to an FTC complaint for unfair practices of deceptive practices.
The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading. In addition, the Guides say, if there’s a connection between an endorser and the marketer that consumers would not expect and that connection would affect how consumers evaluate the endorsement, that connection should be disclosed.
For example, if an ad features an endorser who’s a relative or employee of the marketer, the ad is misleading unless the connection is made clear. The same is usually true if the endorser has been paid or given something of value to promote the product.
Makers of health care products and health care providers need to understand the FTC guidelines on soliciting endorsements, affiliate marketing, employee endorsements, and permissible testimonials […]
About the Endorsement Guides
The guidelines cover a broad range of categories. Some of the guidelines apply to the endorser, the patient. Others apply to the medical practice.
Healthcare practices need to review the following endorsement issues with their healthcare lawyer:
- What endorsements are covered by the FTC Act?
- When are disclosures required and how should the disclosures be made to properly inform the reader/consumer?
- What product placements are permissible?
- What duties does the medical practice regarding what others say on social media?
- Can the practice use expert endorsers and how can those experts properly comment on the practice services?
- Can intermediaries be used?
- What social media and online programs are permissible?
- Under what conditions can employees make endorsements?
- Can the practice use testimonials that don’t reflect a typical consumer experience?
Doctors, healthcare providers, companies that sell health protections, and all other health businesses need to understand how these guidelines affect their practice. The FTC guidelines are set forth in a series of Questions and Answers. A few examples follow:
Can my company contact patients/customers and interview them about their experience about the practice’s services or the company’s products? Can the company ask the patient/customer to be allowed to quote the evaluations in their ads?
Generally, according to the FTC, businesses can ask their patients/customers about their experiences and include their comments in their ads.
Can the business pay the patient for using their endorsements?
The FTC answer is that it depends. The health practice or health company cannot give the patient/consumer “a reason to expect compensation or any other benefit before they give their comments.” Once the review/comments are made – a payment “may” be possible.
If the healthcare practice or business does give the reviewer a reason to expect a benefit – before the review or before the comments are made – then the endorsement cannot be used. Just saying ahead of time that that the comments may be used for company advertising may suggest payment or a benefit is forthcoming. Companies may be able to use the endorsement if a payment was suggested – only if they also disclose the payment with the endorsements.
Can “I tell people that if they say good things about my business on Yelp or Etsy, I’ll give them a discount on items they buy through my website?”
Generally, this is a bad idea. A discount is an incentive to offer a positive review. If a discount is being offered, the discount should be clear and verifiable that the provider or company told the patient/consumer that whenever the patient or consumer posts their comments the posting should also disclose the discount or other benefit. One verifiable method is to inform the patient that the health provider will examine the site to see if the disclosure was indeed provided and that the discount is conditioned on the company seeing the disclosure on the site.
“A company is giving me a free product to review on one particular website or social media platform. They say that if I voluntarily review it on another site or on a different social media platform, I don’t need to make any disclosures. Is that true?”
No. If you received a free or discounted product to provide a review somewhere, your connection to the company should be disclosed everywhere you endorse the product.
It doesn’t matter how the free product was delivered to you – by giving you money, shipping the product to you, or giving a code. The bottom line is that anyone who reads the review has the right to expect that the review was made on merit and not due to any incentive.
Additional FTC guideline issues
The guidelines cover many other topics. For example, disclosures are of little use unless the disclosures appear next to the evaluation, comment, to reviews. Pacing the review at the top of a web page and the disclosure on another page or the bottom of the same page doesn’t inform the reader that the review is subject to the disclosure because the reader will likely never see the disclosure.
- Endorsers can never review a product or a service – if the endorser hasn’t tried the product or used the service.
- Endorsers must be honest. An endorse can’t give a good review when the endorser knows the product is bad.
- Paid spokespeople generally can be used if they announce they are being paid.
- Employees who review products or services – such as saying “My boss is a caring person who treats every patient like family” still need to disclose that the endorser are an employee.
There are many other risks with posting and soliciting endorsements that must be reviewed with an experienced healthcare compliance lawyer. Otherwise, the FTC may send a warning letter and/or start litigation to force the reviews, evaluations, and other postings to be removed. The FTC may also seek monetary fines and penalties.
Additional solicitation issues doctors and health companies need to consider
There are other solicitation considerations physicians need to review with a skilled healthcare lawyer. Some of these considerations are:
- Ethics codes. There are medical ethic codes based on the type of treatment that is being provided and the state or county where the services are being offered.
These codes may also cover whether endorsements can be sought and the conditions and restriction on seeking an endorsements. While some practices may be fairly open about seeking endorsements provided the endorsements are honest and there are full disclosures about any incentives, there are some practices that do not favor endorsements.
- Mental health patients. The following health organizations don’t approve soliciting reviews, endorsements, or testimonials of current patients or anyone – because patients are at high risk of being influenced. Mental health patients are at high risk of feeling pressured that if the patient doesn’t give a good review, the patient won’t get the care the patient needs – or because the patient may be vulnerable in some other way.
- Stark Law and the AKS. For most every practice, a better alternative or at least a parallel alternative is to seek and post testimonials from the doctors and healthcare providers you work with – provided the testimonials don’t violate Stark Law or the Anti-Kickback statute which regulate referrals.
- HIPAA. Health care providers need to be careful that the provider complies with the Health Insurance Portability and Accountability Act (HIPAA). Engaging with patients on Facebook, Twitter, LinkedIn, or Twitter runs the risk of disclosing unauthorized patient information.
- Consent. Many patients are willing to provide positive comments if asked. Doctors and other healthcare providers do need to make sure the provider gets written permission from the patient to use the endorsements.
Most reviews are on third party sites such as Facebook and Yelp. It is important to seek good reviews and a range of comments to give your business credibility. Testimonials help your practice appeal to new patients, especially if the testimonial sounds convincing. Generally, the best way to get a good review is to be a good doctor. As a general rule, if you provide quality caring and timely service, the good reviews and testimonials should follow.
Patient and customer endorsements and testimonials area a strong way to promote a medical practice or a healthcare company that sells medical products. Medical practices and companies though need to understand the proper lines between seeking solicitation from patients, employees, and business contacts – and ensuring that prospective new patients and customers aren’t being misled.
Contact Cohen Healthcare Law Group to understand the boundaries between proper solicitation of patients, employees and business contacts – and deceptive advertising. Our experienced healthcare attorneys can explain the federal and state laws that apply. We work to help you promote your business and protect yourself from complaints and charges of unfair or deceptive practices.