The penalties are all laid out in a statute, and the Secretary of Health has the right to collect the fines. I sure would not market to those individuals and would return the list.
It appears in the first scenario that the eye care professional is referring the patient for treatment from the hearing center("treatment" includes diagnosis under HIPAA's definitions). Marketing communications do not include referrals for treatment. Further, face-to-face communications between an eye care professional and a patient involving treatment referrals are not marketing communications. However, if the eye care professional is disclosing protected health information(PHI) to the hearing center in exchange for direct or indirect remuneration for the hearing center to make a communication about its products or services that encourages the patients to purchase or use the hearing center's products or services, that is a "marketing communication" under HIPAA and the patient must authorize the disclosure of PHI and be informed that remuneration is being exchanged.
In the second scenario, it appears that you are paying the eye care professional for PHI in order for the hearing center to market or advertise to all eye care patients, or the eye care professional is selling the PHI to the hearing center. In either case, the patient has to provide written authorization for the disclosure/sale of the PHI and the patient must be informed that remuneration is being exchanged. In either case, violations of HIPAA occur if patient authorizations are not obtained in accordance with HIPAA's requirements.
There are no private cause of actions under HIPAA, but the HHS Office of Civil Rights may bring enforcement actions and fine providers for violations of HIPAA. Also, state attorney generals may file suit to enforce HIPAA. Patients may sue for violations of state law or common law causes of action such as invasion of privacy or other torts.
There may Illinois laws there are stricter than HIPAA regarding marketing communications and sale of PHI. You should obtain legal counsel to discuss these matters and your licensing board's rules regarding receiving PHI in exchange for remuneration.
There are lawyers in Chicago that focus their practice on healthcare law and the many highly technical regulations in that industry. I suggest you seek out one of those lawyers for a formal opinion before you are on the wrong side of massive governmental fines.
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