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Name, Image, and Likeness Agreements in Healthcare

Client Alert

Have you worked hard to cultivate your brand as a healthcare provider? If so, executing a Name, Image, and Likeness (“NIL”) agreement may be of interest to you. NIL agreements are contracts that allow an individual to profit from their name, image, and likeness. Specifically, these agreements protect an individual’s brand by defining how others can utilize their name, image, and likeness in advertisements, sponsorships, and endorsements, and the compensation the individual will receive as a result. NIL agreements are typically used in the context of athletics, such as enabling student-athletes to profit from their personal brand. However, NIL agreements have recently proved to be useful in other areas. For example, some healthcare providers have begun to utilize NIL agreements to promote the brand they have created through their healthcare practice.  Most recently, we have seen the most healthcare NIL activity with longevity and wellness providers, as well as orthopedics.  

Depending on who wishes to contract with a provider for NIL rights, there can be regulatory concerns.  Remember, healthcare is one of the most regulated industries in the United States!  If there is the potential to generate referrals for services that will be paid by a government health plan, NIL agreements must comply with applicable regulations that limit when and how a healthcare provider can accept payment for certain referrals, such as the Anti-Kickback Statute and the Physician Self-Referral Law, commonly known as the Stark Law. Conversely, if there are no third-party reimbursements possible (i.e. a contract with a sporting goods store), then the regulatory landscape looks different. In addition, any anecdotal information the healthcare provider chooses to share is subject to the Health Insurance Portability and Accountability Act (“HIPAA”), meaning that all identifying patient information must be removed.  

The Federal Trade Commission (“FTC”) also has standards that healthcare providers must follow when advertising. Healthcare providers should ensure that any NIL agreements meet the FTC standard for medical advertising, and that any statements made by the healthcare provider are true, not materially misleading, and are supported with scientific evidence.       

We recommend engaging an attorney to draft or review your healthcare NIL agreement to ensure that it complies with the complex and changing regulations, and that it ultimately protects your interests.

To learn more about how healthcare NIL agreements could impact your practice, please contact BMD Member Jeana Singleton at jmsingleton@bmdllc.com or 330-253-2001.         


Chemical Dependency Professionals Board Rule Changes: Part 2

New rule changes for Certification of Chemical Dependency Counselor Assistants (CDCA)

Board of Pharmacy Rule Changes

Board of Pharmacy made changes to rules effective on March 4, 2024

Counselor, Social Workers, and Marriage and Family Therapist (CSWMFT) Board Rule Changes

The Counselor, Social Workers, and Marriage and Family Therapist (CSWMFT) Board has proposed changes to the Ohio Administrative Code rules discussed below. The rules are scheduled for a public hearing on April 23, 2024, and public comments are due by this date. Please reach out to BMD Member Daphne Kackloudis for help preparing comments on these rules or for additional information.

Latest Batch of Ohio Chemical Dependency Professionals Board Rules: What Providers Should Know

The Ohio Chemical Dependency Professionals Board recently released several new rules and proposed amendments to existing rules over the past few months. A hearing for the new rules was held on February 16, 2024, but the Board has not yet finalized them.

Now in Effect: DOL Final Rule on Classification of Independent Contractors

Effective March 11, 2024, the U.S. Department of Labor (DOL) has adopted a new standard for the classification of employees versus independent contractors — a much anticipated update since the DOL issued its Final Rule on January 9, 2024, as previously discussed by BMD.  In brief, the Fair Labor Standards Act (FLSA) creates significant protections for workers related to minimum wage, overtime pay, and record-keeping requirements. That said, such protection only exists for employees. This can incentivize entities to classify workers as independent contractors; however, misclassification is risky and can be costly.