social media in healthcare: risks under hipaa and other...
TRANSCRIPT
Social Media in Healthcare: Risks Under
HIPAA and Other Federal and State Laws Minimizing Breach of Privacy and Physician-Patient Relationship Claims,
Physician Licensure Concerns, and Other Potential Liabilities
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WEDNESDAY, JUNE 27, 2012
Presenting a live 90-minute webinar with interactive Q&A
Jennifer R. Breuer, Partner, Drinker Biddle & Reath, Chicago
Nicole D. Galli, Partner, Benesch Friedlander Coplan & Aronoff, Philadelphia
David C. Harlow, Principal, The Harlow Group Health Care Law & Consulting, Newton, Mass.
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David Harlow JD MPH THE HARLOW GROUP LLC
Social Media in Healthcare Risks Under HIPAA & Other Federal & State Laws
blog • healthblawg.com
twitter • @healthblawg
about.me/davidharlow
June 27, 2012
webinar
“On the Internet, nobody knows you’re a dog.” 6
Health care marcomm in the 21st century is radically different from the recent past
7
“Why Do You Rob Banks?”
Willie Sutton:
“Because That’s
Where the Money Is.”
8
Is social media right for health care?
9
HCPs want to use social media, but many are concerned about liability
10
You can use social media
effectively and stay on
the right side of the
law 11
Facebook Nation is the third largest nation in the world
global warming sex facebook
12
People want to engage
13
Specialized tools for specific uses
14
15
17
Photo and
Video Sharing
18
• • •
Facebook for
Grownups
19
Google+
20
21
23
patientslikeme
24
25
Health Care Social Media of the Future
Curation Communication
Engagement Community
Patient
26
Your social media strategy is ready to evolve
27
for contact info txt dharlow to 50500
or for a vCard scan the QR code
harlowgroup.net healthblawg.com
twitter.com/healthblawg [email protected]
Thank You
28
Social Media in Health Care:
Risks Under HIPAA and Other
Federal and State Laws
Stafford Publications
CLE Webinar
June 27, 2012
By: Jennifer Breuer, Esq.
Social Media in Health Care | June 27, 2012 | 30
Regulatory Considerations
Social Media in Health Care | June 27, 2012 | 31
Top Legal Issues in Social Media
> Disclosure of Confidential Information
> Trademark Infringement
> Copyright Infringement
> Defamation
> e-Discovery
> Endorsements
> Privacy and Publicity Rights
> HR Issues
Social Media in Health Care | June 27, 2012 | 32
And those are before you get to legal
issues specific to health care…
> HIPAA and More Stringent Health
Information Privacy Laws
> Malpractice
> Unlicensed Practice of Medicine
> Creation of Physician-Patient Relationship
> Fraud and Abuse
Social Media in Health Care | June 27, 2012 | 33
And, don’t forget legal issues applicable to
nonprofit entities….
> Prohibition against political endorsements
– Content on social media sites needs to be
vetted for political activity, especially when
commenting on State and local issues
Social Media in Health Care | June 27, 2012 | 34
Top Legal Issues:
Disclosure of Confidential Information
> Ease and speed of conversation may lead to disclosure of confidential information, including trade secrets and other proprietary information
> Such disclosure may result in loss of intellectual property rights
> Policies and training are required to prevent inadvertent disclosure of confidential information
Social Media in Health Care | June 27, 2012 | 35
Top Legal Issues:
Trademark Infringement
> Use of third-party marks without permission
may result in liability for trademark
infringement, dilution or unfair competition
> Must take care not to create the impression
of third-party endorsement, affiliation or
sponsorship
Social Media in Health Care | June 27, 2012 | 36
Top Legal Issues:
Copyright Infringement
> Pictures, text, music and videos are easily copied to social media sites
> If such transfer is without the permission of the content owner, copyright violation can occur
> Obtain permission before using content created by others – even if that means paying for it – The cost of content is likely cheaper that defending
against allegations of copyright infringement
> Register under Digital Millennium Copyright Act – Create procedure for handling complaints
– Incorporate in Terms of Use
Social Media in Health Care | June 27, 2012 | 37
Top Legal Issues:
Defamation and e-Discovery
> Defamation – Liability varies depending on who creates content; third-
party vs. host
> e-Discovery – Content on social media sites is discoverable to the
extent the communications are deemed public (not private)
– Like emails, content is easily misconstrued
– The best defense against e-discovery is implementation of a comprehensive document retention policy
– But, like emails, getting rid of electronic content is difficult
Social Media in Health Care | June 27, 2012 | 38
Top Legal Issues:
Endorsements
> 15 USC 45 prohibits "unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce“
> FTC Endorsement Guidelines for Bloggers
– Disclose compensated relationships
Including instances in which bloggers get use of free products or services
– Paid endorsements are deceptive if they make false or misleading claims
– Advertisements featuring a consumer’s personal experiences with a product or service must disclose the results that consumers generally should expect
Stating “results not typical” is not enough
Social Media in Health Care | June 27, 2012 | 39
Top Legal Issues:
Privacy and Publicity Rights
> Federal and State laws recognize an individual’s right to privacy
> State laws also recognize an individual’s right to publicity – Individuals may control and to choose whether
and how to use his or her identity for commercial purposes
> Thus consent is often required before posting an individual’s likeness or other identifying information on a commercial site
Social Media in Health Care | June 27, 2012 | 40
Health-Specific Legal Issues:
HIPAA and More Stringent Privacy Laws
> It’s easy to inadvertently disclose PHI through social media – whether the disclosure is of a name or other individually identifiable information
> E.g., After holiday party on hospital floor, nurse posts pictures of the event on social media site, one of which includes a photo of a patient in the hallways
> E.g., Nurse posts a photo of a child in a hospital bed on her Facebook page, along with a request for prayers, disclosing the child was soon to undergo surgery
– Posting included child’s first name
– Nurse alleged the child’s mother provided the photo and verbal consent to post on page
> Even so: – Need HIPAA-compliant, signed authorization
– Without authorization, nurse bound to safeguard the child’s PHI, whether or not nurse had a direct treatment relationship with child
Social Media in Health Care | June 27, 2012 | 41
Health-Specific Legal Issues:
HIPAA and More Stringent Privacy Law
> February 22, 2012: Memorial Hermann Hospital “live tweeted” double coronary artery bypass
– One surgeon tweeted, posted photos to Hospital’s Facebook page and responded to questions
– Another surgeon performed the surgery
– 4000 twitter followers
– 100 tweets, photos and videos
> Was PHI disclosed?
> Was patient authorization obtained?
Social Media in Health Care | June 27, 2012 | 42
Health-Specific Legal Issues:
Malpractice
> With live transmission of event, what if
something goes wrong?
> Tweet and post process allowed for delay
in “real time” posting
> Performing surgeon was expert and
surgery was considered routine
Social Media in Health Care | June 27, 2012 | 43
Health-Specific Legal Issues:
Malpractice
> But, what if patient wants family member to
record a surgery or other procedure – to
share with other family members
(lawyers?) who could not be present?
Social Media in Health Care | June 27, 2012 | 44
Health-Specific Legal Issues:
Licensure and Patient Relationship
> Blogs, FAQs about specific medical conditions and “Ask the Professional” chats also create risk for health care providers
> Consider:
– Are you creating a physician-patient relationship?
– What is the appropriate standard of care?
– Could there be an issue with the unlicensed practice of medicine?
– Could a communication result in a claim of malpractice?
> To reduce risk, do not provide specific medical advice via social media
– Providing links to published studies or other online resources may be ok
Social Media in Health Care | June 27, 2012 | 45
Health-Specific Legal Issues:
Fraud and Abuse
> OIG AO-12-02 – Coupon site where health care providers could offer discounts for health care
items and services
– Providers would pay flat fee to post on site; consumers would print and use (no pre-payment for service permitted)
– Discount would apply to whole service, not just patient’s co-pay or deductible
– OIG found two activities implicate AKS; also may implicate CMP Statute: Selling ad space on site to health care providers that bill federal health care programs
Posting coupons for health care items and services
– OIG concluded low risk of violation of AKS or CMPs: Site sponsor not a health care provider
– “White coat” marketing subject to closer scrutiny
Payments from Providers do not depend on coupon use
Customers not required to provide any personal information – no targeted ads
Not pre-paid coupons – no risk of overutilization
Terms of Use require compliance with Discount Safe Harbor
Jennifer R. Breuer
Partner
Drinker Biddle & Reath, LLP
(312) 569-1256
Thank you.
47
Strafford Publications
June 27, 2012 CLE Webinar
By: Nicole D. Galli
SOCIAL MEDIA IN HEALTHCARE:
RISKS UNDER HIPAA AND OTHER
FEDERAL AND STATE LAWS
MY BENESCH MY TEAM
48
Social Media Best Practices
How can a health care provider address social media
risk?
Audit current uses
Establish Committee
Set strategy
Develop policies
Conduct training
Engage in monitoring
Use disclaimers
MY BENESCH MY TEAM
49
Social Media Best Practices:
Audit
Conduct a social media “audit” by investigating and
identifying already existing social media activities
If multiple facilities, check for each facility not just the
overall organization
Can do own searches, for example, on each social
media site and Google
Can use search companies, e.g. Radian 6
MY BENESCH MY TEAM
50
Social Media Best Practices:
Audit
Look for informal groups of employees, patients
You may not take action, but you should know they are
there
Pay special attention to social media use with regard
to hiring, discipline and termination of employees
MY BENESCH MY TEAM
51
Social Media Best Practices:
Committee
Once you have identified existing activities, determine
how you would like to be engaged (or not) in the future
Consider forming a social media committee or task
force to create strategy and develop policies
Such groups should include personnel from all
interested parts of the organization
May also include appropriate individuals from outside the
organization
MY BENESCH MY TEAM
52
Social Media Best Practices:
Committee
Social media committees typically include personnel
from:
Legal, compliance, risk, HR, communications,
marketing
Some healthcare providers also include medical
personnel and even patients
Even if not part of committee, their input should be sought
MY BENESCH MY TEAM
53
Social Media Best Practices:
Setting Strategy
Issues to consider in setting strategy:
Does the organization want to have its own social
media presence?
If so, who will participate? Who will monitor?
Will the organization include any social media
components on its website?
How will the organization handle new requests for
social media participation by staff/patients?
MY BENESCH MY TEAM
54
Social Media Best Practices:
Policies
What policies should be considered:
Most common - for employees, for personal use
Be very careful in how these are drafted especially given
most recent NLRB guidance
Most sample policies on the web are out of date
NLRB has provided a sample policy in its most recent set
of guidance issued last month.
MY BENESCH MY TEAM
55
Social Media Best Practices:
Policies
Other policies that should be considered:
For employees or others who are engaging in social media
on behalf of the organization
For employees who are monitoring social media sites on
behalf of the organization
Comment policies/guidelines directed to third parties
May also want policies for use by HR/managers
MY BENESCH MY TEAM
56
Social Media Best Practices:
Training
Best way to manage risk is through training
Include refreshers on basic issues such as HIPAA, as well as
issues unique to social media
Train all employees, including physicians
Managers, HR personnel and persons responsible for
monitoring the organization’s social media outlets need
additional training
MY BENESCH MY TEAM
57
Social Media Best Practices:
Monitoring
Monitoring is also key
Essentially, one needs to engage with social media, even if
passively
Problems are best handled promptly – easiest way to
minimize impact
Need clear and consistent guidelines and procedures for
monitoring
Consider using Google Alerts or services like Radian 6
MY BENESCH MY TEAM
58
Social Media Best Practices: Handling
Problems
How should a health care provider address problems
that arise?
React, if at all, quickly but thoughtfully
Be consistent and respond only when and how appropriate
Brainstorm and plan for crisis response
Consult with legal counsel whenever anything unforeseen
arises
MY BENESCH MY TEAM
59
Social Media Best Practices:
Disclaimers
Health care provider should use disclaimers
Not giving medical advice
Not creating a doctor patient relationship
If it is an emergency – call 911 or go to the nearest
emergency room
For individuals, should be clear when not speaking on behalf
of the organization
MY BENESCH MY TEAM
60
Social Media Best Practices:
Final Thoughts
Use common sense
Same rules that apply off line apply on line
Privacy rules
Employment laws
Intellectual Property
Protect confidentiality
MY BENESCH MY TEAM
61
Thank you!
Nicole D. Galli, Esquire Benesch Friedlander Coplan & Aronoff, LLC
1650 Market Street, Suite 3611 Philadelphia, PA 19103
(267) 207-2948 [email protected]