Health Care Social Media - The Lawyers Don't Always Say No
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My presentation at the Third Annual Health Care Social Media Summit on how to establish a health care social media program without getting into trouble. Legal and regulatory issues covered include HIPAA, privacy, fraud and abuse, anti-kickback, and fee-splitting.
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Health Care Social Media - The Lawyers Don't Always Say No
- 1. Health Care Social Media:The Lawyers Donât Always Say No October 19, 2011 Third Annual Health Care Social Media Summit Presented by Mayo Clinic Center for Social Media and Ragan Communications David Harlow JD MPH The Harlow Group LLC blog ⢠healthblawg.com twitter ⢠@healthblawg
- 2. âOn the Internet, nobody knows youâre a dog.â
- 3. You can use social media effectively and stay on the right side of the law
- 4. Is social media right for health care?
- 5. New rules are nudging the health care industry to get more social What is ⌠an ACO? What is ⌠Meaningful Use?
- 6. The medical establishment is now getting wise to social media Monday, November 15 2010 AMA Policy: Professionalism in the Use of Social Media The Internet has created the ability for medical students and physicians to communicate and share information quickly and to reach millions of people easily. Participating in social networking and other similar Internet opportunities can support physiciansâ personal expression, enable individual physicians to have a professional presence online, foster collegiality and camaraderie within the profession, provide opportunity to widely disseminate public health messages and other health communication. Social networks, blogs, and other forms of communication online also create new challenges to the patient-physician relationship. Physicians should weigh a number of considerations when maintaining a presence online: (a) Physicians should be cognizant of standards of patient privacy and confidentiality that must be maintained in all environments, including online, and must refrain from posting identifiable patient information online. (b) When using the Internet for social networking, physicians should use privacy settings to safeguard personal information and content to the extent possible, but should realize that privacy settings are not absolute and that once on the Internet, content is likely there permanently. Thus, physicians should routinely monitor their own Internet presence to ensure that the personal and professional information on their own sites and, to the extent possible, content posted about them by others, is accurate and appropriate. (c) If they interact with patients on the Internet, physicians must maintain appropriate boundaries of the patient-physician relationship in accordance with professional ethical guidelines just, as they would in any other context. (d) To maintain appropriate professional boundaries physicians should consider separating personal and professional content online. (e) When physicians see content posted by colleagues that appears unprofessional they have a responsibility to bring that content to the attention of the individual, so that he or she can remove it and/or take other appropriate actions. If the behavior significantly violates professional norms and the individual does not take appropriate action to resolve the situation, the physician should report the matter to appropriate authorities. (f) Physicians must recognize that actions online and content posted may negatively affect their reputations among patients and colleagues, may have consequences for their medical careers (particularly for physicians-in-training and medical students), and can undermine public trust in the medical profession.
- 7. The open-book ethic of social media runs up against privacy rules in health care
- 8. Authentic interaction vs. legal liability
- 9. Leadership may fear losing control of message
- 10. People want to engage
- 11. Adopt a risk management mindset to understand risk and avoid liability
- 12. Understand HIPAA or other potential privacy violation
- 13. Understand Common Law Liability
- 14. More areas of the law will affect social media in health care organizations
- 15. You can limit liability by clearly defining roles and responsibilities in social media policies and procedures
- 16. Case Studies
- 17. The Case of Too Much Information
- 18. Health Care Social Media of the Future
- 19. Your social media strategy is ready to evolve
- 20. for contact info in an sms txt dharlow to 50500 harlowgroup.net healthblawg.com twitter.com/healthblawg david@harlowgroup.net Thank You David Harlow JD MPH The Harlow Group LLC
Hinweis der Redaktion
- Today, Iâm going to speak about some of the reasons why health care provider organizations should be using social media, and how you can do so without getting into trouble.
- On the Internet, nobody knows youâre a dog. This cartoon is almost 20 yrs old and reflects an internet ethos of an earlier timeAnonymityToday - flamers &trolls aside - There is a decided preference for owning oneâs online presence.. Particularly in the realm of SoMeThere are some anonymous bloggers, but for the most part, since authenticity is the name of the game, anonymity is out.
- HC marcom in 21st c is radically diff from the past - .. Or at least from the past that we know.Thru most of human history:Weâve shared info thru Word of Mouth19th-20th C. â Mass MediaOn the waneHyperlocal, or hyperspecialized& socialized â back to WOMPatientsAnd their caregiversAnd Potential referral sources(and many other humans)Are all on lineHealth Care Providers need to be online, engaged in social media as well.As Iâll address later on, there are regulatory pressures that will be nudging you in this direction, too.A lot of people are OK with this SoMe thing until they think abt potential liabilities ⌠So out of Almost 6000 hospitals in the USAccording to Ed Bennettâs inventory, about 1,000 have SoMe accounts â mostly twitter & facebook, yotube, linked in and blogs Found In Cache , ebennett.orgYou can use social media effectively and stay on the right side of the lawHow?You need to think clearly about your goalsYou need to figure out â very concretely â what youâre going to do to achieve those goalsYou need to focus on your goals and staying out of troubleThis requires advance planning
- Yes! Why? Bcs: People are flocking online to find and share health information using a variety of tools, as illustrated by Brian Solisâ Conversation PrismWhat are they doing on line?2009 Pew research study - 61% of adults in the U.S. look on line for health information (66% in 2010)Runaway leader â ahead of health care professional, family, friends, print and broadcast media52% of all searches are on behalf of someone else42% of all adults say they or someone they know has been helped by health information found on the internet (up from 25% in 2006)Edelman Health engagement barometer 2010:56% expect health care providers to educate the public on health topics (products or services)53% expect health care providers to help employees and their families to lead healthier lives52% expect health care providers to support the health of local communitiesBUT --- Think of social media as a power toolIf you donât know how to use the tool properly, you could get hurt
- ACO pt engagement. Pt-centerednessMU pt portals, Value Based Purchasing â care mgmt thru SoMe
- The AMA adopted a âprofessionalism in the use of social mediaâ policy that is refreshingly commonsensical for the most part.Most elements of the policy are commonsensical, and represent the extension of existing norms into the social media space:Don't post identifiable patient information online.Safeguard physician personal privacy online, understanding that anything posted may remain online indefinitely.Consider separating personal and professional profiles on line.*"What happens in Vegas doesn't stay in Vegas," or, Don't post material that may reflect poorly on the profession.At least one portion of the policy, though, could potentially impose significant obligations on individual physicians active in social media:When physicians see content posted by colleagues that appears unprofessional they have a responsibility to bring that content to the attention of the individual, so that he or she can remove it and/or take other appropriate actions. If the behavior significantly violates professional norms and the individual does not take appropriate action to resolve the situation, the physician should report the matter to appropriate authorities.
- Culture Clash-Need to acknowledge that up front and address it-Need to convene appropriate groups to develop relevant policies and procedures
- By developing the right consensus document, within the broader rules we have to live with, you can enable authentic interaction.Air force flow chart of policy on commenting on blog post âŚ..Thereâs always the question of legal laibilityHCPs want authentic interactions with patients and prospectivce patents â who wouldnât??Just need to go about it carfefully
- In addition to privacy concerns, social media, is of course open to criticism by traditional managers as being too open â folks live in fear of losing control of the message ⌠but as we know, you have already lost control of your message.
- We need to meet people where they are, and we need to speak their languageIt makes sense, and now itâs the law â patent engagement and patient centeredness requirements for ACOs or accountable care orgsWe need to ensure that the platforms for conversations are in placeHardware, software, human capital, Policies and prrocedures developed thru an inclusive process(not just execs â inclSoMe users throguhgout org â folks who are excited about this stuff, and who can help communicate the rules informally once theyâre adopted)
- Sharpen your pencils, folks, put on the green eyeshade, and put yourself in the shoes of the most risk-averse folks you know within your organizations.Need to internalize that perspective in order to be able to identify , avoid and manage risks
- A patient can release his or her own private information, protected health information, but nobody else can w/o consentIf you violate the letter of the law (or regulation), and disclose or use information in ways you should not . . . you are liable to the federal governmentFinesState AGs can file suit under HITECH ActUnder state law there may be liability to patients as well for violating confidentialityAnd remember, patient claims that go to court will be heard by a jury
- A duty that one party has to another partyA breach of that dutyHarm to the second partyCausal link between the breach of the duty and the harmExample: A physician has a duty to provide services according to a standard of care; if she provides lesser services and her patient is injured as a result, thatâs malpractice âNEW Example: A health care organization has a duty to keep patient data confidential. If it breaches that duty (the standard is efined by HIPAA, but the duty can be under state law), and there is harm (publication of something private may be assumed harmful), thereâs liability
- Social media cuts across all areas of the law â we think of it as something new now, but it is fast becoming part of our world, the general background environment within which we operate, so the issues are not just centered on privacy, etc, more wide ranging(1)In the workplace, the NLRB ruled in an ambulance service case that an employer may not adopt a âsocial media gag ruleâ which was a policy prohibiting negative depictions of the company of facebook and other social media sites. The NLRB found that the policy had a chilling effect on union organizing, but did not limit its ruling to union shops. So govt is giving us reasons to make social media policies more liberal.(2)Can location-based coscial media get you into trouble? Yes, if youâre not careful âŚCoupons for coffee in hosp cafeteria every time you check in â thatâs OK ⌠Potential Fraud & Abuse issue â esp for frequent fliers â Need to be sure something like that isnât âan inducementâ Be cognizant of privacy & other concerns - I really donât want to see this msg on foursq: <â David Harlow is Mayor of the Disgusting Pustules Center of Excellenceâ > Success re: getting tested for STDs MTV campaign âŚWhich reminds me of qpid.me â (explain) also â not just pt focused: Nick Dawson â Bon Secours system in VA â let docs compete for badges for doing something like adhering to evidence based medicine guidelines.(3)Groupon â often - for services traditionally not covered by insurance or at least not cov by gov ins Medicare/caid â chiro, acupuncture, dental â issues (1) 50% take = fee-splitting (2) = kickback? (3) are discounts impermissible under providerâ agreement w insurance company? Your discounted price could become your contract price next year (4) gift certificate â state laws on expiration dates
- Patient consent where relevantNotice of Privacy Practices (HIPAA NPP) should address social mediaHow it is usedDegree of privacy that may be expectedExpress notice not to use for emergencies; statement that channel is not monitored 24/7NPP and internal P&P should be consistentRemember: the fact that a patient-provider relationship exists is itself PHIEmployee training â clinical and non-clinicalGood judgmentDo not practice medicine on line . . .Unless the patient has given informed consent in advance (and even with consent, clinical interactions should not be in a public forum)Emergency exceptions? Similar to what we would do âIRLâDo not try to establish clinician-patient relationship online . . .Unless through a secure, private portal Clinician-patient communication should end up in EHR
- There are many informative examples of social media use gone awry in health care. Letâs look at a few and examine what went wrong â or â in some cases - what went right.
- In the end, these cases are all about too much information âNo matter what the platform, there will always be some folks who want to use it, and those who donât â Issues: FB -- âIâm cancer free one year post treatment.â --- Emergency communication ---- Rx refill requestAre your terms and conditions posted? --- Is someone scrubbing the page for inappropriate content daily?Positive â thatâs great â what abt if negative? (neg pt experience, other) --- What do you write back?Twitter -- Politician seen at clinic when itâs closed to the public --- Live-tweeted surgery going southTwitter vs. 911 --- Gunshot woundâIâve been sitting in the ER for hours.âBLOG --- Protected Health InformationPatient blog â own PHI, so not an issue --- Provider blogs â Need to be carefully de-identified.Keep in mind that most de-identified PHI can be re-identified if someone puts their mind to it ⌠cf Netflix prize experience (Netflix put up $1m for th e team that oculd best improve its moveire recommendation engifnem, nand some AT&T researchers won â they compared deidentified data from netflix w/ identified data on another movie website (IMDB) and they figured out who was who.
- Weâre getting to the point where there are more & more external reasons to engage in health care social mediaPatient Engagement and Patient-centered care are part of the ACO statuteCan build something like Virgin Health Miles â health promotion , incentives, teams, weight loss diet exercise, all opt-in w disclosuresIt has to be about the patient, not about the institution.
- To sum up âAny hcp can join the vanguard by being smart:Plan what you want to do, understand why youâre doing it, and write the policies and procedures up front You can stay on the right side of the lawStick to your guns âRespect the lawRespect your constituenciesRespect the power of the tools you useThink about the framework and the case studies weâve looked at todayPlan for the future â changes are coming, and itâs better to be ahead of the curve than to play catch-up