I have been asked to write up some of the core takeaways from the health care social media presentations I have been giving recently, so I am sharing a version of this narrative on HealthBlawg, in two parts. You may wish to begin with Part I.
Professional responsibility and malpractice liability
The American Medical Association has promulgated a social media policy; so has the Veterans Administration. The two represent very different approaches. The AMA essentially advocates proceeding with caution, and being cognizant of the damage that one’s own social media activities – and one’s colleagues’ – may do to the profession. The VA, on the other hand, is out in front on this issue – just as it was with electronic health records – encouraging the use of social media tools to disseminate information and engage patients and caregivers in productive dialogue likely to improve overall wellbeing and health care outcomes.
Patient care should not be provided in open social media forums, but appropriate disclaimers on blogs, Facebook pages, YouTube channel pages, and the like, should be sufficient protection for providers seeking to use these tools for sharing of general advice and information.
As in other settings, there are emergency exceptions. If the only way to communicate lifesaving information to a patient is via a public social media channel, then a clinician should not refrain from doing based on a concern about a privacy violation.
Daily deal websites
Groupon, Living Social and other daily deal websites are being used by health care providers — though thus far mostly by those that are not covered by traditional commercial or governmental health insurance (e.g., dental, chiropractic, acupuncture services). This may change as the health insurance landscape changes over time. There are a number of legal issues, and their resolution will depend, in part, on where you are situated, since many of the relevant rules are state laws, which vary. For example:
- Groupon collects 50% of the price of the groupon as its fee; is that illegal fee-splitting under applicable state law?
- Is the 50% fee an illegal kickback in exchange for a referral? Are you subject to federal laws in this area in addition to any state laws?
- Do provider agreements with third party payors prohibit the offering of discounts to plan subscribers? (If you can get over the first two issues, you may need to screen out patients who are insured by carriers who limit your ability to discount or risk being in default under an agreement with your biggest customer.)
- There is at least one more issue to consider, as well: State laws on gift certificates and their requirements touching on expiration dates. Lawsuits have been filed alleging that the relatively short life of the daily deal violates state gift certificate laws.
With the proliferation of high-deductible health plans, and FSAs, HSAs and the like, the general public is becoming more price sensitive in paying for health care services; while health care providers need to become more creative in order to address this issue, they must also remember that they are subject to a wide-ranging set of regulations above and beyond other consumer-facing businesses.
Social Media Policies and Procedures
Despite the legal landscape, it is possible for a health care provider to develop a robust social media program. The critical first step is developing a set of policies that respects the legal and regulatory limits, and that is consistent with the organization's level of readiness to engage through social media. Establishing clear guidelines will allow clinicians and staff to participate in the online conversation without having to review individual posts on a regular basis with legal and regulatory advisors. An existing policy from another organization may be used as a starting point in the development process, but local customization is key.
An external-facing social media policy should set limits and expectations for people who come to the organization's web properties – web site, Facebook page, blog, YouTube channel, Twitter stream, etc. — so that, for example, a poster who violates the terms of service will be on notice that a hospital whose staff should be monitoring social media accounts at least daily may decide to take down a post (on a forum such as Facebook) if it does not comply with the policy.
An internal set of policies and procedures is also needed to address internal operational and policy issues for both official and unofficial channels. Staff need to be sensitive to the fact that they are, in effect, brand ambassadors on a 24/7 basis, and that if they mention their employer in their own posts on their personal Twitter accounts or Facebook pages, they should do so consistent with company policy – noting that “tweets are my own” or words to that effect. Some organizations may desire to insist on all employees' “radio silence” except for designated spokespersons.
The best policies are those that are developed through an inclusive process, rather than a top-down process, so that the employees most likely to be active on social media may offer input to the process sand also feel ownership of the final product in a way that will promote adherence.
No matter what the tenor of an individual organization’s policies may be, they must be implemented – they do no good up on the shelf. Staff must be trained on the policies, and are retrained as policies are updated on at least an annual basis. Adherence to the social media policies should be a condition of employment, just the same as adherence to any other employer policy, and the distribution of policy documents and training may be integrated with a broader employment process within your organization.
Sine this is a rapidly changing arena – and since social media comfort levels in an organization may change relatively rapidly – social media policies should be reviewed on a regular basis, at least annually.
The cat is out of the bag. Even if you wanted to avoid social media entirely, it is simply too late to attempt to do so. Even if your practice or institution does not have an active social media presence, it is likely that others are already discussing you on line. It is important to set up a social media monitoring program right away, if you do not already have one in place, so that you may respond in the real world to issues flagged in cyberspace.
You can become an active participant in health care social media and stay on the right side of the law, and these days it is becoming more and more imperative to use this toolset for marketing, patient communication and care management.
Be sure to check out Part I of this two-part series on health care social media, which lays out the range of issues and concerns and goes into greater detail on HIPAA issues.
The Harlow Group LLC
Health Care Law and Consulting