February 07, 2011

Social Media Can Create Legal Issues for Health Care Providers Says Ike Willett

Social media sites can be a great way for health care professionals to network with colleagues and share health information, South Source reported in its story, "Health Care Professionals and Social Networking." However, they should be aware of the potential risks of using social media and especially use caution when connecting with patients online, the story said.

"Numerous legal issues can arise when health care providers use social media," Ike Willett of Baker & Daniels told South Source, a publication of South University. "These include issues related to patient privacy, fraud and abuse, tax-exempt status, and physician licensing."

Willett also explained that friending patients on social media sites may pose risks under Health Insurance Portability and Accountability Act (HIPAA) and state privacy laws. The fact that an individual is a patient of a health care provider falls within the types of health information that these laws are designed to protect.

"The simple act of accepting a friend request likely would not constitute an adequate consent to the disclosure of patient information under HIPAA and other state privacy laws," Willett told South Source. "HIPAA, for instance, specifies information that consent to disclosure of health information needs to contain."

As a rule, health care providers should not use social media to share any health information that could be linked to an individual patient, such as names, pictures and physical descriptions, without the patient's consent, the story reported. Health care organizations entering the social network need to make sure they have social media policies that specify what uses by their employees are permitted and prohibited, according to the South Source story.

"Employees should be careful because their organization could be tied to what they say on social media," Willett said. Also, health care providers who want to establish a Facebook page, Twitter feed, YouTube channel or other account need to think about whether they want to use social media exclusively to push content out to the public or to provide an interactive forum where patients can share comments and experiences, Willet explained.

"Interactive social media sites are usually more compelling to users, but health care providers who choose this route need to have a plan for addressing negative comments," Willett told South Source.

In order to draw clear lines drawn between interactions as a health care provider and those as a friend, some advise keeping separate personal and professional social networking accounts, the story reported. When carefully handled, social media can help strengthen the relationship between the patient and their health care provider.

"Using social media to share articles on health care topics, podcasts conducted by medical staff members, videos providing information on particular health care service lines and patient success stories with the public can be an effective way to present a personally relatable view of a health care organization," Willett said in the story.

Willett offered details to South Source on the legal issues that can arise when health care providers use social media:

  • Patient Privacy - HIPAA and state privacy laws limit health care providers' ability to interact with patients through social media. HIPAA and state privacy laws prohibit health care providers from disclosing patient information without proper patient authorization. Information protected by HIPAA includes anything that can be used to identify a patient, including pictures. A health care provider discloses patient information through social media without patient authorization in violation of HIPAA and/or state privacy laws can be subject in fines and other penalties.
  • Fraud and Abuse - Federal and state laws aimed at preventing fraud and abuse in health care prohibit health care providers from giving third parties anything of value as an inducement for the third party to generate referrals to the health care provider for services which may be reimbursable by Medicare or Medicaid. Paying third parties to use social media to talk up a health care provider's services may present risks under laws aimed at preventing fraud and abuse, such as the federal Medicare and the Medicaid Patient Protection Act of 1987 ("Antikickback Statute").
  • Tax-Exempt Status - Health care providers that are exempt from taxation under Section 501(c)(3) of the Internal Revenue Code are prohibited from intervening in political campaigns and from seeking to influence legislation as a substantial part of their activities. This restriction may extend to advertising on or sponsoring social media sites that support a political candidate or particular pieces of legislation.
  • Physician Licensing - Health care professionals need to be careful about providing medical advice to patients using social media. If a patient receiving the medical advice from a doctor through social media is located in a state in which the doctor is not licensed, the doctor giving the advice risks liability under state licensing laws.
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