Develop a practice social media policy to avoid violations

As employers in medicine, ophthalmologists must walk a legal tightrope. Here’s where to start.

By Jill S. Garabedian, Esq., and Caroline Patterson, Esq.

With the prevalence of social media more widespread than ever, ophthalmologists have the opportunity to harness its power and use it to promote their practices, connect with patients and share information. While many benefits to using social media exist, some risks can also be involved, especially in medicine. The particular privacy and other regulatory concerns imposed on health care make social media a venue fraught with danger.

However, a practice need not wait until an employee violates a privacy regulation before taking action. Preparing your practice to safely navigate the treacherous waters of social media requires a stated employee policy concerning these venues that accounts for any possibility. Here, we review potential pitfalls associated with social media, some unexpected ways employees may violate regulations and provide a social media strategy policy outline.

A photo like this might seem like a good shot for the practice Facebook page, but look again. Are patient names visable on the chart in the background?

Patient Interactions

Social media generally refers to methods of online communication through which users can share pictures, messages, videos and information via social networking sites, photo and image sharing sites, blogs and micro-blogging platforms such as Twitter and Tumblr.

Ophthalmology practices can use these platforms to connect with patients outside the exam room. Using them, a practice can provide patients pertinent medical information, engage in research, converse with colleagues and advertise their services. However, the use of social media does raise concerns related to Health Insurance Portability and Accountability Act (HIPAA), professional responsibility and, of course, potential malpractice liability.

Ophthalmologists should avoid giving specific medical advice via the Internet. Never disclose specific patient information in a social media setting, keep personal social media use separate from any professional use and be vigilant about checking privacy settings on social media sites. By taking these precautions a practice can limit liability and take advantage of the upsides to using social media.

Practices and organizations across the country post to social media for a number of purposes including offering coupons and staying in touch with the community. “We tweet about a multitude of things [such as] success of an event, promoting an upcoming event, thanking staffers manning the phones of a telethon, thanking community health partners, informing about an upcoming news story, helpful ‘news you can use’ for the general public, and signs and symptoms of spring allergies or ocular melanoma,” says Cathy Moss, media relations manager at Wills Eye Hospital in Philadelphia.

BE AWARE OF EMPLOYEE USAGE

Reason to be concerned

In addition to patient-related concerns, ophthalmologists must also be cognizant of the impact social media have on their role as employers. As employers, ophthalmologists can assume that most, if not all, of their current and potential employees have a social media presence.

That inevitable social media use, whether on or off the job, may create legal headaches for an employer physician. Employees may be spending work hours logging into their accounts or, worse yet, violating patient privacy laws. They may even sully the practice’s good name without even realizing it. To protect themselves, practices must understand the accompanying legal concerns.

Assure productivity

The most identifiable concern is excessive use of social media and the affect that can have on productivity. In ophthalmology practices, nurses, technicians and physicians may not have the opportunity to spend as much time on social media throughout the day as an employee who mainly works in front of a computer; however, most employees now have the ability to access the Internet and social media from anywhere through mobile devices.

Practices can, of course, limit the ability of their employees to access certain websites on work computers, but it is challenging, to say the least, to limit employees’ use on their own devices.

Impact of outside-office use

Along with productivity issues, employees’ social media use provides another opportunity for harassment and discrimination issues in the workplace. As if office gossip and harassment weren’t already a problem for some practices, the Internet has opened up a new forum for office bullies.

Even when employees use social media on their own time, the comments they make can have an affect on the workplace and other employees. For example, many employees may connect with one another via social media sites. If one employee uses that social media connection to harass, threaten or bully another employee, to the extent the practice becomes aware of that conduct, it can subject the practice to liability for failure to take steps to remedy it.

KNOW YOUR VIOLATIONS

Good intentions and the FTC

Ophthalmologists may not realize that endorsement of the practice by employees online may be a violation of the Federal Trade Commission (FTC) Act, which puts in place certain rules to prevent unfair methods of competition and unfair or deceptive acts or practices in, or affecting, commerce. The FTC Act requires that endorsements “reflect the honest opinions, findings, beliefs, or experience of the endorser.”

Additionally, an endorsement “may not convey any express or implied representation that would be deceptive if made directly by the advertiser.” The increase in social media use has brought about more opportunity for employees to endorse their employer — for example, by posting a positive review on a review site or writing a positive blog post about the practice on a private blog. Although an endorsement is a positive thing, ophthalmologists must be aware of what their employees post online and address appropriate guidelines, such as those we discuss later, to avoid liability based upon those actions.

HIPPA violations may be unintentional

Medical practices face unique issues since their employees deal with highly protected health information every day. The HIPAA privacy rule protects patient health information and limits the use and disclosure of that information while the security rule provides standards and guidelines for covered entities to ensure that patients’ protected health information is held securely and confidentially.

Employees need to be aware that even a seemingly innocent tweet about a patient or picture taken in the office can be a breach of HIPAA and cause major problems for the practice. For example, it may seem innocent to post a picture of a group of nurses posing together in the office, but if they are standing in front of a surgical schedule, to the extent that schedule contained protected health information, that simple post would amount to a HIPAA violation.

While patients are free to post about their own medical issues, physicians and staff should be extra careful when responding to posts from patients on Facebook pages or comments on blog posts to make sure that they are not disclosing information considered to be protected.

CREATING A POLICY

Do not overreach

When crafting a social media policy, keep in mind that a policy limiting employees’ ability to discuss anything work-related on social media could be problematic under the NLRA. The NLRA confirms that employees have a right to discuss certain terms of their employment such as wages and work conditions. Generally, an overly broad social media policy that infringes or has the potential to infringe on these rights is unacceptable under the NLRA.

Put policy into practice

While it is important to have a policy in place, it is only as good as the paper on which it is written. A policy must be consistently enforced in order for it to be effective. That means practices must act when they become aware of any violations.

Practices can monitor employees to an extent, but must balance the practice’s right to property, to manage its public image, to thwart potentially damaging behavior and to ensure compliance with policies with the employees’ right to privacy. When monitoring employee use of social media, ophthalmologists should make employees aware that anything they do on practice computers may be monitored.

Whether an ophthalmology practice plans on being tech savvy with a strong social media presence or is simply interested in monitoring its employees’ usage, becoming knowledgeable and strategic about social media is no longer a choice. It is essential to all ophthalmologists who want to thrive and grow in the digital age to craft, implement and consistently enforce social media polices within their practices to plan for and prevent mishaps. OM

About the Authors

Jill S. Garabedian, Esq., (top) and Caroline Patterson, Esq., are associates at Wade, Goldstein, Landau & Abruzzo, PC, Berwyn, Pa. Ms. Garabedian concentrates in physician transactional and employment matters, and serves as a teaching fellow at Drexel University School of Law, Philadelphia. Ms. Patterson specializes in counseling small- to mid-sized companies and medical practices on employment, corporate and business law. Both spoke at the 2013 AAOE meeting about social media use.