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Summer 2012


Social Media Policies: Do I Really Need One?

Neda Mirafzali, Esq.,
Clark Hill PLC, Birmingham, MI

Social media has transformed our culture, society and communication immensely over the past decade. Beginning with MySpace and, now, the omnipresent Facebook and Twitter, social media has not only transformed our interactions with one another, but also raises legal and ethical concerns for many professionals that use it. Anesthesiologists and pain management physicians are familiar with the heightened regulation associated with their practice, and the use of social media is no different.

Incorporating social media into an anesthesia group or pain practice’s marketing plan can be beneficial if utilized properly. However, the issues associated with social media use in the healthcare world, in general, have been shown to affect anesthesiologists and pain management physicians, specifically. Browsing some anesthesia group and pain management practices on popular social media sites as well as some online message boards revealed a number of issues that could implicate State and Federal laws as well as have a negative impact on the practice’s reputation in the community. Importantly, the issues raised extend beyond the practice’s own social media page, but also to personal profiles of nurses, interns, administrative personnel and other professionals working for the group or practice. Therefore, it is increasingly important for anesthesiologists and pain management physicians to be aware of the land mines in the social networking world and make it a priority to adopt effective social networking policies addressing the permissible and impermissible uses of social media sites.

Benefits of Social Media

Social networking sites include Facebook, Twitter, LinkedIn, Yelp, YouTube, Doximity, blogs, etc. and provide an additional avenue through which individuals may communicate, including physicians with physicians and physicians with patients. Proper use of social media sites can result in increased positive exposure for your group or practice, which can lead to a greater bottom line. Utilizing social media sites as another means to communicate hours of operation, contact information or linking back to a practice or group’s website allows the practice or group to be more visible in the realms in which patients and/or prospective patients spend a great deal of their time. It is also an opportunity for the patient and/or prospective patient to “meet” his or her physician before the appointment or surgery time. An anesthesia group or pain management practice’s social media page may include headshots of the members of the group or practice as well as a short biography introducing each of them.

Additionally, the group or the practice may utilize the space to self-promote by including speaking opportunities of its group or practice members, published works or awards or honors received. All of these assist in building credibility with a population that is not familiar with the who’s who of the anesthesia or pain management world. Additionally, social media may be utilized to disseminate general information to patients like frequently asked questions, posting blog entries, or posting podcasts.

Taking advantage of social media is similar to utilizing a billboard, but free of charge. Utilizing social media may not involve creating new content to develop a page or a profile, but merely reiterating information that is already found on the group or practice’s website. Similar to a billboard, the information is placed in a familiar arena that appears more accessible and gets more traffic.

Common Social Media Pitfalls

As mentioned above, social networks provide an avenue through which physicians may communicate with each other and their patients. In light of the ease with which this communication can be facilitated online, many forget, or are not aware of, the issues that are raised by such interactions. Common issues revealed in anesthesia groups or pain practices’ utilization of social media involve the posting of photographs, negative posts and the provision of medical advice on message boards.

Photographs

Placing photographs on social networking sites has the potential to raise patient privacy issues both on a State level as well as on a Federal level, under the Health Insurance Portability and Accountability Act (“HIPAA”). HIPAA applies to individually identifiable health information held or transmitted by a healthcare provider (a covered entity) in any form or media, including paper, oral, electronic, photographic, etc. Individually identifiable health information is information that relates to (a) the individual’s past, present or future physical or mental health condition; (b) the provision of healthcare to the individual; or (c) the past, present or future payment for the provision of healthcare to the individual. Therefore, posting photographs on a social media site implicate HIPAA if a patient’s individually identifiable health information is exposed. Examples of photographs that could raise HIPAA concerns include a photograph depicting a patient in a hospital bed outside of the operating room, or a photograph of a patient in the waiting room with a sign next to him or her that reads “pain management clinic.” Bear in mind, these photographs do not have to focus on the patient. If, for instance, a photograph is taken of all of the anesthesia residents, and a patient is in the background and the patient can be identified, an issue may arise.

Negative Comments

Another repeated issue encountered on anesthesia and pain group pages involved postings by patients who have had negative experiences at a group or with a particular physician or his/her staff. Allegations of unprofessionalism, breach of patient information and practicing below the standard of care were plastered on the pages of sites that many use when determining whether to receive services from a practice. Of course, disgruntled patients are inevitable in any service-oriented field, medicine included, and cannot be completely silenced; however, being aware of the capabilities of the social networking sites on which the practices and groups participate could limit the impact of such negative patient comments. Many of these sites have the functionality to prohibit posting on profiles or pages by unauthorized individuals and such functionality should, when appropriate, be utilized.

Message Boards

Message boards raise a myriad of issues, including whether a physician-patient relationship has formed or is implicated, patient privacy issues and ethical issues, to name a few.

The Physician-Patient Relationship

The Federation of State Medical Boards (the “FSMB”) issued its Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice (the “Model Policy”) in April of this year. Within the Model Policy, the FSMB emphasized the boundaries of the physician-patient relationship. Recognizing that “advanced technologies may facilitate the physician-patient relationship, they can also be a distracter which may lessen the quality of the interactions they have with patients.” Importantly, the FSMB touched on an issue that is not explored enough in most policies or commentaries on social networking relationships in the healthcare world: the difference between social networking interactions with current patients and the interactions with those who are not currently patients.

When a physician and a patient have formed a relationship, a physician owes that patient a duty (the extent of which is usually prescribed by state law) and a breach of that duty could result in a negligence action brought against the physician if the patient sustains damages (i.e., a medical malpractice claim). While most physicians are aware of the concept of negligence, it may not always be clear to where this duty extends. Is it limited to the confines of the hospital or the office? Does it extend to e-mail? Does it reach Facebook messages or message boards? Oftentimes it is difficult to ascertain the expectations and the full extent of a patient’s medical issue through electronic interactions and, therefore, a physician must always be mindful of the risk associated with such communications. When a physician and a patient do not yet have a formal treatment relationship formed, online interactions between the physician and patient often lead to questions about whether a relationship has formed and, if so, when? At which point does the physician have a duty? After one message? After five messages? Do the messages have to be private or can it be on a public message board? Every situation is extremely fact specific and each state has its own requirements for what constitutes a physician-patient relationship, but being aware of the fine line is important when communicating electronically with patients.

Patient Privacy

As mentioned above, HIPAA is implicated by the use of social media and social networking sites. This is no exception when it comes to message boards and online forums. Anesthesiologists and pain management physicians must always be aware of, and be responsible for, the safety and security of the sites in which they participate and must ensure any discussion of a patient’s information is done so within the confines of the applicable State privacy laws and HIPAA. HIPAA permits communication between physicians for the purpose of treatment without requiring authorization from the patient. However, such communication must be secure (and the responsibility to ensure security rests with the anesthesiologist or pain management physician) so as not to result in a breach. Accordingly, the FSMB takes the position that “[w]hile physicians may discuss their experiences in non-clinical settings, they should never provide any information that could be used to identify patients. Physicians should never mention patients’ room numbers, refer to them by code names, or post their pictures.”

Ethical Issues

Interactions on social networking sites may blur the line between patient and friend. Therefore, consistent with the FSMB’s position it would behoove anesthesiologists and pain management physicians to keep separate their personal and professional social networking accounts and content to ensure a clearer divide and role.

Drafting and Instituting a Social Media Policy

While much of this article has discussed many of the common risk areas associated with social media in the healthcare arena, it takes more than just avoiding these few mines to provide protection for a practice or group. Drafting and instituting an effective social media policy raises awareness of the issues at hand as well as provides boundaries within which members of an anesthesia group or pain practice may participate in such sites. Some points to bear in mind and consider when drafting and instituting the policy include the following:

  • Clarity—Drafting a policy that includes superfluous language and complex terms will be ineffective in conveying the importance of the policy and how the policy should be used. The policy should be drafted in such a way to ensure all individuals required to comply with it are capable of understanding and abiding by it.
  • Definitions—Define what social networks are, so that those who are expected to comply know the extent of the policy. Does the policy only apply to Facebook and Twitter or does it apply to blogs, message boards, YouTube and other sites? Knowing the extent of the reach of the policy will assist members of your group or practice to know when their responsibilities under the policy are triggered.
  • Purpose and Expectations—Why is the practice or group adopting this policy? What is the practice’s or group’s expectations for the policy? Clearly stating why this policy is being adopted and what the group hopes to achieve with it fosters a culture of compliance when everyone knows and participates in achieving a common goal.
  • Social Media Officer—Designate someone to be practice or the group’s social media officer. This person would be the only (or one of the only) person with the right to access the practice or the group’s social media accounts and make amendments to it. This person could also designate the profile’s privacy settings.
  • Coordination with HIPAA Policies—Ensure that the social media policy and the HIPAA policies complement one another. Because many of the issues that arise in the social media realm are patient privacy-related issues, ensuring that the two policies agree with one another and work together minimizes confusion among those expected to comply.
  • Acceptable Social Media Uses—List examples of acceptable social media uses. Social media can be a powerful marketing tool and a way to reach out to patient populations. Posting general information on what patients can do before anesthesia or how patients can deal with pain, including frequently asked questions, blogging, posting podcasts, articles, group photos, highlighting awards, etc. can be a tool to assist the practice in connecting with its patients and having an online presence.
  • Electronic Communication with Patients—The group or practice may find it beneficial to include in its policy the permissible parameters within which members of the group or practice may communicate with current or prospective patients electronically.
  • Discipline—Including a disciplinary provision under the policy informs those required to comply with the policy that the group or practice takes the issues raised under the social media policy seriously. Moreover, if an incident arises where discipline is warranted, uniformly disciplining members of the group or practice contributes to a culture of compliance.

Included in many social media policies is blanket prohibitions on employees from disparaging the employer on social media sites. Such policies allow the employers to terminate employees for such remarks. However, incorporating such provisions in social media policies should be carefully reviewed by qualified counsel to ensure they are enforceable and will not become a source of liability for the anesthesia group or pain practice.

The National Labor Relations Board (the “NLRB”) enforces the National Labor Relations Act (the “NLRA”) and has recently turned its attention to social media policies. Specifically, the NLRB has issued two reports regarding social media policies—one in August 2011 and one in January 2012—that provide guidance on the extent to which social media policies may govern employees “concerted activity,” which is protected under Section 7 of the NLRA. Briefly, Section 7 provides that employees have a right to engage in “concerted activities” for the purpose of collective bargaining or to improve working conditions and/or terms of employment. Employees may exercise this right in person or by utilizing technology or other media, such as social networking. Employers that terminate employees who are exercising their right to engage in concerted activity may find themselves becoming legally or financially liable. According to the NLRB’s recent reports, blanket policies that prohibit disparaging remarks about the employer have been deemed overbroad and terminations pursuant to such policies have been deemed improper.

Conclusion

As with compliance plans, in general, they must be adopted and updated as times change. Incorporating a social media policy into an anesthesia group or pain management practice’s larger compliance plan would benefit any group or practice as participation on such sites, both professionally and personally, is growing exponentially.


Neda Mirafzali, Esq. is an associate with Clark Hill, PLC in the firm’s Birmingham, MI office. Ms. Mirafzali practices in all areas of health care law, assisting clients with transactional and corporate matters; representing providers and suppliers in health care litigation matters; providing counsel regarding compliance and reimbursement matters; and representing providers and suppliers in third party payor audit appeals. She can be reached at (248) 988-5884 or at nmirafzali@clarkhill.com.