Social Media is invaluable for all businesses but in the health care business it comes with many challenges. The primary reason is that patient confidentiality rules, generally called HIPAA, can prevent or seriously limit a response to a complaint or review. Also, patient solicitation rules prohibit certain types of patient outreach for some providers.
What can be infuriating for a health care provider to learn is that even though a former patient wants to criticize it on social media, by responding at all a health care business may be violating the law. Simply put, a health care provider cannot disclose what is called protected health information (PHI). PHI is anything that identifies a patient as a patient or any patient care records. This includes identifying information such as names and dates of birth but also any care provided. So when a doctor gets a complaint, even a vicious one calling into question their competency, if the response discloses PHI, even to explain why the criticism is wrong, the doctor has violated the rules. Even when a patient wants to sing your praises, a health care business has to get specific permission, a waiver, from the patient to publish it or even respond to a patient post.
Also, a huge problem for health care businesses is employees using social media and disclosing patient information. Something as innocuous as a selfie at the office with a patient in the background can be trouble. Worse still, if an employee was treated badly by a patient and the employee wants to vent to friends on Facebook, it is a prohibited disclosure if it contains any identifying information. Even internal communications pose hurdles. Health care providers can’t text patient information on open platforms.
Outreach and marketing are other areas that require careful consideration. A number of professional boards have rules that control what types of advertisements are permissible, direct solicitations of patients, and what may be contained in an advertisement; which at its root social media often is. Also, kickback laws prohibit making many types of offers to attract patients.
Health care businesses probably have the most traps to avoid when using social media and need to be very careful.
Written by: Bernard M. Cassidy, Esq.
Bernard M. Cassidy, Esq. is an attorney specializing in health law, health law regulatory and white-collar criminal defense.