David Harlow presents HIPAA and Your Social Media Strategy - a Webinar with Jamie Verkamp at (e)Merge http://emergewithus.com

1. HIPAA and Other Legal Issues and
Your Health Care
Social Media Strategy
HIPAA and Your Social Media
Strategy
Webinar with (e)Merge
November 18, 2009
David Harlow JD MPH
THE HARLOW GROUP LLC
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2. “On the
Internet,
nobody
knows you’re
a dog.”
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3. Social media popularity: Google Trends
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global warming sex facebook

4. Why Social Media?
• All the cool kids are doing it
• Willie Sutton logic: it’s where the money is
Remember: It’s one arrow in the quiver
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Authentic
interaction
Genuine
Engagement
Trust Influence

5. Uses of Social Media
• Preliminary questions:
▫ What are your strategic goals?
▫ How can social media help you achieve them?
▫ What resources will you devote to this effort?
▫ How will you structure this effort?
• Involving the lawyers early on can help avoid
costly retrenchment and/or errors later
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7. Elements of Common-Law
Legal Liability
• A duty that one party has to another party
• A breach of that duty
• Harm to the second party
• Causal link between the breach of the duty and
the harm
• Example: A physician has a duty to provide
services according to a standard of care; if she
provides lesser services and her patient is
injured as a result, that’s malpractice
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8. Liability under regulatory schemes
. . . like HIPAA, just for example
• If you violate the letter of the law (or regulation),
and disclose or use information in ways you
should not . . . you are liable to the federal
government
▫ Fines
▫ No third party liability
• Under state law there may be liability to patients
as well for violating confidentiality
▫ And remember, patient claims that go to court will
be heard by a jury
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9. Common Law & Regulatory Liability:
Based on Definitions of Relationships
Therefore . . .
• Must clearly define the relationship between
health care providers and social media users
▫ Terms of Service
▫ Policies and Procedures
Must be tailored to your organization
• Must stay within the bounds of that relationship
▫ Shalts
▫ Shalt Nots
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10. Keys to avoiding liability
• Patient consent where relevant
▫ Notice of Privacy Practices (HIPAA NPP) should
address social media
 How it is used
 Degree of privacy that may be expected
 Express notice not to use for emergencies; statement
that channel is not monitored 24/7
 NPP and internal P&P should be consistent
• Remember: the fact that a patient-provider
relationship exists is itself PHI
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11. Keys to avoiding liability (cont’d)
• Good judgment
▫ Do not practice medicine on line . . .
 Unless the patient has given informed consent in advance
(and even with consent, clinical interactions should not
be in a public forum)
 Emergency exceptions?
 Similar to what we would do “IRL”
▫ Do not try to establish clinician-patient relationship
online . . .
 Unless through a secure, private portal
▫ Clinician-patient communication should end up in
EHR
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12. Who will be judging me?
• Patients and potential patients
• Referral sources
• Regulatory bodies
• A jury of your peers?
▫ Think about what policies and procedures you
want to have on the books and fully implemented
before you end up on trial in front of a jury made
up entirely of twentysomething Facebook users
who expect everyone to live their lives online 24/7
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13. Sample situations
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• Disclosure of a child’s HIV status by a parent
• Posting PHI in a hospital-hosted community
• Live-tweeted surgery going south
• Negative comments on hospital website
▫ Poor service
▫ Malpractice
• Responding to a patient’s tweet
▫ Positive: “I’m cancer free one year later”
▫ Negative: “I’ve been waiting in the ED for hours”
• Emergency communication on a Facebook page
• Notice of a GSW via Twitter to an MD (mandated
reporter)

14. It’s a journey, not a destination
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• Policies and procedures will be revisited and
revised
▫ As you gain experience
▫ As your comfort level increases
▫ As technologies and their uses evolve

15. Resources
• HCSM legal roundtable bit.ly/HCSMlegal
• HCSM legal tweetchat bit.ly/HCSMlegalchat
• #HCSM homepage healthsocmed.com
• Found In Cache (hospital SM) ebennett.org/hsnl
• SMUG social-media-university-global.org
• HealthBlawg social media posts
j.mp/HealthBlawgSoMe
• HealthBlawg on Twitter twitter.com/healthblawg
You should follow me on Twitter . . .
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16. Contact
David Harlow JD MPH
THE HARLOW GROUP LLC
harlowgroup.net
healthblawg.typepad.com
twitter.com/healthblawg
david@harlowgroup.net
617.965.9732
for contact info in an sms, txt dharlow to 50500
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