In the healthcare world, today’s patients demand greater flexibility, convenience and cost transparency when they access health care. This has changed the face of communications for the healthcare industry. Patients are increasingly turning to online sources and social media for information-related health issues. In fact, a recent global survey revealed that 29% of health industry respondents believe that social media for external communication, collaboration, and commerce is currently of the highest strategic importance to their organization.
However, as the healthcare industry seeks to drive down costs while accommodating more than $20 million new users of healthcare via the Affordable Care Act, there are 6 legal risks can arise when healthcare providers use social media and other new forms of communications:
- Patient Privacy – HIPAA and state privacy laws limit healthcare providers’ ability to interact with patients through social media and other forms of communications. HIPAA and state privacy laws prohibit healthcare 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 healthcare provider discloses patient information without patient authorization in violation of HIPAA and/or state privacy laws can be subject in fines and other penalties.
- Litigation & eDiscovery – Healthcare providers and insurers are vulnerable to lawsuits from a wide variety of sources, from consumers, regulatory bodies and even employees, all of which translate into high cost and risks. One of the challenges of litigation is the growing complexities of litigation preparedness, especially around information management.
- Under the Federal Rules of Civil Procedure, the parties involved in a lawsuit are required to make good faith efforts to produce all information, written or electronic, requested by the opposing party. Failure to do so would result in expensive fines, the loss of the lawsuit and negative publicity
- Fraud and Abuse – Federal and state laws aimed at preventing fraud and abuse in health care prohibit healthcare providers from giving third parties anything of value as an inducement for the third party to generate referrals to the healthcare provider for services which may be reimbursable by Medicare or Medicaid. Paying third parties to use social media to talk up a healthcare 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 – Healthcare 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 or other public sites that support a political candidate or particular pieces of legislation.
- Physician Licensing – Healthcare 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.
Interested in learning more? Download this free white paper today: “Compliance Beyond Email: Navigating the Complexities within Healthcare”.
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