Does your practice have an effective and up-to-date compliance plan?
The provisions regarding Social Media must be looked at closely in light of recently issued guidance from the National Labor Relations Board (NLRB).
As background, what health care providers and their staff are working to avoid, first and foremost, is dissemination of confidential patient information. More particularly, protected health information (PHI), which includes any one of eighteen categories of one’s health, treatment, or payment that individually identifies the person.
To be individually identifiable, there must be a reasonable basis to believe the information can be used to identify the individual. This includes:
- Date of birth;
- Telephone numbers;
- Fax numbers;
- Email addresses;
- Social Security Numbers;
- Medical records;
- Account numbers;
- VIN numbers and license plates;
- Web addresses;
- IP addresses;
- Fingerprints and voice prints;
- Photographic images;
- Any other unique identifying numbers, characteristics or codes.
Why, then, is there a slippery slope when it comes to Social Media policies?
In summary, the NLRB tells us as practitioner-employers, we must not infringe upon or chill our employee’s right to discuss the terms and conditions of employment, whether inside or outside of the practice (including families, friends, and third parties).
Social Media policies, therefore, cannot be overly broad or unduly restrictive. They must contain specific examples of the restricted use of Social Media in the context of the practice. For example, a practitioner may want to make it clear in her practice policies and procedures that “Social Media usage may never include any reference to a patient of the practice” and provide numerous real-life limiting examples (using some of the 18 factors listed above) of how Social Media can be damaging to the practice.
For the practitioner, keep in mind under the National Labor Relations Act, it is an unfair labor practice act to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7…of the NLRA.”
All the reason why a clear and effective compliance plan is crucial to your practice. If ever in doubt as to the effectiveness your policies and procedures may have on your employees and to an outside party, including the NLRB, seek qualified advice and counsel from a health lawyer.