1 Twitter This: Social Media & Hospitals Jenna Mooney, Partner Ingrid Brydolf, Partner

2 Overview  Social media can be useful to providers: What is it? How is it being used?  Providers have legal obligations.  Providers should be proactive with maintaining control over content and establishing institutional policies on appropriate use.

3 What is Social Networking?  Broad range of Internet activities  Texting  Chat rooms  s  Blogging  Videos  Easily accessible  Work computers  Home computers  Mobile smartphones and other devices  Inherent risks  Immediacy  Global reach  Searchable  “ is Forever”  Expectation of a dialogue

4 Online Social Networking Exploding  Facebook  >400 million users worldwide  2009 revenue: >$550 million  8 billion minutes spent on Facebook each day  Increasing corporate marketing use  Twitter  “Tweets” – max. of 140 characters  Celebrity usage – Lance Armstrong, Brittany Spears  Corporate use growing exponentially  Over 55 million users / month and growing  Largest user demographic: 35-49

5 Online Social Networking Exploding  LinkedIn  Facebook for professionals  Over 50 million registered users  MySpace  Similar to Facebook  Less than half the users at over 100 million  YouTube  Online videos  Blogs  The original social networking tool  Non-provider hosted sites (external sites)  Different legal obligations may arise when a provider hosts blogs and other media on its own servers

6 What’s in it for Health Care Providers?  April 2010: Hospitals have established:  250 YouTube channels  300 Facebook pages  400 Twitter accounts  Social Media is useful to Providers:  Launch innovative advertising/marketing campaigns  Provide patients & families with information  Remain competitive with other providers that have established social media presences.  Use in hiring and firing staff?  Possible discrimination claims?

7 Legal Obligations: Confidentiality  Providers are ‘covered entities’ under HIPAA & state law  Affirmative legal obligation to safeguard protected patient information  Patient names, addresses, addresses  Creating social media content does not implicate privacy laws as long as providers do not post patient information without authorization

8 Legal Obligations: Practice of Medicine  Interactions with patients  Malpractice risk  Disclaimers (character limits with some media)  Licensure issues  Privacy  Boundary issues

9 Legal Obligations: Disclaimers  Given informal nature of social media, providers can remind online visitors that posts are public:  “This is a public site. Please do not post personal information about yourself or others, including medical information.”  Note: outside scope of this presentation, but with institution-hosted media (e.g., blogs), a more complete terms & conditions notice may be appropriate.

10 What’s in it for Health Care Providers? Can you say 11,000,000 hits?

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20 Administrative Controls  Wide range of administrative controls available to providers that establish social media presence  Facebook:  Content posting restricted to page administrators only (public cannot post content)  Closed group – persons must formally request to “join” group before having posting access

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23 Employee (Mis-)Use of Social Networks  For personal purposes, at work  For personal purposes, impacting your business  Bad-mouthing the company  Trade secrets theft  Harassment  At work, for business purposes  Monitoring comments on hospital services  Answering consumer questions  Promoting services / education  Research

24 Why Health Care Providers Should Care  61% of employees say that even if employers are monitoring their social networking activities, they won’t alter behavior  74% of employees believe it is easy to damage a brand’s reputation via social networking sites  53% of employees say “social networking pages are none of an employer’s business.” *Per Deloitte’s 2009 Ethics & Workplace Survey

25 Why Health Care Providers Should Care  Only 17% of companies have programs in place to monitor and mitigate reputational risks  Only 22% of employers have formal social networking policies *Per Deloitte’s 2009 Ethics & Workplace Survey

26 Employer Injury  Injury to corporate reputation  Employee "venting" transmitted instantly to ever- growing audience  Possible liability for employee postings  Defamation  Copyright infringement  False advertising claims  Discrimination/harassment  Medical information (HIPAA/GINA)

27 Employer Liability  Electronic discovery issues  A new kind of “electronically stored information” (ESI)  Social media data is typically not stored on employer’s network or system  National Labor Relations Act issues  Can be “protected, concerted activity”  Blogging about unfair employer policies  Applies to all employees, not just unionized workers

28 What Should Employers Do?  Develop a policy now – don’t wait for the crisis  Convene working group to draft:  HR  Legal  IT  Marketing  PR/Corporate Communications  Employee users

29 Social Media Policy Considerations  What is your culture?  Separate or integrated policy?  Allow or block access to social media websites?  Distinguish between professional use and personal use?  Extent to which provider equipment and networks can be used for social media?  What are your needs?  Use of social networking to generate business?  Use of social networking in hiring / firing process?

30 Social Media Policy Considerations  Duty to bargain with unions regarding policy?  Cross-reference in other policies?  Anti-harassment and nondiscrimination  HIPAA/GINA confidentiality  Codes of ethics  Legal review of proposed employee terminations for social networking activity

31 Social Media Policy  Providers should:  Adopt a Social Media Policy for employees and staff  Educate staff about the contents of the Policy  Enforce policy through imposing consequences for violations

32 Social Media Policy: Adopt  Policy should:  Set rules for what information staff can post and say online  Remind and educate staff about obligations – patient privacy, protecting proprietary institutional information  Clarify appropriate relationships between staff, patients and the public

33 Social Media Policy: Educate & Enforce  Educate:  Any policy is only as good as the institutional awareness of it  Know the policy; educate staff at hire and push periodic updates  Enforce:  Follow through with penalties for violations

34 Social Media Policy: Provisions & Examples  Policy statement: “Employees can use social media for business-related purposes subject to restrictions in this Policy to ensure compliance with legal requirements and institutional policies.”  Scope of policy – separate provisions for institution-hosted and externally hosted sites.

35 Social Media Policy: Provisions & Examples  Rules for use:  Maintain patient privacy  Respect patients and other staff – no libelous or defamatory speech  Safeguard proprietary institutional information  Comply with copyright, trademark and other law  Do not communicate on “behalf” of institution  No patient-specific medical advice

36 Questions?