Federal Regulators Expected To Step Up Scrutiny Of Hospitals' Social Media Efforts, Warns LeClairRyan Attorney

WASHINGTON, July 25, 2012 /PRNewswire/ -- As more hospitals use social media to connect with the public, they can expect closer scrutiny by federal regulators, writes LeClairRyan attorney Michael F. Ruggio in a CorporateComplianceInsights.com column posted on July 13. He warns of growing concern that hospital employees and other representatives will inadvertently violate regulations—particularly ones introduced as part of the Health Insurance Portability and Accountability Act—as they strive to interact with the broader community via the likes of Pinterest, Facebook, Twitter and Google+.

"One of the clearest examples of the stepped up regulatory interest concerns the pharmaceutical industry, which is also subject to stiff oversight," writes Ruggio, who leads the national law firm's Healthcare Industry Team. "At the end of last year, the FDA published its first draft guidance, (http://www.fda.gov/downloads/drugs/guidancecomplianceregulatoryinformation/guidances/ucm285145.pdf) on the topic of social media and off-label claims about regulated pharmaceuticals."

The 13-page draft was aimed at helping companies get a handle on the FDA's position, but it was narrowly focused and may have prompted more confusion, he notes. For example, the agency lists several examples of solicited and unsolicited, public and non-public, requests, along with its view of some of the appropriate responses, but neglects to address many other issues.

In the column ("Bowing to the inevitable: Regulators are bound to scrutinize hospital use of social media tools"), Ruggio notes that even though specific social media guidelines haven't been issued by the government, "hospitals can nonetheless work with counsel to make sure their approaches to social networking comply with the spirit and letter of applicable regulations to the greatest possible extent. This is a far-better approach than a head-in-the-sand approach that proclaims 'We don't have guidelines yet, so let's just ignore this and hope for the best.'"

Some institutions, like Massachusetts General Hospital, have already moved to meet this challenge by publishing detailed social media usage guidelines for both employees and the public as part of its overall compliance efforts. Ruggio advises that one important component of an effective strategy involves ensuring that social media policies are communicated to anyone with access to a company social media account, even if they only have the ability to send an email to a consumer regarding a healthcare-related question.

"The basic point is to be conservative, knowing that social media regulations are all but inevitable," Ruggio says. "If you would not say something in a four-color brochure, do not say it in any online forum or email, keeping in mind that even a 'private' email can be posted on Facebook or other public forums. Also, keep track of the government's enforcement actions and policy statements even if they pertain to other industries, because they might offer clues about the broader concept of social media regulation."

The rise of social media has created lots of new "friends" for the hospital sector, but unwelcome or even potentially litigious guests are also part of the social media scene, he warns. "Unfortunately, you can't 'unfriend' a class-action lawsuit or 'block' a federal agency's enforcement action with the click of a mouse," Ruggio says. "The time to speak with counsel, and to review and update your policies is now, before something unfortunate happens."

About LeClairRyan

As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses.  With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation.  For more information about LeClairRyan, visit www.leclairryan.com.

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