Facebook, Twitter, Instagram, Snapchat, YouTube, blogs, websites, Google+, LinkedIn. What do all of these social media outlets have in common? Each of these avenues can get physicians in trouble under the Health Insurance Portability and Accountability Act (HIPAA), state privacy laws and state medical laws, to name a few of the applicable laws. It seems that, all too often, news outlets are reporting data breaches generated in the medical community, many of which arise out of physicians’ use of social media, and many of which could have been avoided.
Physicians should be aware of the intersection of social media use—for both personal and professional use—and HIPAA and state laws. Even an inadvertent, seemingly innocuous disclosure of a patient’s protected health information (PHI) through social media can be problematic.
PHI is defined under HIPAA, in part, as health information that (i) is created or received by a physician, (ii) relates to the health or condition of an individual, (iii) identifies the individual (or with respect to which there is a reasonable basis to believe the information can be used to identify the individual), and (iv) is transmitted by or maintained in electronic media, or transmitted or maintained in another form or medium. Under HIPAA, a physician may use and disclose PHI for treatment, payment or healthcare operations. Generally, using or disclosing PHI through social media does not qualify as treatment, payment or healthcare operations. If a physician were to use or disclose a patient’s PHI without permission, this would violate HIPAA (and likely state law).
To use or disclose a patient’s PHI without obtaining the patient’s consent, a physician must de-identify the information and ensure there is no reasonable basis to believe the information can be used to identify the patient. One option under HIPAA is to retain an expert to determine “the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is the subject of the information.” Alternatively (and more often the case), a physician seeking to use or disclose patient PHI can remove the following identifiers from the PHI:
- Geographic information;
- Dates (e.g., birth date, admission date, discharge date, date of death);
- Telephone numbers;
- Fax numbers;
- E-mail addresses;
- Social Security numbers;
- Medical record numbers;
- Health plan beneficiary numbers;
- Account numbers;
- Certificate/license numbers;
- Vehicle identifiers and serial numbers, including license plate numbers;
- Device identifiers and serial numbers;
- IP address numbers;
- Biometric identifiers (e.g., finger and voice prints);
- Full-face photographic images and any comparable images; and
- Other unique identifying numbers, characteristics or codes.
Identifier No. 18 is the most difficult to comply with in light of the significant amount of personal information available on the Internet, particularly through Google and other search engines. Inputting even a small amount of information into a search engine will generate relevant “hits” that make it increasingly more difficult to comply with the de-identification standards under HIPAA. Even if Identifier Nos. 1–17 are carefully removed, the broadness of Identifier No. 18 can turn a seemingly harmless post on social media into a patient privacy violation.