On August 5, 2016, the Centers for Medicare and Medicaid Services (CMS) published a Survey and Certification Memorandum (Notice) urging State health departments to enforce violations by nursing homes in posting patient images on social media. This development was interesting given that the Office for Civil Rights (OCR), the enforcer of the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules, presumably should already be cracking down on any such violations of resident rights as a violation of HIPAA. According to Modern Healthcare, increased instances of nursing home staff inappropriately posting resident pictures on social media may have sparked this pronouncement by CMS.
Specifically, CMS will more strictly enforce, through State agencies, corrective actions to ensure that employee postings of residents in a degrading manner do not occur in the nursing home setting. Interestingly, the Notice does not discuss nursing homes reporting such employee conduct to OCR, but does indicate that employees should report such postings on social media of residents as abuse “to at least one law enforcement agency.” Continue reading “Government Cracks Down On Nursing Home Use of Social Media”
1. Since most text messaging is not a secure form of communication, it raises HIPAA concerns if any protected health information is included in the text message. There is the possibility of a data breach in the transmission of the text message, as well as in the event of a lost or stolen phone.
2. Relevant information about a patient may be omitted from the patient’s medical chart if it is communicated via text message. Text messages are difficult to print or archive, resulting in the information being lost or deleted. This can have adverse consequences in the patient’s care due failure to communicate important information regarding the patient to everyone who needs the information.
3. Important evidence may be lost, resulting in adverse consequences in the event of a lawsuit. Any time a lawsuit is anticipated, all relevant evidence must be preserved, including text messages. However, since the messages reside on individual employees’ phones, they may be omitted from the document preservation efforts, or accidentally (or intentionally) deleted by the employee. Such loss of evidence could result in the court’s imposition of an “adverse inference,” meaning that the jury must determine that lost evidence would have been adverse to the health care facility (even if that is not true).
The safest course is to ban text messaging in a health care setting. Health care facilities which allow the use of text messaging should implement policies and procedures to ensure that they avoid these problems.
Mobile health application developers, manufacturers, investors, healthcare providers and others received welcome news late last month when the U.S. Food and Drug Administration published its long-awaited final guidance on mobile medical applications under the Federal Food, Drug, and Cosmetic Act. It is vital for any app developer to understand whether the guidance applies to their product from the initial design stage. Those who are already marketing software and apps that involve healthcare should also review the guidance with care to try to determine how FDA’s new regime impacts both business plans and continuing operations.
Continue reading “Mobile Medical Apps Guidance”
Duane Morris, in conjunction with the Wharton Health Care Management Alumni Association and Locust Walk Partners, presented a networking reception and panel discussion of the key legal and business issues for mHealth app developers and entrepreneurs on Wednesday, June 26, 2013, at the University of Pennsylvania’s Bodek Lounge. Panelists discussed topics including healthcare industry trends and mHealth growth; investment and business trends; legal and regulatory issues; and healthcare IT and reimbursement issues.
Click here to see pictures of the event.