Outsmarting Smart Technology: Legal Ramifications in the Assisted Living Setting
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1 Outsmarting Smart Technology: Legal Ramifications in the Assisted Living Setting F L O R I D A A S S I S T E D L I V I N G A S S O C I AT I O N A N N U A L C O N F E R E N C E Presented by: John W. Heilman Janice L. Merrill
2 ELECTRONIC MEDICAL RECORDS
3 Basic EMR Concepts What are the benefits? HITECH Act and electronic medical records Goal To improve care and reduce costs by eliminating errors Outsmarting Smart Technology 3
4 Basic EMR Concepts Impact Chart is not what it used to be can be any combination of text, graphics or other information in digital form, created, maintained, modified, retrieved or distributed via computer s (open or deleted) Voic s Data files Word processing Calendars Wireless text messaging Growing digital capacity is leading to creation of digital landfills Outsmarting Smart Technology 4
5 EMR Issues Improper training / use "Garbage in, garbage out" Users must know how to use system or there will be errors "Power users" Avoid over-reliance on one user to answer questions their absence could create a void that is hard to replace Disgruntled workers Usually associated with mischief, including identity theft Outsmarting Smart Technology 5
6 EMR Issues "Login" is the new signature Login will reveal the timing of entries Stress avoidance of entries under another person's login to ensure the record is accurate Changes to the medical record No uniform method to make changes because each system is different Outsmarting Smart Technology 6
7 EMR Issues Metadata Embedded, unseen data tracking every keystroke, deletion, change (who, what, when, where) Metadata may be relevant when date, time, entry or source of document is in dispute E-Discovery services / vendors are available to assist parties in identifying metadata issues Delete does not mean "good-bye" Alterations and "after the fact" entries are 100% clear System failures What is the backup? Use handwritten notes? How do you integrate handwritten notes once the system is restored? Outsmarting Smart Technology 7
8 EMR Issues EMR systems not designed with litigation in mind Difficult / expensive to print hard copy of information on the screen In some instances, what is produced on paper looks nothing like what is on screen Evolving EMR systems make it difficult to produce "snapshot" of record as it appeared in the past May need technical support to assist in production of record and depositions to show what record looked like in the past Depositions will you need to utilize computerized record as opposed to hard copy? Client may not be comfortable with hard copy record and may need electronic record to provide complete response If you utilize the electronic record, you will be educating your adversary on system capability and its limitations Outsmarting Smart Technology 8
9 How EMR Systems May Impact Claims Corporate Negligence Potential claims Failure to train staff to use system Failure to enforce policies and procedures Unsafe / unreliable EMR system Alteration or destruction of information Outsmarting Smart Technology 9
10 Being Prepared for E-Discovery Litigation hold letter Duty to locate date and preserve data before a legal dispute arises Meet early with IT staff to become familiar with document retention policies and computing infrastructure, including obtaining the EMR system vendor information Recognize that , Facebook postings, tweets, blog entries, web site, etc., may be discoverable Outsmarting Smart Technology 10
11 Potential EMR Discovery Requests Policies and procedures regarding EMR corrections Precautions / data entry if EMR system "goes down" Backup and restoration of EMR data Safeguards to prevent security breaches EMR documentation standards Login and passwords Accounting of data points entry Who has access to system? Vendor information, including contracts, manuals, system updates and product information Outsmarting Smart Technology 11
12 Potential EMR Discovery Requests Where and how the archived EMR is stored? Identity of IT team Training confirmation Documentation on system maintenance List of health care providers with access to system and dates associated with access If EMRs are printed, how are the hard copies retained? Outsmarting Smart Technology 12
13 Additional Issues With EMR and ESI Software vendor as potential third party Sales contract issues / negotiated points What can they do to help with electronically stored information (ESI) Do "meaningful use" functions impact ESI handling HIPAA Non-waiver protective order Security inspection issues Cost issues of vendor Possible need of expert assistance with EMR and ESI Search terms when accessing documents Outsmarting Smart Technology 13
14 VIDEO SURVEILLANCE
15 Cameras monitoring exterior of facility Cameras in common areas Cameras in residents rooms Resident privacy rights Interference with private business
16 SOCIAL MEDIA
17 Social Media New role in discovery and litigation In the workplace Managing a crisis Outsmarting Smart Technology 17
18 Top 10 Social Networking Websites & Forums (as of January 2013) Outsmarting Smart Technology 18
19 FacebookReaches One Billion Users Outsmarting Smart Technology 19
20 Statistics More than 1 billion active users 552 million daily active users 58% of users return daily Average user has 130 friends 25% of users don't bother with any kind of privacy control One out of every seven minutes spent online is on Facebook 250 million photos added daily Accessed by 7,000 different types of devices every day More than 1 million websites have integrated with Facebook in various ways 50% of smartphones connect to Facebook every hour of every day Outsmarting Smart Technology 20
21 Social Media Usage Adults Outsmarting Smart Technology 21
22 Outsmarting Smart Technology 22
23 Outsmarting Smart Technology 23
24 A St. Louis OB-GYN is sparking controversy after she posted negative comments about one of her patients on Facebook, according to various reports. According to the TheBump.com, a popular website for moms-to-be, Dr. Amy Dunbar of Mercy Medical Center posted the following on Facebook: "So I have a patient who has chosen to either no-show or be late (sometimes hours) for all of her prenatal visits, ultrasounds, and NSTs. She is now three hours late for her induction. May I show up late for her delivery?" Critics around the blogosphere are saying Dunbar violated the patient's privacy even though she never mentions the patient by name. Outsmarting Smart Technology 24
25 Client Considerations Plaintiff or Defendant Shut down all social media sites for the duration of the litigation Increase privacy settings Do not discuss any aspect of the litigation or its participants Refrain from inappropriate language or socially questionable activities Give your counsel your log in information so your accounts can be monitored Outsmarting Smart Technology 25
26 Employee's Use of Social Media NLRB's governance of an employee's right to engage in "concerted activity" Whom does the NLRB govern? Statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level Health care and child care institutions hospitals, medical and dental offices, social services organizations, child care centers and residential care centers with a gross annual volume of at least $250,000 are under NLRB jurisdiction; for nursing homes and visiting nurses associations, the minimum is $100,000 Outsmarting Smart Technology 26
27 Law they enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union If employees are fired, suspended or otherwise penalized for taking part in protected group activity, NLRB will fight to restore what was unlawfully taken away These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court Outsmarting Smart Technology 27
28 Section 7 Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. Outsmarting Smart Technology 28
29 Is the Activity Concerted? Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others Outsmarting Smart Technology 29
30 Does It Seek to Benefit Other Employees? Will the improvements sought whether in pay, hours, safety, workload or other terms of employment benefit more than just the employee taking action? Or is the action more along the lines of a personal gripe, which is not protected? Outsmarting Smart Technology 30
31 Is It Carried Out In A Way That Causes It To Lose Protection? Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product or revealing trade secrets, may cause concerted activity to lose its protection Outsmarting Smart Technology 31
32 Restricting Social Media While at Work Can employer restrict employee's ability to discuss work issues on social media while at work? If employer allows employees access to social media while at work, then it's not likely that discussions about working conditions can be prevented If, however, employer prohibits use of social media at work, then yes, discussions about working conditions on social media while at work can be deemed violative of employer policies Outsmarting Smart Technology 32
33 Social Media Crisis Management Plan Designate who will monitor If you are online, you must monitor online Facebook Ning LinkedIn, MySpace Twitter, Flickr YouTube Google+ Blogs Tip: Google alerts has free tools Outsmarting Smart Technology 33
34 Social Media Crisis Management Plan Designate who will respond Who will physically put up a response Who will be the person "speaking" Does the responder have access to passwords and social media accounts Outsmarting Smart Technology 34
35 Social Media Crisis Management Plan Responder must have technical directions for adding an urgent message to your web site home page Urgent message feature on your site should be accessible from any remote Internet location Responder should have the ability to review the rest of the content and photos and remove in case it is no longer appropriate in light of the crisis event GUARD THIS PROCEDURE VERY CAREFULLY AND DO NOT ALLOW UNAUTHORIZED PERSONS TO HAVE ACCESS TO IT Outsmarting Smart Technology 35
36 Social Media Crisis Management Plan Spokesperson should be: Comfortable in front of television and reporters Skilled in identifying key points, knowledgeable about organization and crisis Able to establish credibility and sincerity Able to answer questions Outsmarting Smart Technology 36
37 Social Media Crisis Management Plan Designate a prepared response Do you have a 140 character tweet to reply to social media wildfire? Do you have approved messaging? Do you have an account or microsite or Frequently Asked Questions page that can be updated quickly? Do you have the ability to: Get a video from CEO on YouTube Embed a message or video on your Facebook page Tweet at any time Outsmarting Smart Technology 37
38 Social Media Crisis Management Plan Tone of response Thank you for pointing out "problem" Polite, personal, do not escalate Invite to contact you offline Acknowledge the issue and its resolution Thank them for their feedback People complain less if they feel like they were heard Explain action you are taking and take it Check back with the customer Key is honesty, transparency Not the mistake, but how it is handled Outsmarting Smart Technology 38
39 What to Include in a Crisis Statement Four R's Regret shock and sadness Primary concern is for those affected Reform intention to work closely with investigating authorities Promise to provide additional information when it becomes available Restitution what can be done What are you doing? (expenses for medical or other tragedy-related costs, onsite care, tickets to return) Reassure statement about your commitment to safety Mission statement Outsmarting Smart Technology 39
40 Social Media Crisis Management Plan Designate what should be removed Removal of posts may cause worse public backlash Removal of lewd comments against employees or customers can be removed as public backlash would be unlikely Deleting negative comments rather than addressing them (or faking positive) will only escalate attention to the negative Poor taste in advertising should be removed if public backlash and properly addressed Outsmarting Smart Technology 40
41 10 Point Overview Social Media Crisis Management 1. Have a plan 2. Have designated look out 3. Have a designated responder or response team 4. Have a designated ready response to situations 5. Determine what to remove 6. Determine if you need a response 7. Determine where to respond 8. Have a policy 9. Keep up on the law 10. Implement fairly Outsmarting Smart Technology 41
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43 Discoverable Retention policy Automatic deletion Preservation after incident
44 BRING YOUR OWN DEVICE "BYOD"
45 Company Owned/Provided Devices Employer's monitoring Notice to employee INSERT MDWCG LOG ON WARNING
46 BYOD Mandate a security policy for all devices Mandatory passwords Define the relative ownership of information on the device Right to wipe company device in event device and information is compromised
47 BYOD Define an acceptable use for the device Questionable applications Develop an exit strategy Procedures for when an employee separates from the company
48 THANK YOU John W. Heilman 201 E. Kennedy Boulevard, Suite 1100 Tampa, FL Janice L. Merrill Landmark Center One 315 E. Robinson Street, Suite 550 Orlando, FL W W W. M A R S H A L L D E N N E H E Y. C O M
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