Social Media and Health Care Employers

The expanding nature of my professional licensing, administrative law practice requires  me to evaluate all forms of social media and my use of texting and email.  I affirmatively chose to not engage in group texts, emails, Facebook, Snapchat, and/or Instagram.  My emails are legally oriented and do not espouse personal opinions of the prosecutors, witnesses, opposing counsel, or any judge before whom I practice.  My blogs, this blog, is where I espouse my legal opinion as to current social conduct and legal norms as they intersect with the legal issues my professional clients, aspiring or otherwise, confront.

However, many clients are confronted with their employer’s social media policies that potentially in fringe on their legal and privacy rights.  Employment based disciplinary policies relating to social media are independent of, and incorporated throughout, health care employment manuals.  These employment contract policies, while vague, are extremely strict and prohibitive in nature as they pertain to group texts and emails, not just Facebook, Instagram, or Snapshat, involving medical students, interns, and residents.

Disciplinary protocols for violating vague social media policies are becoming a huge area of concern.  Recently I was contacted by a third year medical student of a prominent local residency program.  He was suspended for twenty nine days for violating his hospital’s email and texting policy.  The policy, derived from a combined reading of the hospital’s sexual harassment/disruptive behavior guidelines and Social Media Policy, is startling.  Content restrictions, whether on personal or work smart phones, limit any communication associating the hospital, any activity during work hours, and must conform to the hospital’s over arching goals against “intimidation and disruptive behavior.”   What is that?

Surprisingly, the policy/rules inform all residents there is NO expectation of privacy to any blog, email, text (group or otherwise), or other social media post. Violations are based upon conduct that may “tarnish the reputation or brand of the residency program”.  Any communication must not suggest, in any manner, a relationship to or on behalf of the hospital. The policy also states if any form of social media is created in the future and not mentioned herein, these rules apply.
Obviously sexual harassment of any sort warrants discipline.  But discipline predicated upon “private” conversations on a multi-person group chat (twenty) of the appropriateness of a new chief resident, not conducted in any denigrating fashion, is startling.   Conditioning employment on NO EXPECTATION OF PRIVACY and no DISRUPTIVE BEHAVIOR (again — what is this?) is extreme.
Hospital administrators and residency program managers are running scarred trying to calm the herd of cats under their managerial umbrella.  Hard working, pent up smart medical students are now not allowed to have any opinion about any aspect of their medical training program, let alone voice that opinion in a private email to anyone.  Such will be interpreted as disruptive for which there is no privacy right.
Similar to the sixties, these institutions are now enforcing a no-voice of dissent policy. Targeted to any potential anonymous blogger, micro chatter, texter, or group chatter, dissension, opinion, and personality are being searched out and disciplined.  The right to be enrolled in these programs does not include complete and unfettered right of free speech.  Upon enrollment, residents, employees, interns, and licensed medical and nurse practitioners are being told to stop talking, criticizing, commenting, discussing anything about their employer.
Medical residents, staff doctors, union or non-union nursing staff, admitted practitioners, and just about any other licensee practicing their medical profession in the orbit of the local hospital must be aware of these entities’ manuals, practices, and social media policies and how they are being applied.  Unilateral enforcement of these contract provisions (meaning the doctor or resident can’t due the hospital for talking bad about them) limits negotiating strength, employment security, or admission rights to that hospital.
Keep you opinions to yourself.  Do not include ANY inappropriate comment (whatever that is) about any person, thing, policy, or practice in group text or email, facebook, instagram, Snapchat.  The people and departments enforcing the entity’s new media policies are not from this decade or century.  Their interpretation of “what is fair and proper” is not the same as the young resident, intern, or doctor.

Criminal Contact and the Licensee’s Mandatory Reporting Reesponsibility

Every day brings new licensing reporting requirements that affect each licensee’s renewal responsibilities.  I reported in October 2015 of the Pennsylvania Nursing Board’s new mandatory reporting of just an arrest, not a conviction, for any misdemeanor or felony.  The questions that have arisen since then range from how long will the renewal time period take to what disciplinary action can I expect.

Every Board is different with regard to how long it will respond to either renew a license or advise of the potential consequence. Each board website contains general admonishments on what documents to attached and the variety of reasons for their dilatory response. One consistent response is to always blame the applicant, licensee for improper or unclear documentation.

 Statements such as “If you have previous criminal conviction(s) and/or discipline on another health license it will take longer to review your application. ” None the less, every licensee can assist in the enforcement review by submitting the following so that a letter does not have to be mailed out requesting these items.

  • letter of explanation
  • certified arrest and court records or out of state discipline documents
  • letters of reference
  • current work performance evaluation

Many state board websites include definitions that help explain the reporting requirements.  New Jersey’s states :

Conviction” includes a plea of no contest and any conviction that has been set aside or deferred pursuant to Sections 1000 or 1203.4 of the Penal Code, including infractions, misdemeanor, and felonies. It is not necessary to report a conviction for an infraction with a fine of less than $1,000 unless the infraction involved alcohol or controlled substances. However, any convictions in which a plea of no contest was entered and any convictions that were subsequently set aside pursuant or deferred pursuant to Sections 1000 or 1203.4 of the Penal Code must be disclosed. “License” includes permits, registrations, and certificates. “Discipline” includes, but is not limited to, suspension, revocation, voluntary surrender, probation, or any other restriction.

The following information must be provided for each license discipline or conviction sustained:

  1. A detailed written explanation describing the circumstances and events that led to your arrest(s) and conviction(s), including: date and place of arrest; arresting agency; court where case was heard; and sentencing information, including fines, courses, counseling, restitution, probation, parole, community service, and jail or prison time.
  2. Documents relating to the arrest, such as: police report, arrest report, booking report, complaint, citation or ticket.
  3. Documents from the court, such as: Notice of Charges, Complaint, or Indictment; Plea Agreement, Sentencing Order, Probation Order, or Judgment; Dismissal, Probation Release, or Court Discharge.
  4. Any related mitigating evidence or evidence of rehabilitation that you want to provide.

In Pennsylvania, a Board-regulated practitioner who engages in unprofessional or immoral conduct is subject to disciplinary action under section 41 of the act (63 P. S. § 422.41). Unprofessional conduct includes, but is not limited to, the following relevant provision:

(19) Violating a provision of this chapter, Chapter 17 or Chapter 18 (relating to State Board of Medicine—medical doctors; or State Board of Medicine—practitioners other than medical doctors) fixing a standard of professional conduct.

(b) Immoral conduct includes, but is not limited to, the following:

(1) Misrepresentation or concealment of a material fact in obtaining a license or a certificate issued by the Board or a reinstatement thereof.

(2) The commission of an act involving moral turpitude, dishonesty or corruption when the act directly or indirectly affects the health, welfare or safety of citizens of this Commonwealth. If the act constitutes a crime, conviction thereof in a criminal proceeding is not a condition precedent to disciplinary action.

Disciplinary process is also available when a physician is convicted of a felony or being convicted of a misdemeanor relating to a health profession or receiving probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, a Federal court or a court of any other state, territory or country.

Moral turpitude” is not defined in the Pennsylvania’s Medical Practices Act but “is capable of being defined as evidenced by court decisions which determine that certain offenses are crimes involving moral turpitude.” “[M]oral turpitude” as “anything done knowingly contrary to justice, [h]onesty, or good morals.” A “[d]etermination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime. The Pennsylvania Supreme Court routinely defines moral turpitude to mean anything done knowingly contrary to justice, honesty, or good morals. The terms “good moral character” and the “lack of moral turpitude” are used interchangeably to define each other in many cases. ‘Fraud’ certainly has acquired a peculiar and appropriate meaning in the law. Black’s Law Dictionary 594 (5th ed. 1979) defines fraud as any kind of artifice employed by one person to deceive another.

The provision that addresses reporting criminal conduct on a license application or renewal is more specific as to which offenses must be reported. Section 16.16 contains medical doctors’ legal reporting responsibilities. There, reporting of disciplinary actions, criminal dispositions and other licenses, certificates or authorizations to practice for new applicants states:

(a) An applicant for a license, certificate or registration issued by the Board shall apprise the Board of any of the following:

(3) A finding or verdict of guilt, an admission of guilt, a plea of nolo contendere, probation without verdict, a disposition in lieu of trial or an accelerated rehabilitative disposition with respect to a felony offense or a misdemeanor offense relating to a health care practice or profession.

(b) Portions of applications provided by the Board will be reserved to assist applicants in meeting the reporting responsibilities enumerated in subsection (a).

(c) The reporting responsibilities enumerated in subsection (a) continue after the Board issues a license, certificate or registration. If, after the Board has issued a license, certificate or registration, any of the events in subsection (a) occur, the person shall report that matter to the Board in writing within 30 days after its occurrence.

Some Board’s have regulations that assist them determining which violations are substantially related to the applicant’s license. In California, Title 16, California Code of Regulations, section 1444, states a conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety or welfare.

 Please call me to discuss you license renewal issues or criminal conduct reporting responsibility.

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