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Social Media Networking
The following is a de-identified composite of calls made to the ACA Risk Management Helpline, operated by Anne Marie “Nancy” Wheeler, J.D., an attorney licensed in Maryland and the District of Columbia. This information is presented for educational purposes. For specific legal advice, please consult your own local attorney.
Question: Is it ethically and legally appropriate for me, as a counselor, to engage in social media networking through sites like Facebook and LinkedIn?
Answer: The answer is that it depends on how you’re using the sites and what you’re doing to protect client confidentiality and avoid boundary violations. Those are currently the biggest areas of concern in using social media. The ACA Code of Ethics (2005) is in the process of being revised, as are many state licensure laws, so all counselors are advised to be aware of upcoming changes in ethics and law regarding social media and other uses of technology.
If you or your employees intentionally or inadvertently disclose confidential client information on social networking sites, that could pose an ethics violation and lead to legal problems under HIPAA, HITECH and state law. The HITECHi regulations supplement HIPAA and require “covered entities” (including most counselors in private practice)ii and “business associates” of covered entities to take certain action in the event of a breach of protected health information. If you are supervising counselors or students, you should also take care to ensure they are following your practice’s HIPAA policies and procedures. If a breach occurred, the HITECH regulations would require you to perform a risk assessment and take action, such as formal notice to clients adversely affected by the breach and notice to the U.S. Department of Health and Human Services.
One lasting problem with social networking sites is that information posted cannot be removed. Additionally, if information is reposted by a person to another page, you may lose control of who sees potentially confidential information. A counselor who engages in social media must learn to use privacy settings appropriately.
Boundary violations regarding use of social media have led to complaints against mental health professionals in very recent years. Clients may feel rejected if they know a counselor has agreed to be “friends” with other clients but not with them. Counselors should consider addressing their use (or non-use) of social media through their informed consent process and documents. It is very important to separate one’s personal use of social media from one’s professional use.
Despite the many caveats applicable to use of social media, appropriate professional use may prove beneficial to clients and counselors under controlled circumstances in order to provide resources to clients or the public. It may provide connections to other professionals in the community that may well serve the public. However, you must fully consider the myriad of privacy and boundary issues before “friending,” “tweeting,” or “liking.”
i For more information about breach notification under HITECH, see U.S. Department of Health and Human Services, HITECH Breach Notification Interim Final Rule. Retrieved October 27, 2011 at http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/breachnotificationifr.html.
ii To determine if you are a “covered entity” for purposes of HIPAA, see Centers for Medicare and Medicaid Services, Covered Entity Charts. Retrieved October 27, 2011at https://www.cms.gov/HIPAAGenInfo/Downloads/CoveredEntitycharts.pdf.
Printed with permission from the American Counseling Association (counseling.org)