Ever since the enactment of The Health Insurance Portability and Accountability Act (HIPAA) of 1996 confusion has reined in our profession about exactly who and what is covered in the law, and what we can and cannot report on and take pictures of. I think allot of what we hear is fact but allot of the interpretation of the legislation is based on “folk law” handed down since the passing of the bill.
I recently received an e-mail from a fellow PIO and newsman asking for assistance in mucking through the separation of fact from fiction.
“…My problem lately is scene access to some outlying areas. I’m getting
the same story from them, “Got to worry about those HIPAA laws! Can’t
let you anywhere close to the scene”. I’ve searched and can’t find any
specific info on how the HIPAA laws affect emergency services and more
specifically, firefighters. Any ideas?
I’ve never been one to ask probing questions about injuries or specifics
at an accident or fire..my TV station is very firm about making sure we
don’t intrude and we also don’t show victim’s bodies, even if they are
covered by a sheet. We simply do not do that. I don’t ask for details on
injuries or deaths…all of that info comes from the state police. All
we ask for, and usually from the police on scene, is number of victims,
and which hospital? So it’s not like I’m asking for their credit card
numbers or something!
So do you have any info on how HIPAA is handled in the field? Or
suggestions on resources? Any help would be appreciated.”
Your suggestions, wisdom, knowledge and input would be deeply appreciated!
http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html
Is a wrap up for covered entities, which is to say, those who encounter a person who’s information is protected.
If a person is not a covered entity, meaning not involved in care, there is no protection under HIPAA.
An example is the news media capturing patient care. That is not protected under HIPAA, neither is a private person photographing patient care.
Only those covered entities taking part in patient care/billing are under the HIPAA laws and can not share the information.
So first responders dont have to worry about covering up a victims face? Some have asked me to not shot video anytime a victim is on scene…or is visible in any way either dead OR alive. Thats BS. Ive recently had one department tell me they had to protect the victims identity by refusing access even tho I knew that the pt. had already been transported from the scene.
I have seen nothing from HIPAA that indicates it is required that first responders prevent anyone from taking pictures in a public place. While I am not a lawyer I think you will find that the First Amendment trumps HIPAA.
My experience is that every organization has its own understanding of HIPAA and seems to treat it differently. Few seem to be willing to separate fact from fiction and come up with policies that make sense and are consistent.
When it comes to cameras some in fire and EMS try to use HIPAA the way some in law enforcement claim national security after 9-11. The result is an erosion of the freedoms that make this country great.
Read this article from the Washington Post two days ago. http://www.washingtonpost.com/wp-dyn/content/article/2010/07/25/AR2010072502795.html?sub=AR
Four or five years ago I did two similar stories on TV where we used young interns to pose as tourists. They wore wireless microphones and had disposable cameras. You should have heard the BS and the threats they got from police officers and various government security about shooting pictures of government and military buildings while standing in public space.
When challenged each agency from the Department of Homeland Security to the Pentagon acknowledged their people were wrong and admitted there is nothing illegal about such picture taking. One of the very few places where you could walk right up to the fence and shoot without being hassled was The White House. But at the Department of Transportation they told us we couldn’t shoot because the Secretary of Transportation was in the building.
Understand HIPAA for what it is and have rules that cover its requirements. But lets stop taking things further because of ignorance or someone’s anti-media agenda.
Dave Statter
dave@statter911.com
One thing to note is that this post focuses exclusively on HIPAA; there may be other departmental policies, laws or ordinances which regulate the disclosure of patients’ identities (although, to be honest, I can’t think of any in my immediate area.)
In my opinion, the best way to deal with this sort of thing would be to network and communicate with media and departmental officials prior to this sort of thing happening; unfortunately, this isn’t always possible (or, for whatever reason, welcomed.)
My two cents.
Ive had excellent relations with local FDs up until about 6 months ago. Maybe a bunch of the departments got new officers or something. But even if a department has regulations, rules or sops that inhibit a photog from doing his/her job, thats a prescription for a law suit and Im about at that point. Make an example of a department or two and make the rest sit up and take notice. In short, its like these small town and rural VFD officers and especially their traffic guys seem to be on a power trip. This most recent incident, the chief tried to laugh it off as just a newbie fire policeguy who didnt know what the rules are…well the chief issued the order over the air, and Ive go it on tape cause I record all county traffic to use for info on news stories. Ive got much better com gear than most small cities have, and little escapes my ears! I guess education is whats needed here. Remind them that just because they were issued a portable radio, doesnt give them superpowers.