HIPAA may require tougher rules on videotaping in ED
No more videotaping emergency, then getting OK
The same arrangements that have worked well for allowing videotaping in the ED might have to be significantly modified in light of the Health Insurance Portability and Accountability Act (HIPAA).
The privacy rule will not allow any videotaping by a news crew in the ED before the patient gives permission, no matter what the circumstances.
Jim Scheulen, PA, administrator for the emergency medicine department at Johns Hopkins Hospital in Baltimore, says HIPAA led him to change how the hospital allows camera crews in the ED, which it has done on a smaller scale since the groundbreaking Hopkins 24/7 series that aired on ABC in 2000.
"Whenever we shoot now, we make very sure that unless there is specific permission up front, we don’t shoot anything that would identify the patient or the fact that a patient was there," he says. "We’re not going to show any electronic boards or anything showing the patient information."
Stop bending the rules
An expert in HIPAA interpretation agrees with that strategy and says the privacy rule means some of the arrangements previously used at Hopkins and other institutions won’t fly anymore. In particular, you can’t bend the rules in emergency situations, says Matthew Rosenblum, chief operations officer for privacy, quality management, and regulatory affairs at CPI Directions, health care consultants in New York City.
That method was seen as a reasonable compromise for some EDs, including Hopkins, because it was impossible to ask for permission first in those cases. Not anymore, Rosenblum says.
"If I’m letting a cameraman from a media company stand in my ED and take pictures of my patients [without permission] for purposes unrelated to treatment, payment, or health care operations, I’m in breach of HIPAA," he says.
Authorization must come before videotaping
HIPAA does not preclude videotaping in the ED if it is for treatment or security purposes, but any photography by an outside agent, such as a television crew, is sharply limited, Rosenblum says.
HIPAA requires that either the footage not show patients or protected patient information, or the patient must authorize the videotaping beforehand, he explains.
The previous method in which the hospital obtained permission afterward would now constitute a HIPAA violation, Rosenblum says. Even if you ask permission afterward and destroy the videotape if the patient does not authorize its use, you have violated HIPAA merely by allowing the outsider to videotape that person.
"The hospital has already created the breach by allowing somebody to use that person’s information for a nontreatment purpose," he adds.
HIPAA does not allow you to even gather certain information without authorization, even if you don’t end up doing anything with it. Suppose you wanted to use patient information for marketing purposes and the first step is extracting that information from a computer data set.
Under HIPAA, the simple act of extracting that information with the intention of using it for marketing, without authorization from the patient, is a breach, Rosenblum says.
Even if you haven’t yet used the information in a marketing letter and never do, simply extracting the information without authorization is a breach automatically, he says.
Does this mean you can’t allow cameras in your ED without violating HIPAA? Not necessarily, but they may not be able to get the same dramatic shots of trauma patients being wheeled into the ED. Rosenblum offers one possible alternative: You could provide footage from video equipment in your ED for treatment or security purposes, such as a fixed camera that covers your intake area and can be monitored by hospital security.
Because its primary purpose is security, that camera automatically can tape patients in the ED without prior authorization. Then you can release that tape for use by the media if the patient authorizes such use.
HIPAA is not violated because the original purpose of the videotaping was acceptable, and the information was not disseminated until the patient gave authorization.
Sources
For more information on videotaping and the Health Insurance Portability and Accountability Act, contact:
- Jim Scheulen, PA, Administrator, Johns Hopkins Department of Emergency Medicine, 600 N. Wolfe St., Marburg B-186, Baltimore MD 21287-2080. Telephone: (410) 955-8708.
- Matthew Rosenblum, Chief Operations Officer for Privacy, CPI Directions, 10 W. 15th St., Suite 1922, New York, NY 10011. Telephone: (212) 675-6367. E-mail: [email protected]. Web site: www.cpidirections.com.
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