• HIPAA Meets Hollywood

  • A $2.2 million settlement between The Department of Health and Human Services, Office for Civil Rights (OCR) the New York Presbyterian Hospital (NYP) was announced on April 21st. The OCR sighted NYP for failure to protect two patients’ protected health information (PHI) from a film crew and staff during a filming of “NY Med”, an ABC television series without first obtaining authorization from the patients. The OCR stated that this was a “egregious disclosure” of two patients and found that NYP allowed the ABC crew to film someone who was dying and the other patient was in significant distress, even after a medical professional urged the crew to stop.

    Further, it was discovered that NYP failed to safeguard PHI and allowed the ABC film crew virtually complete access to its health care facility. 

    “This case sends an important message that OCR will not permit covered entities to compromise their patients’ privacy by allowing news or television crews to film the patients without their authorization,” said Jocelyn Samuels, OCR’s Director.  

    The American Medical Association drafted Opinion 5.045 - Filming Patients in Health Care Settings. * The opinion was originally adopted in June of 2001 and updated in June of 2006. 

    The opinion begins by stating; “The use of any medium to film, videotape, or otherwise record (hereafter film) patient interactions with health care providers requires the utmost respect for the privacy and confidentiality of the patient. These guidelines specifically address filming with the intent of broadcast for public viewing.

    Below are a few of the guidelines mentioned in the Opinion: 

    • Filming patients without consent is a violation of the patient’s privacy. Consent is therefore an ethical requirement for both initial filming and subsequent broadcast for public viewing. Because filming cannot benefit a patient medically and may cause harm, filming should be done only if the patient being filmed can explicitly consent
    • Patients should have the right to have filming stopped upon request at any time and the film crew removed from the area. Also, persons involved in the direct medical care of the patient who feel that the filming may jeopardize patient care should request that the film crew be removed from the patient care area.
    • The initial granting of consent does not preclude the patient from withdrawing consent at a later time. After filming has occurred, patients who have been filmed should have the opportunity to rescind their consent up until a reasonable time period before broadcast for public viewing.
    • Due to the potential conflict of interest, informed consent should be obtained by a disinterested third party, and not a member of the film crew or production team.
    • Information obtained in the course of filming medical encounters between patients and physicians is confidential. Persons who are not members of the health care team, but who may be present for filming purposes, must demonstrate that they understand the confidential nature of the information and are committed to respecting it.
    • Physicians retain their responsibility to maintain professional standards whenever medical or surgical encounters are filmed for public broadcast.

    All covered entities have the responsibility to stay current and informed. Unfortunately, NYP allow the sequence of events to occur by violating both their “ethical requirements” and their patients basic right of protection and privacy.  Not to mention writing a check for $2.2 million dollars!

    Judith is the CEO of JAL Consult and holds the accreditation of Certified HIPAA Professional (CHP). As a consultant, Judith provides guidance for organizations within the HIPAA framework. Judith develops and implements reasonable and appropriate compliance programs, develops employee training programs and participates in compliance presentation and speaking engagements. To read more about the world of compliance subscribed to JAL’s insightful newsletter at www.jalconsultantsaz.com OR follow JAL on Twitter @ judithconsult