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The HHS’ Office for Civil Rights (OCR) has issued guidance to healthcare providers to remind them that the HIPAA Privacy Rule does not allow the media and film crews to access healthcare facilities where patients’ protected health information is accessible unless written authorization has been obtained from the patients concerned in advance. A public health emergency does not change the requirements of the HIPAA Privacy Rule, which remains in effect in emergency situations.
OCR has made this clear in the past with enforcement actions against Boston Medical Center, Brigham and Women’s Hospital, and Massachusetts General Hospital in 2018 after it was discovered they had given film crews access to their facilities without first obtaining authorization from patients. They were fined a total of $999,000 for the HIPAA violations.
OCR has issued Notices of Enforcement Discretion during the coronavirus pandemic and will not be imposing sanctions and financial penalties on HIPAA-covered entities for certain violations of HIPAA Rules. Penalties can and will be imposed on covered entities for violations of HIPAA Rules not covered by the Notices of Enforcement Discretion, such as unauthorized disclosures to the media.
In the latest guidance, OCR explains that protected health information includes written, electronic, oral, and other visual and audio forms of health information which must be protected against unauthorized access and disclosure. In all cases, HIPAA authorizations must be obtained from patients in advance, before the film crews are granted access to the facilities. It is not permissible for film crews to simply mask the identities of patients in video footage, such as blurring faces before broadcast.
The HIPAA Privacy Rule does not prohibit film crews from entering healthcare facilities. Provided HIPAA authorizations have been obtained in advance from all patients who are in or will be in the areas accessed by the film crews, filming is permitted. However, in such situations, reasonable safeguards must still be put in place to protect against unauthorized disclosures of PHI, including measures such as privacy screens on computer monitors to prevent electronic PHI from being viewed. Screens must also be used to ensure patients who have not signed HIPAA authorizations are not filmed.
“The last thing hospital patients need to worry about during the COVID-19 crisis is a film crew walking around their bed shooting ‘B-roll,’” said Roger Severino, OCR Director. “Hospitals and health care providers must get authorization from patients before giving the media access to their medical information; obscuring faces after the fact just doesn’t cut it.”