The Department of Health and Human Services has issued guidance confirming that the public health emergency brought on by the COVID-19 pandemic does not alter the restrictions that HIPAA’s Privacy Rule places on hospitals, nursing homes, and other health care providers with regard to the disclosures they may make to the media. The guidance breaks no new ground, but adds color to how HIPAA applies in the current crisis.
The guidance warns how protected health information (PHI) may appear in a variety of forms, including oral statements, identification bracelets, bulletin board postings, and patient monitoring devices. The presence of a patient in a particular ward is PHI. If media outlets seek access to any areas of health care facilities where patients and their PHI will be accessible, the facilities should first obtain written HIPAA authorization from each of the affected patients. It will not be sufficient for a film or audio crew to blur the image or alter the voice of a patient after the fact. Even if prior authorization is obtained, health care providers should take reasonable precautions to prevent the disclosure of PHI that has not been authorized.
The guidance specifically states that HIPAA does not prohibit media access altogether, but points out the need for health care providers to exercise control over the process before it begins. A hospital should, for example, carefully consider any location where it will permit a media crew to film: will patients and patient information be visible, can advance authorization reasonably be obtained from patients, is the space subject to unpredictable events? An emergency room, for example, will not typically provide an appropriate space for filming.
News crews are not subject to HIPAA’s privacy rules, nor are patients or family members whom they might interview. However, media representatives should be aware of the limits that HIPAA imposes on providers that need to comply with HIPAA and coordinate with health care administrators whenever seeking access to patients and patient areas.
Ballard Spahr LLP’s attorneys in its HIPAA Compliance Team and its Media Practice Group can assist health care providers and media organizations in navigating their way through HIPAA’s requirements in both telling and covering stories that emerge from the COVID-19 outbreak.