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On HIPAA And Photography

Earlier this week I mentioned a video on STATter 911 that showed an EMT swipe a camera from a local activist in the name of the all powerful 1996 Health Insurance Portability and Acountability Act (HIPAA).

Now I’ll be honest, while the video is slightly disturbing I can understand why it happened. The activist was being obnoxious, rude, beligerant, and basically baiting the EMTs and Police Officers. Unfortunately this particular EMT, identified as Captain Ronald Leslie, took the bait and swallowed it whole like a wide mouthed bass. What I find to be more outrageous, and a blaring indicator to the actual problem, were the comments left on the original post.

So it begs to question how could a Captain be so blatantly wrong in his assertion that HIPAA prevents photographers/videographers from taking images on a public street and how can so many providers think that he was actually in the right?

The answer is that we provide an extremely poor education in not only HIPAA but also laws regarding photography. I’ve had my fair share of people tell me the same thing, including supervisors, chiefs and directors. I thought that we had done better in this area of education, but it appears we haven’t.

Who HIPAA Actually Applies To

To violate HIPAA it must actually apply to you. Some covered entities are:

  • Doctors
  • Nurses
  • Clinics
  • Hospitals
  • Dentists
  • Chiropractors

…and since we bill health insurance for reimbursement…

  • EMS Agencies
  • EMTs
  • Paramedics

Anyone notice something missing? Yes, Firefighters don’t necessarily make the list. However if you are certified as a healthcare provider or belong to a fire based EMS system then you are included as well. For firefighters who are members of a fire department who does not respond to medical emergencies, are not healthcare providers and therefore do not bill for compensation, HIPAA does not apply.

As for everyone else, such as the media and John Q. Public with a Flip UltraHD Camcorder or a cellphone camera, since HIPAA does not cover them then the rules governing patient privacy do not apply to them. Therefore they cannot “violate” them.

3 Of The 10 Legal Commandments of Photography

Laws will vary from state to state and city to city, but there are some very basic guidelines that are universal thanks to the US Constitution and its Amendments. An excellent guideline to these rights are The Ten Legal Commandments Of Photography. In the case above there are three specific Commandments that apply:

I. Anyone in a public place can take pictures of anything they want. Public places include parks, sidewalks, malls, etc. Malls? Yeah. Even though it’s technically private property, being open to the public makes it public space.

So is a courthouse open to the public? I would hope so. Therefore it is indeed legitimate to photograph/videograph inside of that building. Government buildings deal with highly sensitive materials in regards to national security may indeed prohibit photography as per Commandment IV, but I don’t think the Keene Courthouse is harboring anything of that nature.

V. People can be photographed if they are in public (without their consent) unless they have secluded themselves and can expect a reasonable degree of privacy. Kids swimming in a fountain? Okay. Somebody entering their PIN at the ATM? Not okay.

So this dispels the whole argument about the photographer not having consent forms for the people they photographed. If indeed it is in a public place, it can be photographed. Now what those photographs can be used for is a different issue. If for arguments sake someone wanted to use one of those photographs as an advertisement for a product inferring an endorsement, because it is now for commercial use they will probably need consent forms. The chances of that however are highly unlikely.

VI. The following can almost always be photographed from public places, despite popular opinion:

* accident & fire scenes, criminal activities
* bridges & other infrastructure, transportation facilities (i.e. airports)
* industrial facilities, Superfund sites
* public utilities, residential & commercial buildings
* children, celebrities, law enforcement officers
* UFOs, the Loch Ness Monster, Chuck Norris

Once again, these are things within public view and therefore are legally within the realm of the photographer without the need for any special dispensation.

A few months back I posted the NYPD OPS Order On Photography. If you read the OPS Order it is very specific that the laws and practices the NYPD abides by follows the Ten Commandments very closely.

It is important to realize that these permissions are truly in our best interest as a society. While it may seem not in the best interest of the patient, if the freedom to do so didn’t exist then the video of Paramedic Maurice White getting choked by Trooper Daniel Martin would be illegal as well. Ultimately it is important that Responders understand and respect both their responsibilities to and the rights of their patients and those around them, especially photographers and the media.

This is also a great reason why your agency should be involved in Social Media. If the Keene Fire Department would have had a Social Media presence instead of this webpage, they would have been able to defend themselves in a more direct fashion. If you’re from the Keene Fire Department and reading this, it’s not too late to get started in Social Media.

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  1. […] The truth is that had the patient not come forth to sue him and the city, and let’s be honest their really after the city since he is not worth all that much, we would not know who the patient was to this day. The patient, Teena Gamzon, wasn’t mentioned in the earlier news reports that I’ve read. I also would question the legality of the photograph. Was this taken in public view? If it was taken in a hospital, does the hospital post signs specifically forbidding photography? Do they enforce it? Taking the photo may have been totally and absolutely legal. Before you start screaming about private property (which since a hospital is open to the public it is considered a public space, just like a mall is) and HIPAA violations just because of the photo, I suggest you read an old (but still relevant) post on HIPAA and Photography. […]

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