March 24, 2011
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Comments
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Ken and Jennifer,
Great subject. I would suggest removable SD cards be used for each patient and kept in their individual file. The nurse could ask for permission from the patient upon assigning them an exam room and remove it when the exam is completed. Each camera would be stand alone with no possibility of a person eavesdropping on an exam. The data would become portable not unlike personal records which are regulated by HIPPA.
I have another question that I would like to ask off the record. Can you please contact me.
Thanks for the blog. I read it every morning.
Regards,
Ed Maffey
Maffey's Security Group
Elizabeth, NJ
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Jennifer
What about cameras in operating rooms in hospitals. They are used fairly widespread ....
ARNOLD BLUMENTHAL
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Ken,
I have to disagree with Jennifer’s interpretation of HIPAA as it relates to video monitoring of a doctor’s examination room. But before that is addressed, my first concern would be for the doctor’s office practices that would put him in a position where impropriety could ever be alleged. In the case of a male doctor conducting an OB/GYN examination, a female staff member should ALWAYS be present. A doctor dismissing this common protective policy is begging for a lawsuit, and cameras would be a moot point. Impropriety could easily be conducted in plain, intimate view, without the video viewer being aware. Impropriety and a medical examination can be the same act, just under different conditions of expectation.
But now back on point: HIPAA deals with “Protected Health Information” The fact that you present yourself for medical care is not a matter of privacy under HIPAA. If it were, your physician would have to dispense paper bags at the front door for you to wear in the waiting room to keep you from being “individually identifiable.” However, the INFORMATION disclosed, the diagnosis made, the treatment rendered, or the effects of any medical condition you may have ARE matters of absolute privacy. Therefore, unless recordings made by an audio/video recording device would capture protected health information, then you can record anything you want---as dealt with by HIPAA.
On the other hand, cameras are generally prohibited by state laws in public restrooms and other areas where there is a “reasonable expectation of privacy.” Adding a sign in no way alters your expectation of privacy. If the examination room of a OB/GYN doctor, where a female would be routinely be expected to fully disrobe, and then place herself in the most compromising of positions, does not include a reasonable expectation of privacy, then I cannot imagine what would. I would love to represent the female patient who found her OB/GYN examination from YOUR camera on YouTube. Your notices and agreements, disclaimers, and whatever reams of protective documents you might execute would be sliced with ease like the swift sword of a Ninja through thin air.
Best Wishes,
Stephen Vester
Advanced Detection Systems, Inc.
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Jennifer's response
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I do not believe Stephen is correct. I do think the fact a patient is a
patient of a certain doctor is protected. In fact, under Federal statute, full face recognition is categorized as protected health information. See 45 CFR 164.514 (which identifies "[f]ull face photographic images and any comparable images" as an individual identifier). While there have not been any precedent setting cases on this issue to illustrate the exposure you might have for installing in a physician's practice, a word of caution - offering advice that camera installation in an exam room is kosher under HIPAA would be akin to an attorney without any background or training installing a multiple panel system. I recommend everyone out there not dabble, and opine only to the extent that cameras should not be placed in locations where individuals have an expectation of privacy, which certainly includes an examination room. Offering an opinion on the fundamentals of the federal privacy law may be interpreted as offering a representation that could be used against you for liability purposes.
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KK's response
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Here's how this scenario would play out. You're called by a physician to install a CCTV system; of course they also want audio. The doctor may have his own specifications, such as covert cameras, limited to waiting room, or full blown off the wall dressing rooms, exam rooms, operating rooms, bath rooms [just to get totally nuts]. He dangles a check and is willing to pay for the installations. Sure your license is important, and your sense of morality intact, but it's a nice juicy job. Let's see if Ken can figure this out so the job can be done.
You are going to use a contract. In this case either Sales or CCTV Sales. The contract will clearly specify that the subscriber provided the specifications for the job, not you. This, by the way, is helpful only in jurisdictions where the user and not the installer is responsible, so you need to check that out.
If the subscriber wants to include all of the areas described above then obviously you are dealing with a nut. I'd pass on the job. But if the areas are limited to waiting, examination and operating rooms, I think there are ways to retain the job. Here's what I'd recommend if I got a call for my off the cuff opinion.
First, the doctor's HIPPA forms are going to have to be revised, and I would insist on conspicuous disclosure and consent in the intake forms regarding the CCTV. Same could work for audio by the way, but I'll discuss that below.
Second, I would not install covert cameras. They should too should be conspicuous. I would position the camera in such a way as to less intrusive and revealing. I suppose it would be a good idea if the cameras were not activated until the doctor came in the room and announced that he was turning on the camera. If there is no audio then his pointing out the camera to the patient may accomplish the additional notice.
Third, the real problems will arise if the data is misused. The subscriber will need to be careful to maintain the confidentiality of the data. Any misuse is likely to result in serious civil and possibly criminal charges. If your contract clearly spells out the proper use of the system and your constraints when installing the system, you should avoid getting dragged into the matter. All of the services you perform, intrusion, fire, PERS, other alarm and security services, expose you to unimaginable liability, and the factual scenarios that can arise are almost as limitless. Be sure to conduct yourself in a professional manner, let your own sense of right and wrong guide you, and avail yourself of the right to contractually contract away liability for your own negligence - some you do by using the Standard Form Contracts.