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Cover Story: Hospitals, Don’t Let TV

Cameras Roll Without First Obtaining Malpractice Insurance

Patients’ Permission EXPERT ADVICE

Continued from page 1
and Accountability Act of 1996 and its place, each hospital also must establish a Key Man vs. Buy/Sell Insurance
implementing regulations (“HIPAA”) process for evaluating and approving
required patients or their representatives media requests to film in areas of the facil-
to provide authorization for television ities that are not generally accessible to the I am often contacted by clients inquiring about
crews to record the provision of health public and identify a contact person to key man insurance. After asking a few questions to
care services to such patients before such respond to such media requests. Finally, determine what they are trying to accomplish, it
recording could begin. Before HIPAA the hospitals must distribute these policies usually turns out that they are actually looking for
became effective, the show’s camera crew to all workforce members and train all buy/sell insurance. In fact, these types of insurance,
typically requested patients’ permission workforce members whose job functions for the most part, do not exist. The insurance is
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after they began taping, due to the emer- involve working with the media. simply a funding mechanism for a financial obliga-
gency nature of the services; if permission Ironically, “BostonMed” is not the first tion of the practice. The funding can come from
was refused, that patient’s case would not ABC News medical documentary that has one of several sources, such as cash flow, a sinking
1
be included in the program that aired. resulted in HIPAA enforcement activity. In fund or an investment account. Due to the signifi-
Recently, the filming of an ABC News January 2013, OCR received a complaint cant leverage provided, various types of life and dis-
medical documentary series resulted in against New York and Presbyterian ability insurance are usually employed. Key man
HIPAA enforcement actions against the Hospital (“NYP”) alleging that NYP imper- differs from buy/sell in the type of financial obliga-
hospitals involved by the Department of missibly disclosed PHI to individuals film- tion the practice faces due to specific events. BY WES CALDWELL
Health and Human Services’ Office for ing “NY Med” at the hospital in April
Civil Rights (“OCR”). During the filming 2011. After OCR’s investigation, NYP What is Buy/Sell?
of “BostonMed” at Boston Medical Center agreed to pay $2,200,000 and enter into a Buy/Sell coverage funds the execution of a purchase agreement, in the event of
(“BMC”), Brigham and Women’s Hospital Resolution Agreement and CAP with the death or permanent disability of a partner. The purpose of the agreement is
(“BWH”), and Massachusetts General OCR. There, OCR found that NYP’s imper- to facilitate a smooth ownership transition and exclude any outside interests
Hospital (“MGH”), OCR found that the missible disclosures of two patients’ PHI to from future business decisions. The agreement may stand alone or be included
hospitals permitted filming to begin before the film crew and staff were “egregious;” as part of the partnership agreement. The insurance creates the cash flow to sat-
they had obtained all necessary patient NYP had permitted the filming of someone isfy the provisions of the agreement. Keep in mind that the agreement is the driv-
authorizations. To resolve these potential who was dying and another patient in “sig- er, so without it, the insurance makes no sense. Many agreements I see are fund-
HIPAA violations, BMC paid OCR nificant distress,” and the crew did not ed with life insurance but rarely with disability insurance, even though most
$100,000, BWH paid $384,000, and MGH stop filming even when a medical profes- agreements contain a disability provision. An unfunded agreement, while better
5
paid $515,000, and each hospital has sional urged it to do so. than none, could create a significant cash strain to the practice.
entered into a Resolution Agreement and Despite the lure of publicity and poten-
2
Corrective Action Plan (“CAP”). tial payment from documentary films or What is Key Man?
In this case, the hospitals attracted the reality shows, hospitals and other health Key man coverage indemnifies the practice for the premature death or disabil-
attention of OCR through stories appear- care providers must assure that appropri- ity of a key employee or partner. The insurance provides cash flow for the prac-
ing in different media outlets. A news story ate HIPAA privacy safeguards are in place tice to replace the resulting loss of revenue. It also provides the time and
was posted to MGH’s website in October before permitting film crews into treat- resources to find a replacement. If the loss of an individual, for any period of
2014 indicating that ABC News would be ment areas. Their failure to do so likely time, would significantly impact your practice revenue, then a key man arrange-
filming a medical documentary program will cost them any profits derived from the ment should be considered.
there. A Boston Globe article in January filming and make them wish they had It is prudent to consider the financial impact that the loss of a partner or key
2015 indicated that both BMC and BWH avoided the cameras. employee would have on the bottom line. Proper planning and funding will
had permitted ABC News to film a medical ensure the smooth continuation of the practice during an otherwise challenging
documentary program onsite. Following Patricia A. Markus, Partner, Nelson time.
these published stories, OCR initiated a Mullins Broad and Cassel, can be reached
compliance review at these hospitals to at (919) 329-3853 or Wes Caldwell heads up Danna- Gracey’s
determine whether each had implemented trish.markus@nelsonmullins.com. Physician and Employee Benefits Division. He
appropriate and sufficient patient privacy can be reached at Wes@dannagracey.com or
protections before the film crews were per- 1 Wikipedia, “Trauma: Life in the ER,” available at (800) 966-2120.
mitted to begin their work. OCR deter- https://en.wikipedia.org/wiki/Trauma:_Life_in_the_E
.R. (accessed Sep. 24, 2018).
mined that each hospital impermissibly 2 See HHS Press Office, “Unauthorized Disclosure
disclosed the protected health information of Patients’ Protected Health Information during ABC
(“PHI”) of patients to ABC employees dur- Television Filming Results in Multiple HIPAA
ing the show’s production and filming. In Settlements Totaling $999,000” (Sep. 20, 2018), Visit us on the web at
available
at
the MGH and BWH cases, this determina- https://www.hhs.gov/about/news/2018/09/20/unau-
tion was “based on the timing of when” thorized-disclosure-patients-protected-health-infor- www.southfloridahospitalnews.com
each hospital had received some written mation-during-abc-filming.html. www.southfloridahospitalnews.com
patient authorizations. The BMC CAP 3 See HHS.gov, “Can health care providers invite
requires the hospital to send an e-mail or arrange for members of the media, including film
crews, to enter treatment areas of their facilities with-
reminding workforce members of the hos- out prior written authorization?” (FAQ 2023), avail-
pital’s policy on filming patients for non- able at https://www.hhs.gov/hipaa/for-
clinical purposes, and the e-mail must professionals/faq/2023/film-and-media/index.html.
4 See HHS.gov, “Unauthorized Disclosure of
include a copy of HHS’s Frequently Asked Patients’ Protected Health Information during ABC
Question about the circumstances under Television Filming Results in Multiple HIPAA
which film crews may enter treatment Settlements Totaling $999,000” (Sep. 20, 2018),
3
areas. The nearly identical MGH and available at https://www.hhs.gov/hipaa/for-profes-
BWH CAPs require each hospital to ensure sionals/compliance-enforcement/agreements/boston-
that its written policies and procedures cases/index.html.
5 See HHS Press Office, “Unauthorized Filming for
prohibit use or disclosure of PHI for non- “NY Med” Results in $2.2 Million Settlement with
clinical uses of photography, video or New York Presbyterian Hospital” (Apr. 21, 2016),
audio recording without first obtaining a available at http://wayback.archive-
valid authorization from all patients whose it.org/3926/20170128230744/https://www.hhs.gov/a
bout/news/2016/04/21/unauthorized-filming-ny-
PHI may be disclosed in such recording. med-results-22-million-settlement-new-york-presby-
To assure that proper safeguards are in terian-hospital.html.

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