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Photos, HIPAA, and the First Amendment

Today’s burning question: I am a career firefighter and one of my passions while off duty is to take photos at fire and emergency scenes. I typically post them to my web site and occasionally I post on Facebook and Fickr as well. I am carefully not to take photos at incidents involving my own fire department.

A few weeks ago I took a photo at a recent incident in Smithville (25 miles from home) and I received an email from the Smithville Fire Department stating:

You are hereby requested to immediately remove the attached photo from your website. In this photo, the patient's face is clearly visible.  Unless you received permission from the patient to use their likeness, this photo may be in direct violation of HIPAA regulations.  We at Smithville Fire Department take patient right's and privacy very seriously, and since this is a rescue that was performed by our Agency, we would like to caution you against using a discernible and identifiable image.

Have I violated HIPAA?

Answer: Absolutely not!. Since you were off-duty at the time and not in your own community, HIPAA is totally inapplicable to you.  Furthermore, you were acting as a private citizen in taking the photos. As a citizen you have a constitutional right under the First Amendment to take photos at emergency scenes.

Having said that there is nothing inherently illegal with the Smithville fire Department’s request. They can ask… but their request has no teeth. Should they try to enforce their request it would likely be a violation of your First Amendment rights.

PS – for the Firehouse Lawyers w/o JDs… the First Amendment right to take photos does not extend to on-duty personnel!!! … only because I knew you were thinking about it….

Comments - Add Yours

  • T. Robbins

    there is one "But" to your answer. If the person photographed is actively receiving medical treatment at the scene while the photo is taken. Then, yes. It violates HIPPA. If the images include addresses or license plates of the victim, then it is considered "Identifying Informatio" thereby violating the law.

    • Legeros

      Incorrect. The person can be photographed up and down and north and south, with treatment and identity included, as long as the photographer (and/or party controlling the images?) is not part of the agency delivering (or maintaining records of) the treatment. That's why, say, news agencies capture and publish such photos all day long. 

  • http://www.PotomacValleyFire.Com Bobby H

    Currently our D/C doesn't want any pictures posted on our company website because in his words " Any picture taken of or on the scene of an incident, is a violation of HIPPA".  We never show any patients face, no vehicle tag numbers, home address (both in pictures and in the wording on the story), do not give out any personnal information or names. He now has all those in the dept who fought against having a website joining in and saying this is why we shouldn't have a website because its setting us up for a lawsuite. Our website is nothing more then anyother Fire Dept/Company website.  He (our D/C) believes that any on-duty personnel taking pictures of an incident is also a HIPPA violation and on-duty conduct.

    Is there anything we are doing illigal or violating HIPPA as on duty personnel?

     

    • http://firelawblog.com Curt Varone

      If you are on duty you should not be taking photos unless you have a policy that allows it. That is my advice – it is not the law (except in NJ).

      If you take photos while on duty you could violate HIPAA (depending), and/or you could violate state medical confidentiality laws. Besides that there are evidentiary issues that can come back to haunt you PLUS – if you are a public employee chances are the photos you take will constitute a public record, triggering obligations on you and the department to maintain copies and make them available in accordance with state law. Please reread the first paragraph…

  • DS

    Legeros has it right, and of course so does Curt.  People often forget that HIPAA only applies to medical personnel involved in treating a patient.  That's how the press can get away with publishing pretty much anything.  Remember, there's not even any laws against publishing the names of rape victims.  That's something that news agencies just agree not to do on their own.  Think about it – If any such disclosure was a violation of privacy laws, it would be illegal for dispatch centers to put out over the airwaves (where anyone with a scanner could hear), "53 y/o male complaining of chest pain, location is 1234 North Main Street," etc. 

    HIPAA and privacy laws only apply to agencies or personnel directly participating in patient care. 

    • http://www.PotomacValleyFire.Com Bobby H

      My dept does not have an ambulance or medic unit, we only staff an engine company, Boats and support vehicles used as First Responder units for ems calls. So once the county Medic unit or neighboring companies Ambulance/Medic unit shows up, We (my dept) are "No longer providing patient care" we become a support company. So once the EMS agency shows up, we are no longer held to HIPPA?

       

      • http://firelawblog.com Curt Varone

        Bobby

        HIPAA may or may not apply to you – depending on a number of factors (electronic billing being one of them) BUT your state’s medical confidentiality law almost certainly will apply. Besides that your obligations to respect patient confidentiality do not simply “stop” because an ALS provider arrives on scene – any more than a nurse’s obligations stop because a doctor takes over patient care.

  • http://www.PotomacValleyFire.Com Bobby H

    We still assist if the ALS/BLS crews needs it, but once the ALS and/or the BLS unit arrives "PT Care" is offically turned over to them, not us even if we started initial PT care. Our problem is the D/C is playing the HIPAA card. We do not post EMS call pictures on the website  nor do we take any on the scene of them. We do how ever post from time to time a weekly break down of call that say " Medical Emergency, Jones St, Units so & so responded".  we don't use the address, patient name, pictures ect. Now for Vehicle accidents, Fires, etc we do use the Hundred block and street name but not the address, incident pictures do not use car plate numbers, photo's that show house numbers, pt or victims face or names. Our D/C believes any picture taken on the scene of a call is a Hippa Violation. Our Bylaw Committee has now jumped on his band wagon and brought into action a standard for the website, but it only states " Post on the website must meet HIPAA Standards", there is no other wording or clearification on what that intails. Anyone who looks at Fire Company/Dept websites know, without pictures most people stop looking and do not come back to the site. Having this new Website Policy, sets up the web committee for disciplanary actions for "HIPAA voilations that know one knows, because the D/C and Board/Bylaw committee beleives any picture is a violation. What the website committee has been doing shouldn't be an issue and over the last 2 years hasn't, but with the new Bylaw change, everything on the site is a violation in their (D/C & Bylaw Committee) eyes. Just looking for clearity on what can and can't be posted and when. THANKS