Broadcasting for TV at Medical Facility

[graceous]

What is the name of your state (only U.S. law)? California
Hello, I work at a medically-based facility for the elderly and disabled where patients attend for several hours a day. Our marketing person wants to have someone make a video of one of our parties for marketing purposes with the intent of having it on a TV station Mostly it would show patients dancing and having fun. There are, rightfully so, staff concerns with potential HIPAA violations. Patients signed a consent for photographs and videos, but, as many things that patients sign, I wonder if they understood what they were signing as it was not in the language they normally speak. I have spent a lot of time reviewing potential HIPAA violations, but I cannot find anything clear cut on addressing this issue. Any assistance is appreciated.

 

[Zigner]

What is the name of your state (only U.S. law)? California
Hello, I work at a medically-based facility for the elderly and disabled where patients attend for several hours a day. Our marketing person wants to have someone make a video of one of our parties for marketing purposes with the intent of having it on a TV station Mostly it would show patients dancing and having fun. There are, rightfully so, staff concerns with potential HIPAA violations. Patients signed a consent for photographs and videos, but, as many things that patients sign, I wonder if they understood what they were signing as it was not in the language they normally speak. I have spent a lot of time reviewing potential HIPAA violations, but I cannot find anything clear cut on addressing this issue. Any assistance is appreciated.

I feel that this is getting in to the realm of nunya.

 

[TheGeekess]

What is the name of your state (only U.S. law)? California
Hello, I work at a medically-based facility for the elderly and disabled where patients attend for several hours a day. Our marketing person wants to have someone make a video of one of our parties for marketing purposes with the intent of having it on a TV station Mostly it would show patients dancing and having fun. There are, rightfully so, staff concerns with potential HIPAA violations. Patients signed a consent for photographs and videos, but, as many things that patients sign, I wonder if they understood what they were signing as it was not in the language they normally speak. I have spent a lot of time reviewing potential HIPAA violations, but I cannot find anything clear cut on addressing this issue. Any assistance is appreciated.

What did the facility's attorney say when asked your question?

 

[quincy]

What is the name of your state (only U.S. law)? California
Hello, I work at a medically-based facility for the elderly and disabled where patients attend for several hours a day. Our marketing person wants to have someone make a video of one of our parties for marketing purposes with the intent of having it on a TV station Mostly it would show patients dancing and having fun. There are, rightfully so, staff concerns with potential HIPAA violations. Patients signed a consent for photographs and videos, but, as many things that patients sign, I wonder if they understood what they were signing as it was not in the language they normally speak. I have spent a lot of time reviewing potential HIPAA violations, but I cannot find anything clear cut on addressing this issue. Any assistance is appreciated.

I agree with TheGeekess that the facility's attorney should be consulted before any filming is done on the premises without the express written permission of all of those who are to appear in the film, especially if the film has a commercial purpose.

It is vital that everyone who has been asked to sign a release understands exactly what they are signing before giving consent through their signature. Releases must either be written in the language understood by the patient - which requires careful crafting to make sure the legal permissions in one language are not altered in translation - or explained carefully by a professional translator. Legal forms written in one language can rarely be translated verbatim into another language and have the translation hold. In addition, all patients must be deemed competent to sign the legal consent forms.

In other words, no one can just go into an elder care or disabled care center and film what they see and then market the film. At least, they can't without a high risk of being sued.

TheGeekess' advice is the advice to follow. The facility's attorney should be consulted, first, and a privacy rights attorney should be consulted as well. There are both privacy rights and publicity rights to consider.

 

[Zigner]

I agree with TheGeekess that the facility's attorney should be consulted before any filming is done on the premises without the express written permission of all of those who are to appear in the film, especially if the film has a commercial purpose.

It is vital that everyone who has been asked to sign a release understands exactly what they are signing before giving consent through their signature. Releases must either be written in the language understood by the patient - which requires careful crafting to make sure the legal permissions in one language are not altered in translation - or explained carefully by a professional translator. Legal forms written in one language can rarely be translated verbatim into another language and have the translation hold. In addition, all patients must be deemed competent to sign the legal consent forms.

In other words, no one can just go into an elder care or disabled care center and film what they see and then market the film. At least, they can't without a high risk of being sued.

TheGeekess' advice is the advice to follow. The facility's attorney should be consulted, first, and a privacy rights attorney should be consulted as well. There are both privacy rights and publicity rights to consider.

I suspect that the facility's attorney did review this plan. The employee that is posting wouldn't know about it since it's not his/her business.

 

[quincy]

I suspect that the facility's attorney did review this plan. The employee that is posting wouldn't know about it since it's not his/her business.

I suspect as much, too. That said, I think it is sort of nice that the employee is looking out for the welfare of the patients at the facility.

Sticking a release form in front of someone who might not understand what is written or what it means legally is a concern that might not have been addressed properly by those wishing to film. The translation of legal forms into a different language can be quite the challenge, especially since some legal terms used in the US are not recognized in or translatable into other languages.

 

[graceous]

Just an update, and thanks for all your posts. There is no facility attorney, and it did become my business because I am part of management. Sadly, it was decided that because all the patients signed a form (and they do not even speak English, for the most part) allowing video recording, it was OK. The form was signed when they first entered the facility, along with gazillion other forms. So, I can guess they paid little or no attention to what they were signing.

This is a small facility with limited resources, some of the licensed professionals refused to be part of the videos talking to patients. They stood their ground. I have minimal patient contact, but I took both days off when this was occurring. If this occurs again, I am going to use some of this excellent information in your posts to make a case for doing things the right way.

 

[quincy]

Just an update, and thanks for all your posts. There is no facility attorney, and it did become my business because I am part of management. Sadly, it was decided that because all the patients signed a form (and they do not even speak English, for the most part) allowing video recording, it was OK. The form was signed when they first entered the facility, along with gazillion other forms. So, I can guess they paid little or no attention to what they were signing.

This is a small facility with limited resources, some of the licensed professionals refused to be part of the videos talking to patients. They stood their ground. I have minimal patient contact, but I took both days off when this was occurring. If this occurs again, I am going to use some of this excellent information in your posts to make a case for doing things the right way.

Thank you for the update, graceous.

I hope for the patients' sake that nothing that was filmed was too invasive of their privacy and, for the sake of the facility, that none of the families of these patients take exception to the video recording and seek out legal recourse.

Good luck.

 

[justalayman]

You have some serious problems if somebody complains

First, it is a hipaa violation to show a patient as you explains. you cannot publish information that identifies a patient. Putting their image on a video and saying; here are some of our patients, does exactly that.


Then, if they do not speak English and you provided them with an English document, well, let's just say charmin might be interested in your releases.

Your budget may get ties up paying an attorney or fines should anybody file a complaint. The professional that chose to not be included were the wisest in the bunch.

 

[OHRoadwarrior]

It would be much better to close off the areas for filming and use actors simulating real patients.