Administration and Leadership, Columns

Pro Bono: Protect Your Agency’s Ride-Along Program from Liability

Issue 5 and Volume 39.

It’s a growing trend in EMS for agencies to install some type of audio or visual recording device on their ambulances. These devices can be used to monitor driving, road conditions, employee and patient conduct, and to help ensure the safety of crew members and patients. They can also raise concerns about employee and patient privacy and have legal implications—especially when sharing the recordings with others, such as law enforcement.

Although they vary by state, every state has laws regarding the recording of others via audio or visual devices. There are very few limitations as to when employees can be recorded, as long as there’s a clear policy on when and where recording devices will be used and there is a legitimate business purpose for their use. Continued employment with knowledge of the policy is usually sufficient to meet the consent requirement under most state laws.

Many states require that other individuals consent to being recorded unless those recordings are being made in a public place where there’s generally no expectation of privacy. The back of an ambulance may not be considered a public place, but EMS agencies can usually meet the consent requirement of most state laws as long as signs or other notifications are posted in visible areas within the ambulance alerting individuals that the area is being recorded. These signs put the individual on notice of the recording so that entry into the ambulance is deemed as the individual’s consent. For example, a sign could be posted that states: “Video and Audio Recording in This Area” on the passenger side dashboard and in the patient compartment.

Recording the patient during transport raises a host of other privacy, consent and legal issues not implicated when recording outside the ambulance. An agency wishing to record the patient should carefully consider all of the ramifications and discuss the decision with legal counsel before implementation.

What should EMS agencies do when the onboard recordings are requested by law enforcement officials? As with any other request from law enforcement, the recordings should be evaluated to determine if HIPAA or state privacy laws are implicated. Is the patient or any other information that identifies the patient, such as the patient’s address or vehicle, visible in the recording? Is the patient’s name, social security number, address or medical condition discussed as part of an audio recording? If so, it’s likely that HIPAA is implicated, and the EMS agency must follow the law before disclosing the patient’s protected health information (PHI). Unless the disclosure fits one of the exceptions that allow the release of PHI without the patient’s authorization, an authorization from the patient must be obtained prior to release.

Onboard recording devices have become relatively inexpensive and their small size and digital recording capability makes it easy to install them in an ambulance. They can be a valuable adjunct to patient and crew safety. The key to reducing legal risk is to evaluate all the pros and cons of installing these devices, use them only for legitimate business reasons, and consult with your legal counsel to ensure compliance with HIPAA and state privacy laws before installing them.

Pro Bono was written by attorneys Amanda WardDoug Wolfberg and Steve Wirth of Page, Wolfberg & Wirth LLC, a national EMS-industry law firm. Visit the firm’s website at www.pwwemslaw.com  for more EMS law information. Check out the new fourth edition of The Ambulance Service Guide to HIPAA Compliance now available from PWW.

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