Dramatic Portrayal of Care During Early COVID-19 Costs Hospital $80K; OCR: No Prior Authorization | Health Care Compliance Association (HCCA)

Report on Patient Privacy 23, no. 12 (December, 2023)

Spring 2020 was a terrifying period in the annals of COVID-19, and New York was at the epicenter. COVID-19 cases, and deaths, already the highest in the nation, were surging; there were no specific treatments and vaccines were but a distant dream. Although people branded health care workers heroes, banging pots and pans nightly to honor them, with no visitors allowed, most had no real knowledge of medical personnel’s desperate—and often futile—fight to save patients.

That changed in April of that year when St. Joseph’s Medical Center (SJMC) in Yonkers—which borders the Bronx and is two miles north of Manhattan—invited Associated Press (AP) photographer John Minchillo into the hospital’s emergency room, intensive care unit and triage and testing tent set up outside.

His 21 photos, which are still online, captured exhausted medical staff, their faces lined from heavy, hot masks and other protective gear; a clutch of doctors and nurses resuscitating a shirtless man; a patient encircled by ventilator tubing. Only staff were identified by name.[1]

The accompanying story by Brian Mahoney—who told RPP that Minchillo was on site, but that he was not—was fairly short at a little more than 800 words. But Mahoney had done his reporting: although no specific patients were discussed or identified, the story quoted six administration and medical leaders, including Chief Financial Officer Frank Hagan, who complained at the time about price gouging of masks, gowns and protective shields.

More than three years later, Hagan’s name would be published on the HHS Office for Civil Rights (OCR) website as the person responsible for implementing a two-year corrective action plan (CAP) that accompanies an $80,000 payment the medical center agreed to make.

SJMC’s (alleged) offense: allowing an unidentified reporter to observe a trio of patients receiving treatment for COVID-19. “The evidence supports that SJMC allowed the reporter access to the patients and their clinical information. The disclosures were not made pursuant to a permissible purpose under or as required by the Privacy Rule and were made without first obtaining valid authorizations from the affected individuals,” according to the settlement agreement.[2]

The story appeared April 20, 2020. On April 28, 2020, “HHS notified SJMC of HHS’ investigation regarding SJMC’s compliance with the Privacy Rule based on information contained in the AP article,” according to the settlement documents.

On May 5, 2020, OCR issued what it called “additional guidance reminding covered health care providers that the HIPAA Privacy Rule does not permit them to give media and film crews access to facilities where patients’ protected health information (PHI) will be accessible without the patients’ prior authorization.”[3] The agency made no mention of the AP story, but the timing suggests it might have triggered it.

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