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Possible HIPAA Violations
On Sept. 15, 2006, Drennan was suspended, pending an investigation, after ACAD Chief Jason Albert learned of the forum postings. Allegations included dissemination of Protected Health Information (PHI), a breach of ethics concerning confidentiality and a willful, violent, negligent or other improper act, which brings discredit to the district.
Albert said that Drennan’s photographs and a comment he posted in the forum were unethical.
“He posted [the pictures] in a manner to perceive only shock value,” said Albert. “I’m not convinced his intent was for education.”
The investigation concluded Oct. 5, 2006, and Drennan was notified of his termination. Albert cited five violations for the grounds of termination, including an allegation that the district owns the photographs because they were taken while on duty. In Drennan’s termination letter, Albert stated, “You have failed to secure proper authorization from my office or the Ambulance District prior to the distribution of records owned by us.”
The Controversy
One argument against ACAD’s charges for Drennan’s initial suspension is that the district’s policy manual does not address photography of incidents while on duty. Taking pictures is not listed as a job function of their EMTs or paramedics. Drennan’s scope of employment is not for the purpose of photography for hire, and the lack of policy and/or written agreement fails Section 101 of the United States Copyright law “work made for hire” definitions. Thus, copyright protection would be given to the photographer.
In light of this lack of policy and the fact that the photographs do not contain any identifiable images of the patient, ACAD dropped the PHI allegations in regard to the photographs when it issued Drennan’s termination. However, Drennan’s comments on the Web site remained a concern because he failed “to secure proper written authorization prior to the dissemination of potentially protected health information from the patient or his legal guardian,” as stated in his termination letter.
In one of the threads on the Web site, Drennan responded to a posted question about the patient’s condition. Drennan wrote, “He came back to KV [Kirksville] today. He is in rehab.”
One rebuttal to the charge that his comments disseminated potential PHI is that it’s unclear if Drennan’s comment refers to the A.T. Still Rehabilitation Center in Kirksville itself, which is the facility the patient was transferred to and was by that time public knowledge via local media outlets, or if Drennan’s comment is about a specific location within the facility. However, HIPAA does allow hospitals that maintain a patient directory to release patient conditions and general locations to the public if asked, unless there is an objection by the patient or legal guardian.
Drennan said he was unaware that his comment might disclose PHI. As a result of learning about this possible violation, Drennan went back to the patient’s parents and secured a signed release. Drennan’s attorney, Seth Shumaker, states in a termination rebuttal letter submitted to the ACAD board that the signed release “once given, operates prospectively as well as retroactively.”
The Parents Respond
After Drennan’s suspension had made news in the Kirksville Daily Express, the patient’s parents decided to visit the Web forum. In a written statement to ACAD, the patient’s mother was “appalled” by the comments on the forum where the photographs were posted.
In her statement, she wrote, “This is not helping anyone, only judging us as parents and my son, whom they don’t even know, as a careless ATV driver. This was an accident and the people posting the comments on this site were crude and very judgmental.”
Drennan said the photographs were posted in a manner he intended — to support previously posted public comments and spark debate about ATV responsibility and safety. If just one life or injury can be spared as a result of his photographs, he believes the entire community of Adair County will have benefited from his images.
As it stands now, Drennan’s fate rests with his upcoming appeal to the ACAD board of directors tentatively scheduled for Tuesday, Oct. 24. At this meeting, the case will be resolved, with either the termination being validated or with Drennan’s reinstatement.
Click here to read a commentary on this issue by Ray Kemp
Ray Kemp is a contributing photographer for JEMS and the owner of 911 Imaging, a professional EMS, rescue and police photography company. His 14 years in EMS included six years as public information officer for the St. Charles County Ambulance District in Missouri. He may be reached at raykemp@911imaging.com.
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