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The question has two sides. . . Photographing in a Nursing Home

As our government officials tighten security restrictions under the banner of making us all more protected in our homeland, we as editorial photographers should examine the impact on our own photographic output.
Let's take the case of a nursing home.
Granted, none of us who have relatives residing in a nursing home need unwanted visitors in the form of snooping photographers taking pictures of our loved ones. But what if a loved one were suffering indignities at the hands of an unethical and incompetent nurse, doctor, or other nursing home employee?
Our reaction would be different.
Perhaps you've bumped up against this constraint:
"You need a model release to photograph any patient in a licensed health care facility in any U.S. state." Such statements are not law -- and they often come from a nursing home health care professional, "protecting" their Turf. Yes, we all honor laws that protect private health care information, such as tests, x-rays, financial background, etc. These laws don't apply to "right-to-know" documentation of living and working conditions.
We are not commercial photographers; we are editorial photographers who capture life around us.
THE OTHER SIDE

We can all agree on the "ethics" of taking photos in a nursing home. But we must also view the other side of the question, "What if photos actually were not allowed to be taken in nursing homes unless the photographer had model releases from the persons pictured...?"
I am reminded of an article that appeared last year in the New York Daily News, "Fatal Errors - Report Finds Nurses' Mistakes Led to Thousands of Deaths."
To quote from the article:
"Poorly trained or overwhelmed nurses are responsible for thousands of deaths and injuries each year in the nation’s hospitals, according to a Chicago Tribune investigation." Since 1995, at least 1,720 hospital patients have been accidentally killed and 9,548 others injured from mistakes made by registered nurses across the country, the Tribune’s analysis of 3 million state and federal computer records shows." (By the way, figures are even higher related to doctors’ errors, according to several stufies.)
Since nurses also work in nursing homes, it's conceivable that this situation applies to nursing homes also. This is not the first time this sort of health care incompetence has been reported in the news. It's no wonder health care officials would prefer to prevent photographers from photographing in their facility, by citing federal law (Sec.101 of Title 18 USC). In reality, this law protects personal documents of patients, and does not prohibit photography, unless illegally acquired (e.g. through trespassing).

THE PHOTOGRAPHER WHISTLEBLOWER
Here's an example where such regulations are superceded by the necessity of the public's "right to know."
Allegations of civil and criminal wrongdoing come from a variety of sources. Sometimes an individual not otherwise involved in law enforcement uncovers evidence of wrongdoing, and wishes to bring that evidence to the attention of appropriate authorities. Persons with access to protected health information sometimes discover evidence of billing fraud or similar violations; important evidence of unlawful activities may be available to employees of covered entities, such as billing clerks or nurses.
Section § 164.518(c)(4), of the federal "Privacy Rule," addresses the issue of disclosures by employees or others, of protected health information, in whistleblower cases. An attorney would clarify that a whistle blower would not be held in violation of law when they disclose protected health information that they believe is evidence of a civil or criminal violation, and the disclosure is: (1) made to relevant oversight agencies and law enforcement, or (2) made to an attorney to allow the attorney to determine whether a violation of criminal or civil law has occurred, and to assess the remedies or actions at law that may be available to the whistleblower.
Some whistleblower activities can be accomplished without individually identifiable health information. There are, however, instances in which identifiable information has to be brought in to demonstrate that an allegation of wrongdoing merits the investment of legal or investigatory resources. A billing clerk who suspects that a hospital has engaged in fraudulent billing practices may need to use billing records for a set of specific cases to demonstrate the basis of his suspicion to an oversight agency.
The persons who find such evidence are likely to be employees of the suspect entity. Congress and the states have recognized the importance of whistle blowing activities, by acting to protect whistle blowers from retaliation. Federal statutes that include protections for whistleblowers who contact appropriate authorities, include the Clear Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, and the Safe Drinking Water Act. Congress also passed the Whistleblower Protection Act, to protect federal employees who complain about improper personnel practices at federal agencies. At least eleven states have passed whistleblower protection laws that protect both private and public employees who provide evidence of wrongdoing to the appropriate authorities, and many more states have laws that provide such protections for public employees.
THE PUBLIC HAS AN INTEREST
The qui tam provisions of the Federal False Claims Act go further, and provide a mechanism for an individual to prosecute a case against a person who has allegedly defrauded the government. Like traditional whistleblower actions, qui tam actions were created by Congress to further the public interest in effective government. Qui tam suits are an important way that individuals can protect the public interest, by investing their own time and resources to help reduce fraud. And, also, like whistleblower actions, the individual may need protected health information to convince an attorney that a viable qui tam case exists.
- - - - - - - B O X - - - - - - - - - - -
Because health care is a sensitive issue, too often it is treated as one-sided. Most photographers have only heard the one side of the story: STAY OUT. This article about photographing in sensitive areas such as a nursing home, may offend some readers. However, there are cases where it may be called for, to take pictures in a nursing home, without model releases, when the use and intent of the photos is for documentation purposes.
Through the years, a number of my seminar attendees have been part-time photographers who are also practicing attorneys. These people have confirmed over and over that the public usually misunderstands the question of model releases, mainly because they have heard of "severe" penalties resulting from the lack of a model release. Luckily, great photographers of the past, Margaret Bourke-White, Henri Cartier-Bresson, Dorthea Lange, were willing to capture the quintessential editorial photos of their era because they were aware of their rights as a citizen and as a photographer.
In a free society, we can always expect abuse of some freedoms. Photography is no exception. State and federal laws govern protected health information. They do not ordinarily allow individuals access to information which is in the possession of public health agencies. However, other federal and state privacy and “freedom of information” laws may allow individuals to access this information. By doing your homework, plus respecting the privacy rights of individuals, your pursuit of a well-rounded photo essay or well-founded expose` can come to fruition.
Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th Road, Osceola, WI 54020 USA. E-mail: info@photosource.com . Fax: 1 715 248 7394. Web site: http://www.photosource.com.



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