Q: Can we post pictures of deceased nursing home residents as a way of remembering them?
HIPAA Weekly Advisor, March 12, 2007
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A: Displaying these photos where future patients and visitors may see them is a disclosure of personal health information for reasons other than treatment, payment, and operations purposes. Thus, the safest approach would be to obtain the patient's authorization when you take the picture, though that may be an extreme measure.
It is reasonable to consider the intent of these photos. Most likely, the patients gave them to staff as a friendly gesture or permitted staff to take photos when it was clear that the photos were not part of the patient's care. And it is likely that the patients understood that the staff may show the photos to others. This situation appears to fall in a gray area of the privacy rule, and the photo display could be acceptable. As a precaution, you may want to spell out the acceptable conditions for display, to avoid a clearly inappropriate disclosure.
Editor's note: Kate Borten, CISSP, CISM, security consultant with The Marblehead Group, in Marblehead, MA, answered this question. This is not legal advice. Consult your attorney for legal matters.
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