January 6, 2021

A March 25 video by an emergency room nurse in Queens was one of the early wake-ups to the depth of the COVID-19 crisis that was about to befall us. Seeing is believing.

New York Times op-ed columnist Nicholas Kristof took the public deeper into the crisis with a video essay that documented the desperation around shortages of emergency supplies and the exhaustion of hospital staff.

Why have so few hospitals allowed journalists closer access to the front lines, access that might have blunted doubt and misinformation? There are obvious answers: hospitals don’t want to expose outsiders to the virus, they are busy, HIPAA regulations protect patient privacy and COVID-19 patients are in no condition to wave those protections. All of that is significant and true.

But there is something else. The Intercept says the Trump administration, through Roger Severino, the head of the Office for Civil Rights at the Department of Health and Human Services, issued guidelines on May 5 that made it almost impossible for hospitals to grant access to journalists. The guidance included this:

It is not sufficient for a covered health care provider to require the media to mask patients’ identities when airing recorded video (such as by blurring, pixilation, or voice alteration), after the fact. Prior, express authorization from the patient is always required.

For example, a covered hospital may not allow media personnel access to the emergency department where patients are receiving treatment for COVID-19, without first obtaining each patient’s authorization for such filming.

One of the most important provisions here is that permission must be granted prior to recording or photographing. You don’t have that kind of preadmission access in a COVID-19 crisis. People show up in the emergency room sick and get worse.

The Intercept continues:

The media guidelines announced by Severino in May reinforced HIPAA’s restrictions and warned hospitals that violations could bring fines in the millions of dollars. The announcement was not reported by general-interest publications, but news outlets for the health care industry noticed what had happened. The headline of one of those industry stories was blunt: “Patient Privacy Prevails Over Covid-19 Media Coverage.”

Severino’s guidance, little known outside the health care industry, may help solve one of the mysteries of the pandemic: Why have Americans seen relatively little imagery of people suffering from Covid-19? While there is a long-running debate over the influence of disturbing images of death and dying — whether they actually move public opinion — the relative paucity of videos and photographs of the pandemic’s victims might help explain why Covid-19 skepticism has thrived as the death toll in America reaches the level of a 9/11 every day.

The story tells of the extraordinary efforts that journalists made to document the unfolding story in New York:

Lucas Jackson, a senior photographer for Reuters, recalls that at the start of the pandemic in March, he worked with a team at Reuters that called nearly every hospital and trauma ward in New York City. They created a spreadsheet of the hospitals and whether they had been contacted and what their response was. Only a few responded, and none granted access, even though Reuters offered Guantánamo levels of control to hospital staff, agreeing to get releases from patients and allowing hospital staff to look at all photographs to make sure no names or identities were disclosed. “If that’s what it takes, we were willing to do it,” Jackson told The Intercept.

The photography director at Getty Images says for every thousand calls his agency makes to get access, they might get three yeses and, even then, before access is granted, hospitals pull back. The result is predictable. The Intercept says its audit of big-city newspaper front pages showed few images from inside hospitals. Even when they did, the images were most often of doctors and nurses. The Intercept notes:

Because it doesn’t happen often, when a powerful photo from inside a hospital happens to emerge — such as Go Nakamura’s photo of a doctor embracing a Covid-19 patient last month — it gets an enormous amount of attention.

A Seattle area physician put it this way:

To be sure, hospitals that want to be seen as places of healing and comfort might not want to be sending out messages that people in the hospital are dying and that staff are not adequately protected. It might be, as they say, “off message.”

But it is unfair to issue a blanket accusation that hospital public relation departments are trying to silence COVID-19 coverage because you have to consider the threat of mega-fines they face for violating the government orders.

The Intercept offers this thoughtful insight into the pressures that hospitals have to measure against your requests for access:

Adam Greene, an expert on HIPAA and a partner at the law firm Davis Wright Tremaine, said it comes down to the amount of legal risk a hospital is willing to assume and the amount of time it is willing to devote to figuring that out. A hospital has to wade through a lot of regulatory questions before deciding to let a journalist inside, and that means tapping into legal resources that might be scarce or expensive. And if a decision is made to grant access, there’s always a chance that something could go wrong and a privacy breach could happen. “When you look at the incentives for hospitals, it is much easier to decline the request and avoid any risk of penalty,” Greene said. “There is not much in it for them to spend the time and resources to navigate HIPAA to find a way to do this.”

This might be a good time to remind ourselves that HIPAA applies to health care providers, not journalists.

This article originally appeared in Covering COVID-19, a daily Poynter briefing of story ideas about the coronavirus and other timely topics for journalists. Sign up here to have it delivered to your inbox every weekday morning.

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Al Tompkins is one of America's most requested broadcast journalism and multimedia teachers and coaches. After nearly 30 years working as a reporter, photojournalist, producer,…
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