Advances in technology have made direct observation by video recording or live-feed easy and affordable, allowing the most financially limited programs to conduct direct observation this way. It is not surprising, then, that a large number of family medicine residency programs use some form of video recording or live-feed direct observation.
What is surprising is the absence of or only passing reference to the issues of informed consent, patient authorization, and procedural guidelines related to video recording and live-feed precepting in the examining room, particularly in the age of HIPAA.
The culture of a teaching environment is oriented to the benefit of the teaching method in achieving the desired outcome. But I fear, in this teaching culture of direct observation, the benefits of a preferred teaching method have seduced the profession and its professional organizations into a rationalized justification for avoiding an open and full review of the patient’s informed consent and right to privacy in this process by those designated and trained to do so—the legal department/compliance officer.
When I joined my newly accredited residency program and attended several professional conferences, I quickly learned of the ACGME requirement for direct observation and the benefit of a method that presented the doctor-patient encounter in its most natural form. I proposed the implementation of video recording or live-feed precepting to my program director, who had recently attended an ABFM Program Director’s Conference and gotten the same message from them about the importance and benefit of video observation. We agreed to prepare a proposal to present to our legal department/compliance officer.
To prepare, I used the STFM Resource Library listserv to contact the members of an STFM Group, who not only responded but forwarded copies of their authorizations and procedures. I summarized those responses and forwarded them to our legal folks. The lawyers proceeded to contact compliance officers at two programs in our region. They reported the legal staff at those institutions had no idea such a process was happening and were concerned to hear of it.
Assuming this was an unfortunate coincidence, I returned to the listserv and asked the Group to forward their legal department contacts. The responses were nearly unanimous in indicating video precepting authorizations and/or procedures for maintenance of private health information contained on recordings were either not reviewed, or had not been reviewed in many years, by their compliance officer and they preferred to stay “under the radar.” Many responses were in the order of “We have been doing it for years,” “Don’t let the legal people get you down,” or even “The previous director did something about it, but we aren’t sure what.”
These examples are not unique and are reflective of many well-intentioned programs. One such program, presenting at the 36th Forum for Behavioral Science in Family Medicine, that utilizes live-feed observation indicated they only obtain verbal permission, with the justification that live-feed observation is essentially the same as in-room precepting. In discussing their system it was acknowledged that the feed can be recorded with the flip of a switch. Should this potential for recording be shared with the patient? Secure maintenance of private health information is also an issue. In a related conversation with a colleague at the Forum about their video recording use, they acknowledged a recording is passed among the residents and faculty for review without clear procedural rules or monitoring of the process.
While programs have the good goal of ensuring the highest level of training, they are running fast and loose with the legal and ethical application of patient privacy law. Simple authorization does not meet the full meaning of informed consent, and good intentions cannot be substituted for the establishment and rigorous maintenance of procedures to ensure the protection of a patient’s private health information under HIPAA.
Can we, as a profession, leave our heads in this legal/ethical sand, pursuing good training while potentially violating the legal rights of our patients? Like it or not, HIPAA is the law: the standard by which we are measured regarding informed consent; and, for better or worse, it is the legal department/compliance officer who determines the application of that standard.
Individual programs should not bear the burden of determining the implementation of these issues. I believe we must move at the national level to close the divide between what is ethical and what is legal regarding video precepting methods and procedures. Family medicine as a profession, and its related professional organizations, must open a dialogue on establishing guidelines for video precepting that meet the legal requirements of informed consent and confidentiality of private health information.
I challenge the Boards of ABFM, ACGME, and STFM to initiate and lead this dialogue to establish clear guidelines for the legal and ethical use of this essential teaching tool in family medicine residency training.