Baby Pictures at the Doctor’s? Cute, Sure, but Illegal (NOTE: Some call it “HEAPA”!)
Pictures of smiling babies crowd a bulletin board in a doctor’s office in Midtown Manhattan, in a collage familiar to anyone who has given birth. But the women coming in to have babies of their own cannot see them. They have been moved to a private part of the office, replaced in the corridors with abstract art.
“I’ve had patients ask me, ‘Where’s your baby board?’ ” said Dr. Mark V. Sauer, the director of the office, which is affiliated with Columbia University Medical Center. “We just tell them the truth, which is that we no longer post them because of concerns over privacy.”
For generations, obstetricians and midwives across America have proudly posted photographs of the babies they have delivered on their office walls. But this pre-digital form of social media is gradually going the way of cigars in the waiting room, because of the federal patient privacy law known as Hipaa.
Under the law, the Health Insurance Portability and Accountability Act, baby photos are a type of protected health information, no less than a medical chart, birth date or Social Security number, according to the Department of Health and Human Services. Even if a parent sends in the photo, it is considered private unless the parent also sends written authorization for its posting, which almost no one does.
So doctors — especially those at large institutions with internal compliance officers — have been stripping down the walls or, as Dr. Sauer did at the Center for Women’s Reproductive Care, hiding the photos, often with a bit of sadness. (The babies on the office’s website are models.)
While privacy is a virtue, the doctors say, the law could make more sensitive distinctions.
“For me, the face of a baby, that is really an anonymous face,” said Dr. Pasquale Patrizio, director of the Yale Fertility Center in New Haven. “It was representative of so much happiness, so much comfort, so much reassurance. It is purely a clinical office now.”
Although his center no longer displays the photos, parents insist on sending them in, Dr. Patrizio said. “We are scanning them and leaving them in their own charts — their encrypted charts,” he said, chuckling.
Most people know Hipaa as the law responsible for the “Notice of Privacy Practices,” the blizzard of forms given to patients to sign, informing them of the ways in which their protected health information may be used. The law was enacted in 1996, but the banishment of baby photos has accelerated since 2009, when an economic stimulus bill provided money to promote electronic health records and let the government step up enforcement of the rules.
Rachel Seeger, a spokeswoman for the Office for Civil Rights of the Department of Health and Human Services, confirmed that the displays were illegal. “A patient’s photograph that identifies him/her cannot be posted in public areas” unless there is “specific authorization from the patient or personal representative,” she wrote in an email.
By specific authorization, Ms. Seeger said, she meant an official Hipaa-compliant form, including elements like an expiration date. She was not aware, however, of any medical office that had been fined over the issue.
There are, predictably, degrees of compliance with the law. Fertility centers, where baby walls can be a subtle form of marketing, are the most likely to have abolished them. Though those doctors cite the Hipaa law as the reason, they also worry about a photo accidentally betraying a confidence, especially in an era when Instagram and Facebook can quickly broadcast any photograph.
“A lot of times the baby is being held by a mother,” Dr. Sauer, whose office specializes in infertility cases, said. “Most people do not disclose that they used an egg donor.”
At the University of Southern California’s fertility program, the lab area has photos of embryos next to the babies they produced. But in the public area, art has replaced baby pictures.
At Midwifery of Manhattan, on the other hand, baby photos cover two big walls like wallpaper. “I love this custom,” Sylvie Blaustein, the head midwife, said. “I worry that people are going to be afraid to do it.”
Dr. Jacques Moritz, director of the division of gynecology at Mount Sinai Roosevelt in Manhattan, still displays baby pictures in an exam room. “There’s not a day that goes by that somebody doesn’t come in with a picture of the kid — up until 17, 18, 19 and 20,” he said.
“I think we have to have some common sense with this Hipaa business,” Dr. Moritz continued. “To leave medical records open to the public, to throw lab results in the garbage without shredding them, that makes sense” to prohibit. “But if somebody wants to post a picture of something that’s been going on for a millennium and is a tradition, it seems strange to me not to do that,” he said.
Dr. Moritz said he believed that parents who sent in photos implicitly allowed them to be posted. That may be true, but the law still does not allow it. “Unfortunately, there’s no concept of implied authorization for this type of use,” said Clinton Mikel, chairman of the American Bar Association’s eHealth, Privacy & Security Interest Group.
Other obstetric practices try to thread the needle. Some keep the baby photos in an album that patients can choose to open or not. (Still illegal, said Ms. Seeger of the health department.) Or they separate the waiting areas for obstetric and gynecological patients, though not necessarily with Hipaa in mind: They don’t want women who are not interested in children or who have fertility problems to be bothered.
“The one thing they want more than anything else is a baby, but one thing they don’t want to look at is someone else’s baby,” said Dr. Randall R. Odem, chief of the division of reproductive endocrinology and infertility at Washington University School of Medicine in St. Louis.
Downtown Women OB/GYN Associates, in SoHo, took down its baby wall several years ago. But staff members were flummoxed when a patient posted a picture of her baby on the office Facebook page. Was that O.K.?
“I think we ultimately did take it down,” Alex Dettmer, the practice manager, said. “One of our compliance companies said, you might as well play it safe.”