QUESTION: A physician called requesting a patient transfer to our Hospital. We would like to start recording these types of calls for patient safety and quality purposes. Does the hospital have to obtain the callers’ consent prior to recording these communications?
ANSWER: The hospital’s obligation to get a caller’s consent prior to recording the communication depends on whether the hospital is located in a “one-party consent” or an “all-party consent” state.
One-party consent states allow a person to record so long as they are a party to the communication and consent to the recording. In this case, the physician making the call does not have to be informed that the call is being recorded since the physician receiving the call has already provided the necessary consent. The hospital may, as a courtesy, include an automated message at the top of the call that informs the physician making the transfer request that the conversation will be recorded.
On the other hand, states that have adopted “all-party consent” recording laws prohibit the use of devices to record absent the consent of all parties involved in the communication. Therefore, if you find yourself in an “all-party consent” state, then the hospital will be required to disclose that it is recording the call prior to the start of the conversation.
When deciding whether and how to record patient transfer calls, keep in mind that the hospital is obligated under the HIPAA Privacy Rule to protect patient health information shared during these communications. Therefore, it is important that the hospital determine how it will record and how it will store these communications. If, for instance, the hospital decides to contract with another entity to record and store these communications, then the entity will likely be furnishing business associate services. In this case, it would necessary for the hospital and the entity to enter into a business associate contract to ensure that the entity is safeguarding these communications in a manner appropriate under HIPAA.