The Department of Health & Human Services Centers for Medicare & Medicaid Services (CMS) has released a new Memorandum that aims to protect resident privacy and prevent mental abuse by nursing home staffs. The memorandum from the Center for Clinical Standards and Quality/Survey & Certification Group (the “Group”) follows recent media reports that brought to light occurrences of nursing home staff taking unauthorized photos and video recordings of their residents and then sharing the content on social media networks or via multimedia messaging systems.

As stated in the memorandum, “Nursing homes must establish an environment that is as homelike as possible and includes a culture and environment that treats each resident with dignity and respect. … Treating a nursing home resident in any manner that does not uphold a resident’s sense of self-worth and individuality dehumanizes the resident and creates an environment that perpetuates a disrespectful and/or potentially abusive attitude towards the resident(s).”

The new memorandum has two primary functions—the first focuses on freedom from abuse and the second on facility and state agency responsibilities. Both are summarized below.

Freedom from Abuse
Each resident has the right to be free from all types of abuse, including mental abuse or abuse that is facilitated or caused by nursing home staff taking or using photographs or recordings in any manner that would demean or humiliate a resident(s). In the Memorandum, the Group’ states that the nursing home staff includes employees, consultants, contractors, volunteers, and other caregivers who provide care and services to residents on behalf of the facility.

Facility and State Agency Responsibilities
To curb abuse this perceived abuse, the Memorandum directs survey teams conducting both the Traditional survey and QIS, to request and review the facility ‘s policies and procedures that prohibit staff from taking, keeping or distributing photographs and recordings that demean or humiliate a resident. Specifically, the memorandum outlines resident’s rights to privacy and confidentiality:

  • A nursing home resident has the right to personal privacy of not only his or her own physical body, but also of his or her personal space, including accommodations and personal care. Taking photographs or recordings of a resident or his or her private space without the resident’s or designated representative’s written consent, violates the resident’s right to privacy and confidentiality. Examples include staff taking unauthorized photographs of a resident’s room or furnishings (which may or may not include the resident), or a resident eating in the dining room, or a resident participating in an activity in the common area.
  • Each resident has the right to privacy and confidentiality for all aspects of care and services. Only authorized staff directly involved in providing care and services for the resident should be present when care is provided, unless the resident consents to other individuals being present during the delivery of care. Taking unauthorized photographs or recordings of residents in any state of dress or undress is a violation of a resident’s right to privacy and confidentiality even if such recording are not distributed through multimedia messages or on social media networks. This prohibition includes photographs and recordings of residents’ body part without the resident’s face whether it is the chest, limbs, or back, labeling resident’s pictures and/or providing comments in a demeaning manner, directing a resident to use inappropriate language, and showing the resident in a compromised position.
  • If a photograph or recording of a resident, or the manner that it is used, demeans or humiliates a resident(s), regardless of whether the resident provided consent and regardless of the resident’s cognitive status, the surveyor must investigate Federal requirements related to abuse.
  • Mental abuse may occur through either verbal or nonverbal conduct which causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation, or degradation. Examples of verbal or nonverbal conduct that can cause mental abuse, include but are not limited to, nursing home staff taking photographs or recordings of residents that are demeaning or humiliating using any type of equipment (e.g., cameras, smart phones, and other electronic devices) and keeping or distributing them through multimedia messages or on social media networks. Depending on what was photographed or recorded, physical and/or sexual abuse may also be identified.

What Now? Three Next Steps for Nursing Homes

There are several next steps for nursing homes to take to mitigate risk and to adhere to these new standards, as outlined in the memorandum.

  1. Each nursing home must develop and implement written policies and procedures that prohibit all forms of abuse, including mental abuse.
  2. Each nursing home must review and revise their written abuse prevention policies and procedures to include and ensure that nursing home staff are prohibited from taking or using photographs or recordings in any manner that would demean or humiliate a resident. This would include using any type of equipment (g., cameras, smart phones, and other electronic devices) to take, keep, or distribute photographs and recordings on social media.
  3. Each nursing home must provide training on abuse prohibition policies for all staff who provide care and services to residents, including prohibiting staff from using any type of equipment (g., cameras, smart phones, and other electronic devices) to take, keep, or distribute photographs and recordings of residents that are demeaning or humiliating.

An attorney can help with the review of current policies and the drafting of additional polices to help ensure compliance with federal regulations. At a minimum, all policies should be reviewed and updated to include a digital media.

Read the Center for Clinical Standards and Quality/Survey & Certification Group Aug. 5, 2016 memorandum “Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff.”