The growth of social media platforms has introduced a seemingly endless variety of avenues through which to share pictures and videos with friends and other users. While these platforms have enhanced the ability of users to share information, they also may serve as tools to enable the abuse and exploitation of vulnerable individuals in health care settings. Following a slew of media reports highlighting the inappropriate photographing of residents by nursing home staff in recent years, the Director of the Survey and Certification Group at the Center for Medicare & Medicaid Services (CMS) sent a letter to the directors of state survey agencies on August 5 stressing the responsibilities of facilities and states with respect to the protection of residents.
The letter observes that all nursing home residents have a right to personal privacy of not only their bodies but also their personal space, which includes accommodations and personal care. According to the letter, “taking photographs or recordings of a resident and/or his/her private space without the resident’s, or designated representative’s, written consent is a violation of the resident’s right to privacy and confidentiality.”
The letter sets forth examples of impermissible conduct, such as “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.” Referencing various federal regulations governing staff treatment of residents, nursing aide competency, responses to alleged violations, and requirements for the administration and governing bodies of nursing homes, CMS emphasizes the obligation of nursing homes to train all staff regarding the prohibition on the use of cameras, smart phones and other electronic equipment to take or distribute humiliating or demeaning photographs and recordings of residents. The letter notes that in-service training does not relieve facilities of the responsibility to implement such policies and procedures and that the “nursing home must provide ongoing oversight and supervision of staff in order to assure that these policies are implemented as written.” Nursing homes also have an obligation to investigate any allegations of abuse and to report them to the appropriate law enforcement agencies when necessary.
The letter also debuts a set of enhanced state surveyor responsibilities effective as of September. Among these, surveyors must request and review nursing home policies and procedures governing photography and videography by staff members, and in the event of a complaint, surveyors must conduct an on-site investigation to determine whether the nursing home is in compliance with federal regulations. If the surveyor determines that a facility worker violated a resident’s rights, the state must report the findings within 10 days to the administrator of the facility where the incident occurred, the administrator of the facility where the worker is currently employed, the responsible worker’s licensing authority and, if applicable, the nurse aide registry.
The letter demonstrates that regulators are increasingly attuned to the privacy concerns of nursing home residents and places nursing home administrators on notice that they need to be vigilant in training and in monitoring the activities of their staff.