The U.S. Dept. of Health & Human Services Centers for Medicare and Medicaid Services (CMS) published a memo (Ref: S&C: 16-33-NH) Aug. 5, 2016, to state nursing home survey agency directors related to protecting resident privacy and prohibiting mental abuse related to photographs and audio/video recordings by nursing home staff. The memo is a response to recent media reports regarding inappropriate posting to social media of pictures of nursing home residents – namely a disconcerting report by ProPublica detailing 47 incidents in which workers shared photos or videos with friends or the public – these incidents involved both mistreatment of residents and inadvertent disclosure or patient health information. Within 30 days of the memo, surveyors are to implement changes to address these issues.

As pointed out in the memo, current regulations already prohibit unauthorized pictures or videos and videos or pictures that are used in a manner that demeans or humiliates a nursing home resident. In addition, current regulations require facilities to maintain policies regarding appropriate treatment of residents and training of staff about such policies. Further, nursing homes are required to ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property are reported within prescribed timeframes and thoroughly investigated and that corrective action is taken.

Although this regulatory framework already exists, and many facilities may implement policies regarding use of social media and phones and cameras by staff, CMS advises that

“each nursing home must review and/or 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(s). This would include using any type of equipment (e.g., cameras, smart phones, and other electronic devices) to take, keep, or distribute photographs and recordings on social media.”

Nursing home management must assure that all staff are aware of reporting responsibilities, including how to identify possible abuse and how to report any allegations of abuse. Further, CMS provides examples of steps that a facility may put in place immediately to prevent further potential abuse including, but not limited to: (i) staffing changes; (ii) increased supervision; (iii) protection from retaliation; and (iv) follow-up counseling for the resident(s).

Within 30 days of the CMS memo, surveyors are expected to, during the next standard survey of a facility (whether a traditional survey or quality indicator survey) request and review nursing home policies and procedures related to prohibiting nursing home staff from taking or using photographs or recordings in any manner that would demean or humiliate a resident(s). “This would include using any type of equipment (e.g., cameras, smart phones, and other electronic devices) to take, keep, or distribute photographs and recordings on social media.” All nursing homes will be surveyed for the inclusion and implementation of such policies.

To avoid potential harm to patients and ensure compliance with CMS requirements, nursing homes should take time to review existing policies regarding use of social media and electronic devices, implement any additional policies needed, and train staff to be aware of appropriate practices and how to report potential policy violations.