A recent memorandum issued by the Centers for Medicare & Medicaid Services ("CMS") to state survey agency directors (the "Memorandum") discusses a nursing home's responsibility to protect residents' privacy, particularly with regard to social media. The Memorandum was issued following a series of media reports documenting the inappropriate posting of residents' photographs on social media by nursing home staff.

The Memorandum notes that all nursing home residents have the right to personal privacy and dignity, and that nursing homes must have policies and procedures in place to protect residents' rights. The Memorandum directs state survey agency directors to request and review a nursing home's privacy policies and procedures during a state survey to ensure that the policies prohibit nursing home staff from "taking or using photographs or recordings in any manner that would demean or humiliate a resident." The Memorandum also instructs state survey agencies regarding how to investigate allegations that a staff member has taken or distributed resident photographs in an unauthorized manner. State survey agencies are directed to incorporate these requirements into its surveys as of September 5, 2016.

In light of this guidance, we recommend that nursing homes:

  • review and revise their written privacy policies to ensure that the policies comply with the requirements that are discussed in the Memorandum, as well as the privacy requirements under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA");
  • educate staff members on such policies and the ramifications of failure to comply with such policies; and
  • provide ongoing oversight and supervision to ensure that the policies are carried out.