Via an August 5, 2016, letter, the Centers for Medicare & Medicaid Services (CMS) instructed State Survey Agency Directors to survey “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),” including posting on social media. States must implement these survey instructions 30 days from the date of CMS’s letter. Notably, the letter specifically states that “staff” is not limited to employees but also includes “consultants, contractors, volunteers, and other caregivers who provide care and services to residents on behalf of the facility.”
Background & Overview of Letter
CMS cites recent media coverage of nursing home staff posting unauthorized and often unflattering or demeaning photographs or videos of residents to social media as a reason for issuing the letter. The issue has received significant attention in recent months. Senator Charles Grassley, R-Iowa, Chair of the Senate Judiciary Committee, has sent letters to the Department of Justice, HHS Office for Civil Rights, and to social media companies raising concerns. In June, the American Health Care Association issued a letter providing relevant guidance to its membership, including tips for reviewing social media policies, conducting social media training, and investigating social media abuses.
In its recent letter, CMS states that taking, posting, and sharing such unauthorized images of residents constitute abuse in violation of multiple Federal provisions, including 42 CFR § 483.13 (b)–(c), the Conditions of Participation for nursing homes related to patient freedom from abuse and staff treatment of residents. Further, an image or video can give rise to an investigation for abuse if the “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 letter also addresses the implications to a patient’s right to privacy and confidentiality. The letter specifies that simply taking unauthorized photographs or videos violates a resident’s right to privacy and confidentiality, independently of whether the images are posted or shared. This privacy right extends to images of “a resident’s room or furnishings (which may or may not include the resident),” and beyond the resident’s private space into spaces typically considered more public, such as the dining room or common area. In addition to violating the federal Conditions of Participation for nursing homes, posting photographs or videos of residents without proper authorization can result in a HIPAA violation and trigger HIPAA breach analysis and reporting requirements.
Nursing homes should expect survey or reviews of relevant policies and procedures to begin as soon as early September 2016 and to be a part of standard surveys, whether a Traditional or Quality Indicator Survey. Per CMS, surveyors are to “implement this policy until each nursing home has been surveyed for the inclusion and implementation of such policies.”
Steps to Take Now
Nursing homes should be prepared to produce policies addressing social media use at the next survey and should take steps now to ensure that their policies, procedures, training, and implementation are compliant. In light of the coming scrutiny on social media practices in particular, nursing homes should take the following steps:
- Review Policies: Review existing policies and procedures that address taking, using, or posting photographs or recordings of residents, including how they address volunteers.
- Ensure that the policies “prohibit all forms of abuse, including mental abuse” and appropriately “prohibit staff from taking, keeping and/or distributing photographs and recordings that demean or humiliate a resident(s).”
- Ensure that the policies expressly apply to “consultants, contractors, volunteers, and other caregivers who provide care and services to residents on behalf of the facility,” in addition to employed staff.
- Review and Refresh Training: Review existing photography and social media training of staff (including volunteers), and consider refresher training (or develop such training if it does not already exist).
- Ensure that all staff providing care and services to residents have been trained on social media and abuse prohibition policies.
- Ensure that training includes reporting responsibilities and procedures as well.
- Review Implementation: Nursing homes have an obligation to “provide ongoing oversight and supervision of staff in order to assure that these policies are implemented as written.”
- Confirm that the response process is being followed as required to “report all allegations of abuse, provide protections for any resident involved in the allegations, conduct a thorough investigation, implement corrective actions to prohibit further abuse, and to report the findings as required.”
- Review any social media or other websites (e.g., Facebook, LinkedIn, Snapchat, Instagram, etc.) that exist for the facility to evaluate any posts that may have been made by staff (including volunteers).
Survey teams will be requesting and reviewing nursing homes’ policies and procedures, as well as evaluating training and implementation, starting in early September 2016. Nursing homes should take steps now to ensure that they are prepared for this review.
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