By Maureen T. DeSimone
On Friday, August 5, 2016, the Centers for Medicare and Medicaid Services (“CMS”), the federal agency that oversees nursing home regulations, issued a memorandum to State Survey Agency Directors. This memorandum was a reaction to recent news reports indicating that nursing home staff has been taking photographs and video of patients, some of which were exploitative, and depicted the residents in demeaning and compromising positions. ProPublica, a nonprofit public interest journal, reported nearly 50 instances in which nursing home employees had posted photographs of patients. It was noted, in a May 2016 investigation report, that at one Los Angeles facility, a nursing home employee uploaded a video on Instagram of another employee “passing” gas on the face of one of the residents. The employee videographer admitted in an interview that this occurred every month. Propublica also reported that a nurse in Iowa sent a Snapchat of a resident with dementia covered in feces with the caption “shit galore” to other employees. ProPublica noted that while Iowa had a statute prohibiting sexual exploitation of nursing home residents, the statute only applied if the photograph showed the resident’s genitals, and this did not. ProPublica also identified a story in Colorado where a young volunteer uploaded a photograph on Snapchat of a 108 year old resident urinating. These are just a few examples.
Not only are these examples outrageous, degrading, and, frankly, unsettling, they also raise a lot of issues including both violations of privacy and the Health Insurance Portability and Accountability Act (“HIPAA”) protections. Current regulations protect residents from abuse (42 CFR §483.13); the Federal requirements aim to protect residents from abuse arising out of use of different media, such as cellphones, video cameras, and, specifically, posts on social media platforms. CMS protects residents of nursing homes from “all types of abuse, including mental abuse.” Mental abuse is defined as including “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).” CMS stresses that nursing homes have the responsibility to uphold and protect residents’ privacy and to make the environment and culture as “home-like” as possible. CMS warns that treating residents in this manner dehumanizes them and creates an environment that is potentially abusive to them. In addition to abuse and privacy concerns, these photographs often depict patient’s personal healthcare and their corresponding treatment: they are being exploited by the very people who are supposed to be both treating them and protecting them from such harm.
A nursing home resident has a reasonable expectation of privacy with respect to his or her own person, space, and healthcare. CMS states that any photographs taken by a nursing home staff without the resident’s, or his/her representative’s, consent violates the new regulations. This includes photographs of the resident’s room or furniture, etc., even when the resident him/herself is not depicted. The regulations also do not allow staff to take photographs of residents eating in the dinning room, nor participating in any activity in the common area without consent, even if these activities are unrelated to health or treatment of the patient.
Each nursing home will be required to provide training to all staff members who provide care and other services to residents, including prohibiting staff from using cameras, smart phones, and other electronic devices to “take, keep, or distribute photographs and recordings of residents that are demeaning or humiliating.” Further, each nursing home will have to develop policies regarding the same, as well as provide continued oversight and supervision to ensure that the policies are being strictly followed. Additionally, nursing homes will have to make sure all employees are aware of the reporting requirements and punishment for staff that do not report violations.
On September 5, 2016, 30 days following the release of CMS’s memorandum, State Survey Agencies were required to begin surveying and investigating nursing home facilities. This includes onsite investigations to determine if each nursing home is in compliance with the Federal requirements.
Depending on the severity of the allegation reported, the State Survey Agency may even be required to conduct an onsite investigation within 2 and 10 days, and will determine whether law enforcement needs to be involved.
To be clear, this is not exactly a new regulation. This is more a reiteration or clarification of an already established regulation, specifically, the regulation against exploitation and abuse of nursing home residents. With recent news coverage, CMS sought to take an immediate stand in order to enforce its regulations. Taking degrading and humiliating photographs and videos of residents was always against regulations, but CMS, apparently, naively, failed to think that it needed to be specifically addressed. CMS also wanted to help residents have an established recourse since presently, if they tried to sue the facility in court they could be up against the issue that while this behavior is outrageous, it may not be found to have been reasonably foreseeable by the nursing home. Now, with this memorandum, CMS is saying, essentially: “hey nursing homes—you’re on notice, and you’re on the hook.”
The aim is really to protect residents from degrading photographs and video, however, the reach will be greater. It will extend even to innocent group photographs of residents taken by employees eating lunch together or participating in card games. It seems that the regulations will require that before each photograph is taken there must be written consent. It seems that a general consent form to photographs taken and/or posted on social media by employees will not suffice. As a result, residents who do not have legal capacity to consent on their own behalf will either not be able to participate in photographs or their representatives will need to be contacted prior to every photograph being taken.
Since nursing homes are the residents’ home, it seems that many would want to have photographs displayed of them and their friends. While the focus is on social media posts, any unauthorized photograph taken by an employee of a patient is prohibited. It seems that a resident may be able to organize a group photograph, and take the photograph him or herself, but an employee would not be able to take it for them without written consent. Further the CMS memorandum does not seem to address unauthorized or even degrading photographs of a patient taken and/or posted by another patient. The reason is likely that CMS regulates nursing home facilities and its employees, so only their behavior concerns CMS. Perhaps these requirements are overreaching, but it seems that it may be the only way to stop employees from abusing patients. If employees are not allowed to use their phones or cameras at all, perhaps we will see a decline in this form of abuse.
Student Bio: Maureen is night student at Suffolk Law and expects to graduate in May 2018. She has a Certificate in Paralegal Studies from Suffolk University and a B.A. in English with a minor in French. She has been working as a litigation paralegal since May 2010.
Link: http://blogs.duanemorris.com/healthlaw/2016/08/23/government-cracks-down-on-nursing-home-use-of-social-media/
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
