Recently, I wrote a blog posting how residents at a Minnesota nursing home were subjected to abuse as the result of humiliating and degrading images of them that were published by nursing home staff on social media, apparently as some type of sick humor. Fortunately, through a number of articles in the press, the Department of Health and Human Services (DHHS) and Centers for Medicare & Medicaid Services has seen fit to take action warning nursing homes of the consequences that they may suffer if their staff violate resident privacy rights by publishing photographs, audio recordings, and/or video in a public forum, such as social media. A copy of the August 5, 2016 memo (the “Memo”) from the Director, Survey and Certification Group, can be seen here.
Key Points from the Director’s Memo
Key points and requirements from the Memo include the following:
- All nursing home residents have Freedom from Abuse, including mental abuse. Taking and sharing degrading images on social media or in any form violates this right.
- As part of the survey process for facility compliance, nursing home policies against such exploitation of residents will be reviewed, as will measures that the nursing home is undertaking to ensure compliance.
- Each facility must specifically provide training on abuse prohibition to all staff who interact with the care of patients.
Affirming Resident Rights to Privacy, Confidentiality, and Freedom from Abuse
The Memo reinforces the right of nursing home residents to privacy and confidentiality, and states that taking photographs, among other actions, without a resident’s consent violates their right to privacy. With respect to abuse prohibition, the memo specifies that:
If a 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 surveyor must investigate Federal requirements related to abuse at F223 and F226.
F223 – F226 are as follows:
- 42 CFR §483.13 (b) Abuse (tag F223) – The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.
- 42 CFR §483.13(c) Staff Treatment of Residents (tag F223) – (1) The facility must— (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.
- 42 CFR §483.13(c) Staff Treatment of Residents (tag F226)- The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
Facilities Must Now Report Resident Abuse by Means of Social Media Degradation
The Memo provides that:
The facility must 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.
Additionally, facilities must make all staff aware of the internal reporting requirements, such as the duty to report to a facility administrator instances of social media abuse. Administrators must additionally undertake an investigation as to the claim of abuse, as well as to determine what preventative measures must be implemented.
Reporting Crimes Against Residents
Section 1150B of the Social Security Act requires that certain facilities administrators and others timely report any suspicion of crimes committed against residents to a law enforcement agency and to the applicable State Survey Agency (SSA). Failure to adequately report such crimes can be punishable by fines, notwithstanding that the individuals involved in the offenses may be criminally prosecuted.
Requirements for State Survey Agencies
The Memo directs that all state survey agencies immediately begin taking action to contact every nursing home facility to document policies, procedures, training, and other efforts to be put in place to better safeguard the rights of residents to privacy and from being degraded through unauthorized use of photographs, video, or audio on social media.
We Applaud the Efforts Being Taken
Formal procedures have been long overdue.
If a loved one has been subjected to humiliation through the unauthorized use of photographs, video, or audio on social media, please call us immediately. We seek justice for those who are unable to do so themselves.
