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Snapchat, Facebook, and Instagram….Has Your Facility Addressed These Media in Your Resident Abuse Prevention Policies?  Now is the Time…the Surveyors are Coming!

Health Law Alert Randall R. Fearnow, Jaya F. White

Attention skilled nursing facilities! Does your facility address social media in its resident abuse prevention policies? If not, you better act fast…the clock is ticking! As of September 5, 2016, surveyors will be reviewing policies and procedures and will expect to find a prohibition on nursing home staff taking or using photographs or recordings in any manner that would demean or humiliate a resident.

The long term care profession is making headlines these days following reports of the use of social media to exploit residents, and The Centers for Medicare and Medicaid Services (CMS) has responded. On August 5, 2016, CMS released a memorandum, "Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff," (the CMS Memo). The CMS Memo provides that residents have the right to be free from all types of abuse, which includes mental abuse, defined to include "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[]." The CMS Memo advises that surveyors must conduct an abuse investigation "[i]f a photograph or recording of a resident, or the manner that it is used, demeans or humiliates a resident[], regardless of whether the resident provided consent and regardless of the resident’s cognitive status…". The CMS Memo declares that the use of photographs or recordings of residents is a violation of residents' rights to privacy and confidentiality under federal law. 

CMS further requires that facilities incorporate social media into a facility's abuse prevention policies. The policies must provide that facility staff are prohibited from taking or using photographs or recordings in any way that would demean or humiliate a resident, which includes using cameras and smart phones "to take, keep, or distribute photographs and recordings on social media." 

The CMS Memo reminds facilities that any allegation of abuse requires immediate reporting to appropriate individuals and agencies, along with an investigation to prevent further potential abuse. Based on the facility's findings, corrective actions must also be put in place. 

Now is the time to review your abuse prevention policies and procedures to confirm they are compliant with the latest CMS directive. 

For questions, please contact Randall R. Fearnow at randall.fearnow@quarles.com/(312) 715-5194, Jaya F. White at jaya.white@quarles.com/(312) 715-5242, or your local Quarles & Brady attorney.