On August 5, 2016, the Centers for Medicare & Medicaid Services (“CMS”) issued a Memorandum discussing a nursing home’s responsibility to protect residents’ privacy, especially on social media. State survey agencies are to incorporate these standards in surveys beginning September 5, 2016.

CMS was motivated to issue the Memorandum by multiple examples of nursing home staff taking pictures of residents, “sometimes in compromised positions,” and then posting them on social media. It is intuitive that embarrassing pictures are prohibited, but the scope of protections are broader than one might think.

Federal regulations require nursing homes provide “homelike” care that “treats each resident with respect and dignity.” Privacy and confidentiality includes the following:

42 CFR §483.10(e)Privacy and Confidentiality (F164) – the resident has the right to personal privacy and confidentiality of his or her personal and clinical records. Personal privacy includes accommodations, medical treatment, written and telephone communications, personal care, visits, and meetings of family and resident groups, but this does not require the facility to provide a private room for each resident;

Per the Memorandum, the right to privacy extends beyond a resident’s physical body to include “his/her personal space, including accommodations and personal care.” This means staff must obtain a resident’s authorization to take a picture of the resident’s room even if the resident is not in the room. Staff might be tempted to show the home’s caring atmosphere by posting pictures of residents participating in group activities in a common area or socializing while dining. But the Memorandum makes clear that staff must obtain prior authorization before taking even these types of photographs.

The right to privacy and confidentiality impacts who may be present when staff care for residents. Each resident must receive individualized care that protects his/her dignity and respect. Hence, only necessary personal should be present, and care should be taken to drape or clothe the resident to prevent unnecessary exposure.

The Memorandum directs nursing homes to review and/or revise their written policies and procedures to ensure nursing home staff abide by privacy and confidentiality regulations.  Since they are facing increased scrutiny in these areas, I recommend nursing homes take the following steps:
• review and revise written policies to ensure compliance;
• conduct staff training to ensure the staff understand the scope of the policies and the consequences of failing to comply; and
• designate a staff member to ensure the above steps are implemented.

Please contact me if you have questions regarding the Memorandum or need your policies and procedures reviewed.