Shannon Hartsfield Salimone is a Partner in Holland & Knight's Tallahassee office
On August 5, 2016, the Centers for Medicare & Medicaid Services released a memorandum indicating that survey teams will begin requesting and reviewing nursing home policies and procedures regarding photographing residents in a manner that would demean or humiliate them. The memo comes after a number of media reports of nursing home staff taking and distributing embarrassing photos and videos of long-term care residents via social media. The memo notes that nursing home residents have the right to personal privacy, which prohibits unauthorized photographs of the resident. The memo states that even photos that do not identify the resident, or images of the resident's room and furnishings, could violate the resident's right to privacy and confidentiality.
Nursing homes are expected to have policies and procedures in place that would prohibit staff from taking and using such images in a way that could demean or humiliate the residents. Staff must be trained on the policies. Survey teams have been instructed to request and review these policies and procedures during a facility's next standard survey.
Images of residents, if they identify the residents, could also have HIPAA implications. A nursing home's HIPAA risk analysis should consider whether staff use of social media could compromise the privacy or security of protected health information. To the extent that nursing homes do not already have policies and procedures, as well as staff training, to mitigate those risks, the facilities should undertake such measures immediately.
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