CMS Instructs Nursing Facilities To Protect Residents From Unauthorized Photographs and Video Recordings

On August 5, 2016, CMS released Survey-and-Cert-Letter-16-33.pdf. In that letter, CMS noted that unauthorized photographs or video recordings of residents could result in violations of resident privacy, and could, in certain circumstances, be construed as abuse. In addition to these compliance issues under the Requirements of Participation for Long Term Care Facilities, the unauthorized use and disclosure of such photographs and videos also can result in violations under the HIPAA Privacy Rule. CMS has instructed state survey agencies, such as the Pennsylvania Department of Health, to conduct a review of facility policies designed to prevent these unauthorized actions. Surveyors are expected to review policies during the next standard survey of each facility, and during subsequent surveys as warranted.

We encourage clients to develop a "Social Media Policy" update to address issues regarding the use of cameras, cell phones and other devices, and the corresponding posting of resident pictures and videos. Nursing facilities also should update their current policies on abuse prevention to account for these issues, and provide training to staff.

If you require assistance in developing a Social Media Policy, or updating your current abuse prevention and reporting policies, please do not hesitate to contact David Marshall or Tanya Harris at (717) 620-2424.