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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.

Increased Scrutiny of Social Media Postings For HIPAA Compliance Likely

Sen. Tom Carper (D-DE) recently sent a letter to the Department of Human Services' Office of Civil Rights (OCR), which enforces HIPAA, citing his concerns for the apparently growing number of instances where nursing home employees have posted inappropriate pictures and videos of residents on social media platforms. Questioning how OCR is addressing this issue, Sen. Carper specifically instructed OCR to report on the number of complaints received on these incidents, any investigations undertaken, and the penalties levied. Senator Carper also requested details on OCR's plans to issue guidance to covered entities on social media mattes as they relate to HIPAA, and whether it has engaged in any discussions with CMS in conjunction with the proposed revisions to the Requirements of Participation for long term care facilities.

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