CMS Puts Spotlight on Protecting Privacy of Nursing Home Patients

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By Mindy Yochelson

Aug. 9 — The federal government wants state Medicaid officials to police nursing homes to ensure workers aren't taking unauthorized photographs or videos of residents.

State officials who inspect nursing homes for Medicare and Medicaid compliance must ensure that each nursing home has policies that prohibit staff from taking or distributing pictures or recordings that could demean or humiliate residents, the Centers for Medicare & Medicaid Services said in a memo to survey agency directors.

The Aug. 5 memo followed reports of nursing home staff posting photos on social media of residents “in compromised positions.”

Violating Rights

David R. Wright, director of the CMS's survey and certification group, said in the memo that “taking unauthorized photographs or recordings of residents in any state of dress or undress using any type of equipment,” violates residents’ right to privacy and confidentiality. The equipment includes cameras, smartphones, and other electronic devices, and keeping or distributing the information through multimedia messages or on social media networks.

Greg Crist, a spokesman for the American Health Care Association, called the situation a “serious issue.” He told Bloomberg BNA Aug. 9 that his group, which represents long-term and post-acute care providers, has worked on it for months, sending out kits and best practices to members.

The group distributed a training document after Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) raised concerns about improper social media use to executives at Facebook, Instagram and Snapchat ( see previous article ).

Grassley also had written to the Health and Human Services Office of Inspector General after ProPublica, which produces investigative journalism in the public interest, said it found 47 cases in the last four years of such photos posted on social media. Three institutions were in Grassley's home state of Iowa.

A spokeswoman for Grassley said he wrote to the OIG about the situation. The OIG said it alerted the 50 Medicaid fraud control units about the ProPublica investigation.

Grassley in an Aug. 8 statement praised the CMS memo and said he'll continue working on the problem with the CMS, the Justice Department, the Department of Health and Human Services and the industry.

Positive Side of Pictures

Sherrie Dornberger, executive director of the National Association of Directors of Nursing Administration in Long Term Care, told Bloomberg BNA Aug. 9 that the industry is having more problems with this because of the proliferation of mobile phones.

However, she said the policy could impede the ability to take “happy pictures” of residents.

The guidance won't allow pictures of any sort to be taken unless “there is prior authorization” for a resident to be photographed, she said.

J. Hudson Garrett Jr., editor-in-chief of the group's journal and master trainer, said “we're all in alignment with CMS's stance on this and I think its been long overdue.”

He added that “nursing leaders and executives must ensure that all facility staff and contractors receive proper training that is conducted both at the time of their employment start and then preferably annual as part of annual competencies.”

But some residents “desperately need human connection and you don't want the pendulum to go from one extreme to the other where there's no pictures,” Garrett said.

To contact the reporter on this story: Mindy Yochelson in Washington at myochelson@bna.com

To contact the editor responsible for this story: Kendra Casey Plank at kcasey@bna.com

For More Information

The CMS memo is at http://src.bna.com/hzb.

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