On August 5, 2016, the Centers for Medicare & Medicaid Services (CMS) issued guidance to nursing homes in a letter to state survey agencies (the Letter) that addresses nursing homes’ obligations to protect residents. The Letter focuses on potential psychosocial harm to nursing home residents caused by the sharing on social media of demeaning photographs or recordings of residents taken by nursing home staff. The Letter appears to have been issued partly in response to a recent investigation by ProPublica which found numerous instances of alleged abuse of nursing home residents connected to social media postings.

The Letter emphasizes in pertinent part that nursing home residents are entitled by law to:

• personal privacy and confidentiality of their personal and clinical records; and
• be free from verbal, sexual, physical, and mental abuse (which includes without limitation humiliation, harassment, threats of punishment or deprivation).

CMS specifically cites, as an example of mental abuse, taking photographs or recordings (using cameras, smart phones or other electronic devices) that demean or humiliate a resident and may be distributed through text messages or social media (e.g., on Twitter, Facebook, Instagram, Snapchat, or a combination of those and/or similar apps).

In the Letter, CMS reminds nursing homes of their ongoing obligation to protect residents, including by implementing and developing written policies and procedures that prohibit all forms of abuse of residents and providing training on such policies and procedures to all staff that provide care or services to residents. Nursing homes must prohibit staff from using any equipment to take, keep, or distribute demeaning or humiliating photographs or recordings of residents. Nursing homes are also required to thoroughly investigate, respond to, and report allegations of resident abuse, and are expected to foster an environment that encourages reporting without fear of retaliation.

The Letter directs state surveyors, starting in September 2016, to request and review nursing home policies and procedures that prohibit staff from taking or using (including by texting or posting on social media) photographs, videos, or other recordings in any manner that could demean or humiliate the resident of a nursing home. Therefore, nursing homes would be well-advised in the coming weeks to review, update and provide appropriate training to staff on resident abuse prevention policies and procedures in anticipation of heightened scrutiny from state survey agencies.

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