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Legal repercussions for posting about residents on social media are not limited to just a few

Recent media coverage tells a sad story about inappropriate usage of social media in long-term care settings¾one that details not only severe legal repercussions for facilities, but also major violations of resident privacy and cases of mental abuse. While privacy and abuse are not black and white matters, the issue of photographs, videos, and identifying information of residents being published on social media is: Don’t do it.

While this advice would seem to go without saying, cases including staff photographing residents with feces in their hand, nude residents or residents showering/engaging in sexual relations, and deceased residents and sharing them on their social media sites have become familiar headlines. The Joint Commission recently published a blog post “strongly urging all organizations including nursing homes to draft a social media abuse policy and train employees accordingly.”

In cases where inappropriate social media usage is discovered, the offenders are fired, face jail time or may be required to pay costly fees, facilities are vulnerable to lawsuits, and reputations are tarnished.

Protecting resident privacy and prohibiting abuse

Last year, the Centers for Medicare & Medicaid Services (CMS) publicly recognized this issue. In a memo titled Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recording by Nursing Home Staff, CMS clarifies that “Treating a nursing home resident in any manner that does not uphold a resident’s sense of self-worth and individuality dehumanizes the resident and creates an environment that perpetuates a disrespectful and/or potentially abusive attitude towards the resident(s). Federal nursing home regulations require that each nursing home provides care and services in a person-centered environment in which all individuals are treated as human beings.”

The memo also mandates that each nursing home must develop and implement written policies and procedures that prohibit all forms of abuse, including mental abuse. The agency considers abuse to include using photographs or recordings in any manner that would demean or humiliate a resident via any type of equipment (e.g., cameras, smart phones, and other electronic devices) to take, keep, or distribute photographs and recordings on social media. Investigations related to abuse fall under F223 and F226.

Examples of inappropriate photographs or recordings of a resident without his/her permission in his/her private space include, but are not limited to:

  • Staff taking unauthorized photographs of a resident’s room or furnishings (which may or may not include the resident)
  • A resident eating in the dining room
  • A resident participating in an activity in the common area

HIPAA violations

Another familiar headline these days is HIPAA, with HIPAA audits and enforcement on the rise and no signs of slowing down. Phase 2 of the HIPAA Audit Program began last year, uncovering violations in long-term care facilities left and right. Most recently, Memorial Hermann Health System (MHHS) in Southeast Texas agreed to pay $2.4 million to settle a potential HIPAA violation due to revealing a patient’s name in a press release. In 2015, a patient at one of MHHS’ clinics presented an allegedly fraudulent I.D. card to office staff. Staff alerted authorities (remaining in compliance with HIPAA law) and the patient was arrested. Unfortunately for the facility, senior management approved a press release where the patient’s name was used in the title, breaching HIPAA privacy law and attracting costly legal repercussions.

In addition to the $2.4 million settlement, the Texas facility is also required to create a corrective action plan updating their HIPAA policies and procedures regarding staff training in patients’ protected health information.