As expected, state surveyors will now be focusing on long-term care facilities’ social media policies and procedures for staff as part of the survey process. This should come as no surprise as both the media and Congress have devoted significant time and attention to the increasing trend of employees posting sensitive resident information and disturbing photographs of residents to social media sites such as Facebook and Snapchat or through other forms of multimedia.

The guidance clarifies that taking photographs and recordings of a resident without the resident’s or his or her designated representative’s written consent is a violation of resident rights. Facility staff that must abide by these guidelines is defined broadly in the memorandum and includes employees, contractors, volunteers, and other third-party caregivers. Additionally, CMS provides guidance to surveyors in terms of looking at various “F” tags (226 and 223) if resident photographs or recordings are determined to demean or humiliate a resident — irrespective of whether the resident provided consent and regardless of the resident’s cognitive status. The memorandum also provides examples of what can be considered violations of a resident’s rights, including but not limited to “…photographs and recordings of residents that contain nudity, sexual and intimate relations, bathing, showering, toileting, providing perineal care such as after an incontinence episode, agitating a resident to solicit a response, derogatory statements directed to the resident, showing a body part without the resident’s face whether it is the chest, limbs, or back, labeling resident’s pictures and/or providing comments in a demeaning manner, directing a resident to use inappropriate language, and showing the resident in a compromised position.”  Further, surveyors are directed to apply the ‘reasonable person’ approach in situations where a resident cannot express him or herself due to a medical condition or cognitive impairment.

There are some immediate action items skilled nursing facilities would be well advised to take. First, long-term care providers should ensure that their written abuse prevention policies and procedures make it clear that taking and using photographs and videos of residents could constitute abuse depending on the content, as well as ensure that abuse prevention training specifically addresses these policies and procedures. Employers that do not already ban the use of cell phones and other devices capable of taking photographs and videos in resident areas should do so. Even more importantly, facilities must equally enforce these policies, not overlook violations, and appropriately discipline employees when violations occur. Facilities should also make sure there is a clear reporting process for allegations of abuse through social media. Providers should coordinate with their marketing departments to make certain that there are written consents in place from residents or their designated representatives for photographs or videos that may be used for marketing purposes and should review those photographs or recordings to make sure they do not run afoul of the CMS guidance. Facilities may want to reconsider the use of blanket authorizations for photographs and videos of residents and address authorizations on a case-by-case basis to ensure that consent is still valid and appropriate.

Attorneys at Goldberg Segalla have significant experience drafting and reviewing social media policies and addressing allegations involving staff violations of these policies and coordination with appropriate outside authorities. To discuss how we may be able to assist your facility with these issues, please contact Caroline J. Berdzik, chair of the Employment and Labor and Health Care practice groups.