October 17, 2016

A note from the State Long-Term Care Ombudsman:

In today's rapidly evolving world of technology, one of the concerns the Office of the State Long-Term Care Ombudsman is hearing about more frequently is the use of social media in long-term care facilities.

For many of us, taking pictures or videos with our phones and immediately posting them online or sharing them via text message is almost second nature; we are a visual society that thrives on instant gratification. Unfortunately, we do not always stop to consider how the subject of a photo may be impacted by our actions, and we sometimes forget that an individual's right to privacy may be at stake.

Residents' Rights Month is an ideal time to talk to staff about social media and the right to privacy, how the two intersect in the workplace and what an employee should do if he/she thinks a resident's rights have been violated.

It's not always an easy discussion, but it's a timely one, as evidenced by the Consumer Voice policy brief cited below. As always, if you have questions or would like additional guidance, please contact your Local Long-Term Care Ombudsman or call (866) 236-1430.

Deanna Clingan-Fischer, JD

Policy Brief:
Protecting Residents'/Tenants' Right to Privacy as it Relates to Social Media

On Aug. 5, 2016, the Center for Clinical Standards and Quality/Survey & Certification Group at the Center for Medicare & Medicaid Services (CMS) released a memo addressing recent media reports about nursing home staff taking unauthorized photographs and video recordings of nursing home residents. Some of these photographs showed the resident in compromising positions. The photographs were subsequently posted on social media networks, including Facebook, Snapchat and Instagram. Other photos were sent through text messaging multimedia services.

In the memo, CMS clearly outlined that "taking photographs or recordings of a resident and/or his/her private space without the resident's, or designated representative's, written consent, is a violation of the resident's right to privacy and confidentiality." Examples of this violation include "staff taking unauthorized photographs of a resident's room or furnishings (which may or may not include a resident), or a resident eating in the dining room, or a resident participating in an activity in the common area."

This guidance addresses staff actions and is issued in the context of resident abuse. CMS is sending a strong message that residents must be treated with dignity and respect in terms of their privacy and the privacy of their environment. By issuing this memo, CMS is reinforcing that resident dignity, confidentiality and other rights could be violated in the taking and use of photos, videos or other forms, and could potentially be considered abuse.

It is important that all residents feel comfortable in their environments, especially when it concerns their privacy. Advocates can use this memo as an opportunity to talk with their licensing and certification agency about the need to ensure that residents are protected from mental abuse and feel comfortable in their environments; to educate residents and family members about privacy rights; and to provide in-service training with facility staff.