Protecting Resident Privacy – Considerations for Photography, Audio and Video Recording

PUBLISHED: Jan 23, 2019
Relevant to: Long Term Care

The explosion of smart phones and social media apps like Facebook, Instagram and Snapchat make taking and posting pictures a normal activity these days. But the Centers for Medicare and Medicaid Services (CMS) is clear in their guidance – taking and posting unauthorized photos of nursing home residents is a violation of resident rights.

According to CMS, every nursing home resident has the right to personal privacy of not only his/her own physical body, but also of his/her personal space, including accommodations and personal care. 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 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), or a resident eating in the dining room, or a resident participating in an activity in the common area.

CMS Conditions of Participation (CoPs) protecting resident rights include:

  • 42 CFR §483.13 (b) Abuse (tag F223) - The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.
  • 42 CFR §483.13(c) Staff Treatment of Residents (tag F223) - (1) The facility must— (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.
  • 42 CFR §483.13(c) Staff Treatment of Residents (tag F226)- The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

In order to ensure resident rights are being protected and your facility is in compliance with CMS CoPs take the following steps:

  • Develop and implement written policies and procedures that prohibit all forms of abuse, including mental abuse.
  • Ensure that written policies address abuse prevention and specifically the taking of or using photographs or recordings in any manner that would demean or humiliate a resident(s).
  • Note: This should include the use of any type of equipment (e.g., cameras, smart phones, and other electronic devices) to take, keep, or distribute photographs and recordings on social media.
  • Provide education and training to all staff, specifically addressing:
  • Prohibition of staff using any type of equipment (e.g., cameras, smart phones, and other electronic devices) to take, keep, or distribute photographs and recordings of residents or thier personal living arreas.
  • Note: Simply providing in-service education is not enough – nursing homes must provide ongoing oversight and supervision of staff in order to assure staff are complying with organizational policies.

Included with today’s notice are example policies and procedures that address resident rights with regards to photographs, audio and video recording.

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