CMS issued a letter to State Survey Agencies on August 5, 2016 in response to recent media reports highlighting occurrences of nursing home staff taking unauthorized photographs or video recordings of residents, sometimes in compromised positions, and posting the photographs on social media networks, or sending them through multimedia messages. The Letter states 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. This includes using any type of equipment (e.g., cameras, smart phones, etc.) and/or keeping or distributing them through multimedia messages or on social media.
Surveyors are instructed to investigate at F223 and F226 (Abuse) if a photograph or recording, or the manner it is used, is determined to demean or humiliate a resident, regardless of whether the resident provided consent and regardless of the resident’s cognitive status.
Surveyors are expected to initiate the following actions 30 days from the release of this memorandum:
- During the next standard survey, the survey team must request and review nursing home policies and procedures related to prohibiting nursing home staff from taking or using photographs or recordings in any manner that would demean or humiliate a resident(s).
- If the Survey Agency (SA) receives an allegation in the following circumstances, they must investigate onsite to determine whether the nursing home is in compliance with Federal requirements.
- Depending on the seriousness of the allegation, the SA must conduct an onsite investigation within 2 to 10 days. In addition, the SA must evaluate whether the allegation may require referral to law enforcement.
