By Eric Carlson and Fay Gordon
In late 2015, a ProPublica investigation reported 37 incidents of long-term-care employees (employed by nursing homes and assisted living centers) sharing photos or videos of residents on social media, without the resident’s consent. In two-thirds of the incidents, the resident was unclothed, sitting on the toilet and-or being mocked by facility employees. In response to the report, three U.S. Senators have asked for increased federal oversight of privacy violations in long-term-care facilities.
The most troubling incidents share a perverse pattern: the employee takes an explicit photo of a resident, nude or in a private situation, and posts it to Facebook or Snapchat. The resident often has dementia or a comparable cognitive limitation, and is effectively unaware of the violation. As ProPublica points out, the residents’ lack of awareness allows the violations to happen in the first place, and likely leads such violations to be underreported.
Nursing Facility Law Updates in the Offing
Federal nursing facility law does not directly address social media—not surprising, considering the bulk of the regulations were finalized in the 1990s. Long-standing regulations require a nursing facility to support residents’ dignity and respect. A broad revision of these regulations is due to be issued later this year.
Last year, in releasing a draft of those regulations, the federal government noted the potential misuse of cameras and social media, and explained that privacy violations through social media would be addressed by regulations proscribing abuse, sexual abuse, neglect and exploitation. Under language proposed in a draft regulation, a facility would be required to develop and implement policies that prohibit and prevent abuse, neglect and mistreatment of residents.
By contrast, federal law in general does not address quality of care in assisted living. State law sets assisted living rules, so these rules vary considerably from state to state. That being said, most assisted living rules include provisions relating to dignity and respect, and the incidents reported by ProPublica likely would be recognized as improper under any and all state assisted living laws.
Smart Phones a Double-Edged Sword
From a management point of view, one option to combat social media violations is to forbid an employee from carrying any photography-enabled electronic device into a resident’s room.
ProPublica published short descriptions of each incident, and several descriptions included the facility’s claim that the employee had violated such policies. Admittedly, having immediate access to a personal phone and camera is taken as a given in 2016, but that expectation can be reversed for facility employees who assist residents with dressing and bathing. Many hospitals have such policies in this area, although the policies have had to balance the risk of privacy violations against the benefit of cell phones used to share information with specialists and other authorized persons.
Another choice for facilities is to train employees on resident privacy and dignity. Following the incidents in question, several of the facilities identified by ProPublica provided staff with training on social media, confidentiality and privacy. You might think that any employee already would understand the inappropriateness of photographing an unclothed resident, but this may not be true across the board, given the willingness of some people to take and distribute inappropriate pictures of themselves and their friends.
Also, employees should be informed that taking and distributing any picture without the resident’s consent is a privacy violation, whether or not the resident is in a compromising position. Finally, the training could discuss the penalties (potentially including termination) for taking and distributing an inappropriate picture of a resident, for those employees who might understand the rules but be inclined to violate them.
Eric Carlson is a directing attorney and Fay Gordon is a staff attorney at Justice in Aging, a national organization with offices in Washington, D.C., Los Angeles, and Oakland.
Editor’s Note: This article appears in the July/August 2016 issue of Aging Today, ASA’s bi-monthly newspaper covering issues in aging research, practice and policy. ASA members receive Aging Today as a member benefit; non-members may purchase subscriptions at our online store or Join ASA.