CENTERS FOR MEDICARE AND MEDICAID SERVICES
(CMS)
REFERENCE SURVEY AND CERTIFICATION:
S&C 16-33-NH
Memorandum Summary
Freedom
from Abuse: Each resident has the
right to be free from all types of abuse,
including mental abuse. Mental abuse
includes, but is not limited to, abuse that is
facilitated or caused by nursing home staff
taking or using photographs or recordings in
any manner that would demean or humiliate
a resident(s).
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REFERENCE SURVEY AND CERTIFICATION: 16-33-NH
(CMS) MEMORANDUM CONT’D.
Facility
and State Agency Responsibilities:
This memorandum discusses the facility and
State responsibilities related to the protection of
residents. Specifically, at the time of the next
standard survey for both the Traditional survey
and QIS, the survey team will request and
review facility policies and procedures that
prohibit staff from taking, keeping and/or
distributing photographs and recordings that
demean or humiliate a resident(s).
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REFERENCE SURVEY AND
CERTIFICATION: 16-33-NH
(CMS) MEMORANDUM CONT’D.
CMS
16-33-NH: Nursing home staff
includes employees, consultants,
contractors, volunteers, and other
caregivers who provide care and
services to residents on behalf of the
facility.
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RESIDENT’S RIGHTS TO PRIVACY
AND CONFIDENTIALITY
Taking
photographs or recording 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 rights to privacy
and confidentially.
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RESIDENT’S REIGHTS TO PRIVACY
AND CONFIDENTIALITY, CONT’D.
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.
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ABUSE PROHIBITION
If
a photograph or recording of a resident,
or the manner that it is used, demeans or
humiliates a resident(s), regardless of
whether the resident provided consent and
regardless of the resident’s cognitive
status, the surveyor must investigate
Federal requirements related to abuse at
F-223 and F-226.
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ABUSE PROHIBITION,
CONT’D.
A
lack of response by the resident does
not mean that mental abuse did not
occur; the surveyor should evaluate how
the reasonable person would react under
such circumstances.
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ABUSE PROHIBITION, CONT’D..
Mental
abuse may occur through either
verbal or nonverbal conduct which
causes or has the potential to cause
the resident to experience humiliation,
intimidation, fear, shame, agitation, or
degradation.
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ABUSE PROHIBITION, CONT’D.
Examples of verbal or nonverbal conduct that can cause
mental abuse, include but are not limited to, nursing
home staff taking photographs or recordings of residents
that are demeaning or humiliating using any type of
equipment (e.g., cameras, smart phones, and other
electronic devices) and keeping or distributing them
through multimedia messages or on social media
networks. Depending on what was photographed or
recorded, physical and/or sexual abuse may also be
identified.
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ABUSE PROHIBITION, CONT’D.
POLICIES AND PROCEDURES
Each nursing home must develop and implement
written policies and procedures that prohibit all
forms of abuse, including mental abuse. Each
nursing home must review and/or revise their written
abuse prevention policies and procedures to include
and ensure that nursing home staff are prohibited
from taking or using photography or recordings in
any manner that would demean or humiliate a
resident(s). This would include using any type of
equipment (e.g., cameras, smart phones, and other
electronic devices to take, keep or distribute
photographs and recordings on social media.
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REFERENCE SURVEY AND CERTIFICATION: 16-33-NH
(CMS) MEMORANDUM CONT’D
DATED AUGUST 5, 2016
REVIEW OF FACILITY POLICIES AND
PROCEEDURES
The survey team “must request and review” nursing
home policies and procedures related to prohibiting
nursing home staff from taking or using
photography or recordings in any manner that would
demean or humiliate a resident(s).
S&C:16:33:NH REFERENCES TAGS: F-164, F-223,
F-225, F-226, F-490, F-493 & F-495.
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REFERENCE SURVEY AND CERTIFICATION: 16-33-NH
(CMS) MEMORANDUM
DATED AUGUST 5, 2016
The effective date for surveyors reviewing
policies and procedures regarding
photographing residents/mental abuse is
September 5, 2016. Survey teams should
begin this review for standard surveys,
effective immediately and implement this
policy until each nursing home has been
surveyed for the inclusion and
implementation of such policies.
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REFERENCE SURVEY AND CERTIFICATION: 16-33-NH
(CMS) MEMORANDUM
DATED AUGUST 5, 2016
If the surveyor is unable to conduct
interviews with the resident’s family, the
surveyor must utilize the reasonable person
approach, which considers how a reasonable
person in the resident’s position would be
impacted by postings of photography and
recording, regardless of whether the resident
consented.
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REFERENCE SURVEY AND CERTIFICATION: 16-33-NH
(CMS) MEMORANDUM
DATED AUGUST 5, 2016
REVIEW OF FACILITY POLICIES AND
PROCEEDURES
S&C:16:33:NH REFERENCES TAGS: F-164, Privacy
& Confidentiality; F-223, Abuse; F-225, Not Employ
Abusive Individual; F-226, Abuse Policy &
Procedures; F-490, Administration; F-493, Governing
Body; & F-495, Nurse Aide-Competency.
These are tags (any or all) that could be cited for
photographing nursing home residents.
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TAKING PICTURES OF NURSING
HOME RESIDENTS
ADULT MALTREATMENT ACT
ARKANSAS CODE ANNONATED 12-12-1703.
ABUSE MEANS: (ii) Any intentional act that a
reasonable person would believe subjects an
endangered person or an impaired person, regardless
of age, ability to comprehend, or disability, to ridicule
or psychological injury in a manner likely to provoke
fear or alarm.
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TAKING PICTURES OF NURSING
HOME RESIDENTS, CONT’D…
“YES!!” “IT’S REPORTABLE TO
ADMINISTRATOR & POLICE
IMMEDIATELY!!”
&
OFFICE OF LONG TERM CARE BY
11:00 A.M. NEXT BUSINESS DAY
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TAKING PICTURES OF NURSING
HOME RESIDENTS, CONT’D…
TAKING RESIDENT PICTURE
AND/OR POSTING TO SOCIAL
MEDIA
POSSIBLE FINDING PLACING
EMPLOYEE ON REGISTRY!
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TAKING PICTURES OF NURSING
HOME RESIDENTS, CONT’D…
“IT’S AGAINST THE LAW!!”
CRIME OF VOYEURISM
Arkansas Code Annotated 5-16-101
(a) It is unlawful to use any camera, videotape, photooptical, photoelectric, or any other image recording
device for the purpose of secretly observing, viewing,
photographing, filming, or videotaping a person
present in a residence, place of business, school, or
other structure, or any room or particular location
within that structure, if that person:
.
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TAKING PICTURES OF NURSING
HOME RESIDENTS, CONT’D…
“IT’S AGAINST THE LAW!!”
CRIME OF VOYEURISM
Arkansas Code Annotated 5-16-101, Cont’d
(a) Cont’d:
(1) Is in a private area out of public view;
(2) Has a reasonable expectation of privacy; and
(3) Has not consented to the observation.
IT’S A CLASS D FELONY!
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