CMS Directs State Surveyors to Review Policies on Photos and Recordings of Nursing Facility Residents

In light of a recently released memo1 from the Centers for Medicare and Medicaid Services (“CMS”), nursing facilities should ensure that they have in place policies and procedures on taking photos and audio/video recordings of residents by employees, contractors, and volunteers. This memo, dated August 5, directs state surveyors to request these policies from nursing facilities during the next standard survey, whether a traditional or quality indicator survey. CMS writes that this action is being taken due to media reports of nursing facility staff taking unauthorized photos and video recordings of residents – often in compromised positions – and posting them to social media.

CMS considers these incidents to be violations of Medicare conditions of participation covering residents’ rights to privacy and confidentiality and freedom from abuse, mistreatment, and neglect. Accordingly, nursing facilities’ policies and procedures on resident privacy and confidentiality, and prevention of abuse, mistreatment, and neglect, should address photographing and recording of residents by staff. The memo indicates what CMS expects nursing facilities to address in these policies and procedures, including:

  • When and how written consent may be obtained from a resident or a representative to take photos and recordings;
  • Prohibitions on employees, contractors, and volunteers from taking or using photos and recordings of residents that could be demeaning;
  • Training employees, contractors, and volunteers on photographing and recording residents; and
  • What actions should be taken, including disciplinary action, if an employee, contractor, or volunteer inappropriately takes a photo or recording of a resident.

Nursing facilities should act quickly to review their policies and procedures and ensure they are consistent with CMS’s expectations as provided in the memo. CMS expects surveyors to review these policies and procedures as part of all standard surveys starting 30 days after the release of the memo (September 4). Additionally, nursing facilities should review whether they are in compliance with these policies.

If Kozak & Gayer can be of any assistance in advising your facility on CMS’s memo, or in reviewing or drafting a policy on taking photos and recordings of residents, please contact Mike Burian, Esq., Steve Johnson, Esq., or Taylor Fawns, Esq.