Photography, Filming, and Other Recording of Residents
June 14, 2018 | Aging Services Risk Management
In recent years, the inappropriate sharing of photographs and videos of long-term care residents on social media sites such as Facebook, Instagram, and Snapchat has become a particular focus of news reports.
A December 2015 exposé published on the website ProPublica details dozens of horrifying instances in which nursing home staff shared inappropriate, humiliating, or demeaning images of residents—often taken surreptitiously—on social media sites. (Snapchat is a social media platform in which, according to the article, "photos appear for a few seconds and then disappear with no lasting record." However, the photos can be saved by taking a screenshot with a PED.) In some cases, the residents were fully or partially clothed, in compromising positions, or undergoing abuse by staff. The article states that, although some of these instances led to criminal charges for those involved, most did not, even though they likely violated the HIPAA privacy rule. (Ornstein "Nursing Home Workers Share") An accompanying article, updated in August 2016, recounts dozens of instances that occurred between January 2012 and January 2016 in which long-term care staff inappropriately shared photos or videos of residents on social media sites; some instances were well intentioned, but others were abusive (Ornstein "Inappropriate").
Images can be captured and used for many purposes in long-term care facilities, including the following:
These reports prompted CMS to issue a memorandum making it clear that, in long-term care facilities, taking photographs or recordings of a resident without the resident, or his or her designated representative's, written consent is a violation of the resident's right to privacy and confidentiality (CMS "Protecting")
Such inappropriate picture taking can reflect extremely poorly on the organization itself—and may have serious legal ramifications. Even if inappropriate photos are not shared, their unauthorized taking can pose a serious legal risk to an organization. In addition to breach or invasion of privacy, a healthcare provider risks violating the privacy or security provisions of HIPAA and state privacy laws, exposing the provider to civil or even criminal liability if the images are misused. Additionally, a facility or provider could face claims for invasion of privacy for failing to obtain a resident's consent (or the consent of the resident's representative) to use his or her image.
Still, picture taking is extremely common in the long-term care setting; just a few of the many ways images are captured and used in this setting are detailed in Picture Taking in Long-Term Care Facilities. Therefore, it is incredibly important that risk managers reduce the risks of HIPAA violations, lawsuits, violations of residents' privacy rights, and unwanted media attention by adopting...