It’s Not Candid Camera: Facilities Must Use Caution in Posting Photos of Residents

Recent rumblings at the Centers for Medicare & Medicaid Services (CMS) should raise the concerns of assisted living facility and personal care home owners regarding photos of residents and use on social media. CMS has instructed State Survey Agency Directors to survey nursing home policies and procedures concerning staff taking or using photographs or recordings that would demean or humiliate a resident including posting on social media. While PCH member insureds may not strictly come under the CMS guidelines, there are federal and state laws that may apply to our facilities. This move highlights the legal consequences facing caregivers, including facilities, their staff and volunteers, and even potentially third party providers, all of whom could be liable for invading federal and state privacy laws like the Health Insurance and Portability Accountability Act (HIPAA). The most prudent measure is to put written policies in place governing the taking and posting of photographs on any social media such as Facebook, Instagram, Snapchat, LinkedIn or facility websites. Such initiatives should include prohibitions on posting any resident photos, and most certainly not doing so without the valid, express consent of the resident or the person authorized to act for them on such matters. As further protection, the facility should consider having all staff, volunteers and third party providers review the policy and sign an acknowledgement that they did so and will comply.

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