Earlier this month, CMS issued guidance regarding privacy concerns in nursing homes. In a letter entitled “Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff,” CMS addressed both nursing home residents’ rights and facility and surveyor responsibilities related to the protection of residents.

On August 5, 2016, CMS directed a letter to State Survey Agency Directors, noting recent media reports that highlighted incidents of nursing home staff taking photos or videos of nursing home residents. Emphasizing that nursing homes must establish a home-like atmosphere for their residents, CMS reiterated that each resident has a right to privacy in both their bodies and their personal space. Any photographs or recordings “using any type of equipment” of the resident or the resident’s private space without consent is a violation of their right to privacy and confidentiality.  Additionally, a photograph or recording that “demeans or humiliates a resident(s), regardless of whether the resident provided consent and regardless of the resident’s cognitive status” is a violation and would require investigation.

The letter also stated that the right to privacy extends to “all aspects of care and services” including having only authorized staff who are “directly involved in providing care” present when care is provided.  Further, resident care should only be provided when removed from public view. CMS also stated that even if the resident cannot relate or understand what occurred, “a lack of response by the resident does not mean that mental abuse did not occur” and “the surveyor should evaluate how the reasonable person would react under such circumstances.”

The letter included the applicable federal requirements for a resident’s right to privacy, the prohibition against resident abuse, the nursing home’s requirement to provide training regarding abuse prevention, and the facility’s required response to allegations of abuse. The letter also provided guidelines that go into effect in September for state surveyors relating to their reviewing, investigating, and reporting requirements.

CMS stated that the policies presented in their letter should be communicated with all survey and certification staff, their managers and the State/Regional Office training coordinators within 30 days.

To view the CMS letter, click here.