CMS Warns Against Social Media Postings Involving Nursing Facility Residents

by Baker Ober Health Law

In an August 5, 2016, Survey and Certification memorandum to state Survey Agency Directors, the Centers for Medicare and Medicaid Services (CMS) directs surveyors of nursing facilities on matters relating to the use of social media by facility staff, volunteers, and visitors.1  The new guidance comes amid recent reports of facility employees using social media platforms, such as text messaging, Facebook, or Snapchat, to post humiliating or graphic pictures of residents. The guidance advises surveyors that, in addition to considering such actions to be violations of rules protecting resident privacy, surveyors should also consider citations against the facility for failing to protect residents from mental abuse. Individuals covered by the guidance include facility “employees, consultants, contractors, volunteers, and other caregivers who provide care and services to residents on behalf of the facility.”

The determination that social media postings may constitute abuse if they cause or have the potential to cause residents to experience “humiliation, intimidation, fear, shame, agitation, or degradation,” creates affirmative obligations for facilities. Specifically, facilities should update their policies and procedures related to abuse prevention to address mental abuse and social media’s role in it. The facility must also ensure the implementation of such policies and conduct in-services with staff addressing these issues. In addition to staff training, guidance on facility policies should be established and distributed to all non-employed individuals considered as “staff” for these purposes, such as contractors and volunteers.

Additionally, a full and thorough investigation will be required if a facility discovers that pictures or video may have been taken or shared. Because abuse may be at issue, the facility must report incidents to law enforcement in accordance with federal Elder Justice Act requirements. Involved staff members should be reported to licensing boards as appropriate. The facility should also be cognizant of any additional local requirements regarding abuse reporting.

Finally, facilities should note that these standards apply to individuals with cognitive deficits as well as those who may be more aware of abusive conduct. With respect to residents who are unable to understand the nature of the conduct and may not register actual mental or emotional harm, surveyors will apply a reasonableness standard in evaluating whether harm has occurred.

Ober|Kaler’s Comments

Facilities should immediately update their abuse prevention policies and procedures and conduct appropriate in-services to ensure that staff is aware of these new standards. Surveyors will begin to look for such policies immediately going forward. Conducting these trainings and policy updates as quickly as possible is imperative because CMS, the Department of Justice, and state-level agencies are increasing the scrutiny of nursing facilities in a variety of contexts. Should an incident occur, an investigation will be critical to rebutting a potentially subjective surveyor’s view as to whether it is reasonable to conclude that an incapacitated resident has suffered harm. Proactive responses to incidents when they occur can also result in a finding of “past noncompliance” rather than a current deficiency. 

Citations for failure to prevent abuse may negatively affect a facility’s CMS star rating, which, in turn, may affect a facility’s ability to partner with hospitals and other providers in alternative payment models such as the Bundled Payments for Care Improvement program and other new pilot programs focused on coordinating acute and post-acute to coordinated care. Furthermore, because findings of abuse run the risk of being cited as causing immediate jeopardy to residents, a survey tag regarding these issues could have implications that include greater state involvement in facility management and substantial civil monetary penalties. 

CMS’s social media memorandum also provides an opportunity to evaluate policies and compliance with reporting obligations under the Elder Justice Act and similar local laws. 

1 Survey and Certification Letter 16-33-NH, Aug. 5, 2016, Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Ober Health Law | Attorney Advertising

Written by:

Baker Ober Health Law

Baker Ober Health Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.