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Social Media – Rights, Rules, and Regulations

Social Media – Rights, Rules, and Regulations

Social Media – Rights, Rules, and Regulations

Author – Cyndi Siders, RN, MSN, CPHRM, DFASHRM, CPPS
Executive Consultant

September 6, 2016

“The Work of My Hands”

Ms. Sally Smith, 88 years young, is participating in a manicure and nail polishing activity at your facility. She comments that she would like clear polish only because her hands show many years of wear and she does not want to draw attention to her age. The team member asks Sally about some of the memories that she has had that involve the work of her hands. Sally smiles and shares stories about her children and grandchildren and the hard times and good times. In the end, Sally chooses a bright red polish for her nails.

Can the facility post a picture of Sally’s hands and her story in a Facebook post? How about the staff member, can she post a picture and Sally’s story? It Depends…

social-media-image

The Facts…

Most of us likely look at our phone more than a dozen times a day. Social media is being described as an “activity of daily living” for care staff as well as residents.1 Popular social media sites include, but are not limited to: Facebook, YouTube, Pinterest, LinkedIn, Twitter, Google Plus+, Tumbler, Instagram, Reddit, and VK.2

Facebook has 1,100,000,000 monthly visitors.3 Facebook reports the following adult user statistics: 72% of adult internet users, 62% of the entire adult population, and 48% of adults 65 and older.4 Instagram has 300 million active daily users.5 “Instagram users generate 3.5 billion likes per day” and “more than 80 million photos are uploaded per day.”6

Healthcare organizations are learning about the many benefits and accompanying risks of social media sites. A Facebook page or other social media source can provide real-time information and resources for families and the community. Social media also provides an opportunity to share the activities and special milestones that seniors are experiencing at your facility. However, inappropriate posts create real risks for seniors, care providers, and facilities.

On August 5, 2016, The Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) issued a memorandum to state officials titled, “Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff.” The memorandum defines mental abuse to include taking photographs or recordings in any manner that would demean or humiliate a residen(s). 7

Facilities are required to have written policies and procedures “that prohibit staff from taking, keeping and/or distributing photographs and recordings that demean or humiliate a resident(s).” Facilities are also required to provide education and training for facility staff, which include, “employees, consultants, contractors, volunteers, and other caregivers who provide care and services to residents on behalf of the facility.” The memorandum notes that providing in-service education does not relieve the facility from responsibility for oversight and supervision of the implementation of the policy.8

      1. The memorandum also outlines the requirements for reporting any individual(s) that violates the policy to law enforcement:
      1. Section 1150B of the Social Security Act (the Act) requires certain individuals in federally funded long-term care facilities to report timely any reasonable suspicion of a crime committed against a resident of that facility. Those reports must be submitted to at least one law enforcement agency of jurisdiction and the State Survey Agency (SA), in fulfillment of the statutory directive to report to the Secretary. Individuals who fail to report under Section 1150B(b) are subject to various penalties, including civil monetary penalties. Section 1150B(d) of the Act also prohibits a facility from retaliating against any individual who makes such a report

9

    1. .

The CMS memorandum directs surveyors to begin requesting facility policies during surveys 30 days after the date of the memo (September 5, 2016).10

The News…

• April 2015, Pierre, SD. An anonymous caller told the home’s executive director that a nursing assistant had sent her a photo and video of a resident in the bathtub via Snapchat. The employee was suspended but law enforcement was not notified. The executive director told inspectors she was unsure if the incident constituted abuse. The aide was charged with a misdemeanor for photographing the resident. She pleaded guilty to secretly recording the body of a person and was sentenced to three days in jail, according to the Argus Leader newspaper. The woman’s family has filed a lawsuit against the home.11

• February 2016, Kokomo, IN. A nursing home employee was fired in May after posting a memorial photo on Facebook of a resident who had died. The photo, posted in February, showed the resident in a wheelchair, smiling, with the caption, “Fly away until another day soon we will be on are (sic) way.” The photo was discovered by the facility’s administration in May, and while the employee had told a nursing home official that the family had given permission to take the photo, government inspectors were unable to verify this. In an improvement plan provided to the state, the facility indicated all employees would receive additional education on the social media policy. The state cited the home for a breach of personal privacy, but the facility disagreed, telling the state that, “the resident identified was deceased at the time the photo was posted to social media so was not affected.”12

• May 2016, Cincinnati, OH. A nursing assistant posted a video on Facebook of a resident sitting in the shower room, with smiley face emojis obscuring her face. The video showed the nursing assistant holding up the resident’s white hair, asking “Is this your hair? Is this the best you have…?” before using an explicit word, which was censored in the government inspection report. While the resident was clothed, and only her hair and one ear were visible in the video, the director of nursing told inspectors it was clear the video was shot in the facility’s bathroom. The government inspection report said the resident was cognitively impaired. The video was reported to the director of nursing by another employee, and the nursing assistant removed the video from Facebook. Other employees knew of the video but did not report it to administration “in a timely manner,” the inspection report said. The nursing assistant was immediately fired, and the director of nursing re-educated staff on the facility’s policy banning staff from taking pictures or videos of residents, and on the requirement that all violations of the policy be reported the same day. The facility declined a request for comment.13

Recommendations for Healthcare Providers…

• Develop policy and procedures regarding the use of personal mobile devices, including but not limited to: smart phones, cameras, tablets, smart watches, and laptop computers while working. If allowed, designate where and when the devices may be used (e.g., on breaks). Inform staff that personal information uploaded, downloaded, sent/received, posted, or shared using company equipment or internet (e.g., Wi-Fi) may be discoverable.14 Ensure that staff understand that your abuse policy includes the taking, keeping, or distributing of photographs and recordings of residents that are demeaning or humiliating.15 The policy should warn that violations will result in disciplinary action up to and including termination.16 Ask a healthcare attorney to review your policy to ensure compliance with state and federal laws and regulations.
• Consider obtaining a signed acknowledgement from each employee stating their understanding regarding their obligation “to keep the residents’ confidential protected health information private, which includes refraining from posting specific status updates, comments, videos and/or photos that could disclose this information.”17 Include specific information about mental abuse which includes, but is not limited to, “abuse that is facilitated or caused by nursing home staff taking or using photographs or recordings in any manner that would demean or humiliate a resident(s).”18 Ask a healthcare attorney to review your acknowledgement form to ensure compliance with state and federal laws and regulations, including the Health Insurance Portability and Accountability Act (HIPAA).
• Provide staff orientation and training regarding the CMS definitions of mental abuse including specific examples.

o If a photograph or recording of a resident, or the manner that it is used, demeans or humiliates a resident(s), regardless of whether the resident provided consent and regardless of the resident’s cognitive status, the surveyor must investigate Federal requirements related to abuse at F223 and F226. This would include, but is not limited to, photographs and recordings of residents that contain nudity, sexual and intimate relations, bathing, showering, toileting, providing perineal care such as after an incontinence episode, agitating a resident to solicit a response, derogatory statements directed to the resident, showing a body part without the resident’s face whether it is the chest, limbs, or back, labeling residents’ pictures and/or providing comments in a demeaning manner, directing a resident to use inappropriate language, or showing the resident in a compromised position.19

• Provide staff orientation and training regarding the expectation to immediately report suspected or confirmed abuse, including taking, keeping, or distributing photographs and recordings of residents that are demeaning or humiliating.20
• Define leadership, management, and supervisory responsibility for oversight and supervision of the social media policy. Ensure a culture that supports resident, family, and staff member abuse reporting without fear of recrimination or intimidation.21
• Under CMS regulations, facilities must “report all allegations of abuse, provide protections for any resident involved in the allegations, conduct a thorough investigation, implement corrective actions to prohibit further abuse, and to report the findings as required.”22
• Provide educational materials to residents and family members during facility tours regarding facility policies on resident rights, including how the facility uses social media. Ask for written confirmation that photographs and recordings will not be taken of other residents or staff without the express permission of the facility. Obtain written informed consent for resident photographs that will be used for publications, websites, or social media posts.
• The National Labor Relations Board offers guidance on social media issues and created a model social media policy in 2012.23 A few examples of policy language are noted below:

Be respectful

Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

 

Be honest and accurate

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors. 24

Resources

CMS Memorandum:
• Department of Health and Human Services, Centers for Medicare & Medicaid Services. Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff. August 5, 2016 Memorandum to State Survey Agency Directors. https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-33.pdf

Sample Acknowledgement and Disclaimer
• Angie Davis. Social Media Policy Considerations for Long Term Care Providers – A Sword or A Shield?
http://www.bakerdonelson.com/social-media-policy-considerations-for-long-term-care-providers–a-sword-or-a-shield-03-29-2012/

Sample Policy Language
• Medical Economics. [March 10, 2013]. NLRB sample social media policy. http://medicaleconomics.modernmedicine.com/medical-economics/news/user-defined-tags/human-resources-policies/nlrb-sample-social-media-policy?page=full

This blog, which does not reflect any official policy or opinion for Vaaler Insurance, Inc. or Siders Healthcare Consulting, LLC, is provided for informational purposes only. It is not intended to provide legal or medical advice, nor is it intended to be an exhaustive list of all risks that need to be addressed for a healthcare organization. While every effort is made to provide accurate information, changes may occur and inaccuracies happen despite best efforts. This information is not a substitute for individual consultations with professionals in these areas and should not be relied on as such. Please work with your legal counsel and business advisor(s) for a plan that is specific to your organization. © 2016 Vaaler Insurance, Inc.

Sources:
1. Angie C. Davis and Steven W. Fulgham. Top 10 best practices for social media in LTC [June 4, 2014]. http://www.mcknights.com/guest-columns/top-10-best-practices-for-social-media-in-ltc/article/348769/ (August 31, 2016).
2. The e-Business, MBA Guide. Top 15 Most Popular Social Networking Sites | August 2016. http://www.ebizmba.com/articles/social-networking-websites (August 31, 2016).
3. Ibid.
4. Maeve Dugan. The Demographics of Social Media Users. [August 19,2015]. http://www.pewinternet.org/2015/08/19/the-demographics-of-social-media-users/ (August 31, 2016).
5. DMR Stats and Gadgets. By the Numbers: 180+ Interesting Instagram Statistics (June 2016).http://expandedramblings.com/index.php/important-instagram-stats/. (August 31, 2016)
6. Search Engine Watch. 23 up-to-date stats and facts about Instagram you need to know. https://searchenginewatch.com/2016/04/20/23-stats-and-facts-about-instagram/ (August 31, 2016).
7. Department of Health and Human Services, Centers for Medicare & Medicaid Services. Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff. August 5, 2016 Memorandum to State Survey Agency Directors. https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-33.pdf (August 31, 2016).
8. Ibid.
9. Ibid.
10. Ibid.
11. ProPublica. Inappropriate Social Media Posts by Nursing Home Workers, Detailed. https://www.propublica.org/article/inappropriate-social-media-posts-by-nursing-home-workers-detailed (August 31, 2016).
12. Ibid.
13. Ibid.
14. Angie C. Davis and Steven W. Fulgham. Top 10 best practices for social media in LTC [June 4, 2014]. http://www.mcknights.com/guest-columns/top-10-best-practices-for-social-media-in-ltc/article/348769/ (August 31, 2016).
15. Department of Health and Human Services, Centers for Medicare & Medicaid Services. Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff. August 5, 2016 Memorandum to State Survey Agency Directors. https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-33.pdf (August 31, 2016).
16. Angie C. Davis and Steven W. Fulgham. Top 10 best practices for social media in LTC [June 4, 2014]. http://www.mcknights.com/guest-columns/top-10-best-practices-for-social-media-in-ltc/article/348769/ (August 31, 2016).
17. Ibid.
18. Department of Health and Human Services, Centers for Medicare & Medicaid Services. Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff. August 5, 2016 Memorandum to State Survey Agency Directors. https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-33.pdf (August 31, 2016).
19. Ibid.
20. Ibid.
21. Ibid.
22. Ibid.
23. National Labor Relations Board. The NLRB and social media. https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media (September 2, 2016).
24. Medical Economics. [March 10, 2013]. NLRB sample social media policy. http://medicaleconomics.modernmedicine.com/medical-economics/news/user-defined-tags/human-resources-policies/nlrb-sample-social-media-policy?page=full (September 1, 2016).

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