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Social media's double-edged sword

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Imagine that Happy Daze Nursing Home has a Five-Star rating by the Centers for Medicare and Medicaid Services (CMS), meaning that it is rated as “much above average.” Its residents all seem happy and well-cared for and its staff members are professional and eager to come to work every day. And then, it all comes crashing down: The media reports that a nurse aide posted a humiliating and degrading picture of a resident on her Facebook page. Sound incredible? Unfortunately, the hypothetical situation above plays out all too frequently.

Social media can be a very effective tool in a facility’s marketing and public relations material. “We see social media as a low-cost medium we can use to tell positive stories about the loving environments we create for our patients and residents,” says Lea Volpe, Vice President of Communications and Brand for PruittHealth, a large non-acute care provider in the Southeast. “But we also see it as a risk and have worked hard to ensure we have the policies and practices in place to train employees, monitor online content and address concerns and issues quickly and effectively.”

Unfortunately, social media can be a significant problem when used inappropriately. Fueled by reports of disturbing images and videos of nursing home residents being posted on social media sites such as Facebook, Instagram, Snapchat and others, the Centers for Medicare & Medicaid Services (CMS) issued a directive to all State Survey Agency Directors in August 2016. By now, all nursing facilities should have reviewed and revised their policies and procedures regarding social media. Still, the legal points are worth reiterating, since new cases continue to surface.

In May 2017, the family of an Austin, Texas nursing home resident whose pictures were posted on social media sued the nursing home for more than $1 million. The pictures posted on Snapchat allegedly showed an 83-year-old resident who has Alzheimer’s disease covered in what appeared to be feces. According to published reports, the nursing home reported the incident to law enforcement and suspended the offending nurse aide, who was arrested, charged with a misdemeanor and subsequently fired. Still, the nursing home will have to deal with the law suit filed by the resident’s family as well as any potential enforcement actions by CMS and/or the Texas Department of Aging and Disability Services. Ideally, other providers will learn valuable lessons from this disturbing case and take a proactive approach to policies and staff training.

Federal Requirements

CMS requires all nursing facilities that participate in the Medicare and Medicaid programs—the overwhelming majority of nursing homes—to have policies and procedures “that prohibit staff from taking, keeping and/or distributing photographs and recordings that demean or humiliate a resident(s).” [i] Facility management needs to understand that CMS extends the requirement beyond nursing home “staff” to include volunteers, contractors, consultants and other caregivers who provide care and services to residents on behalf of the nursing home.

What constitutes humiliation?

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Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

www.agg.com

Alan C. Horowitz, Esq., is a partner at...

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