RESIDENT ABUSE VIA AUDIO/VISUAL RECORDING: IMMEDIATE ACTION REQUIRED

On Friday, August 5, 2016, the Centers for Medicare and Medicaid Services (CMS) released Survey and Certification Memo 16-33-NH: "Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Visual Recordings by Nursing Home Staff." This memo implements departmental policy to protect resident privacy and prohibit mental abuse to residents related to the use of photographs and audio/video recording of residents by nursing home staff. The policy was effective immediately with instructions to state survey agencies to fully implement these requirements into the annual standard survey process within 30 days, which is September 5, 2016.

Nursing facilities are required to ensure that their written abuse policies and procedures ensure that nursing home staff are prohibited from taking or using photographs or recordings in any manner that would demean or humiliate a resident. Nursing facilities are expected to train on abuse policies for all staff who provide care and services, including the prohibition of using any type of equipment or electronic device or media to demean or humiliate a resident. In light of this memorandum, facilities should immediately:

• Review and revise their Abuse Policies to ensure they specifically address the prohibition of using photographs or recordings to demean or humiliate residents. • Inservice employees, consultants, contractors, volunteers and any other caregivers who provide care and services to residents on behalf of the facility on the prohibition on recording or photographing residents or their rooms or belongings. • Ensure that any other relevant facility policies (e.g., Social Media policies, Crime Reporting policies, etc.) coordinate and/or cross reference with the abuse policy changes. If you would like more information on the foregoing, please contact Carol Rolf at Rolf@ROLFLaw.com or Michele Conroy at Conroy@ROLFLaw.com or call 1-866-495-5608. Please note that this alert is intended to be informational only, and is not intended to be nor should it be relied upon as legal advice. Rolf Goffman Martin Lang LLP will not be responsible for any actions taken or arrangements structured based upon this alert. The receipt of this alert by an organization that is not a current client of Rolf Goffman Martin Lang LLP does not create an attorney-client relationship between the recipient and the law firm.