Failure to Report Allegation of Abuse Involving Unauthorized Resident Photograph
Penalty
Summary
The deficiency involves the facility’s failure to report an allegation of abuse to the State Agency after staff took and shared an unauthorized photograph of a resident’s naked back. The resident, admitted with diagnoses including paraplegia, seizure disorder, severe protein-calorie malnutrition, hypertension, insomnia, amaurosis fugax, dilated cardiomyopathy, and anxiety disorder, had a BIMS score of 15, indicating intact cognition, and was dependent on staff for all ADLs, including showering and repositioning in bed. During a shower, a CNA took a picture of the resident’s naked back on a personal cell phone without the resident’s consent. Multiple staff interviews confirmed that facility policy prohibited staff from using personal cell phones in resident care areas and from taking resident photographs, except by the wound nurse using a facility phone for clinical purposes. An LPN reported that she was shown the picture of the resident’s back on the CNA’s personal phone and later informed the resident that the CNA had taken the picture; the resident stated he did not like that the picture had been taken without asking him first. Another LPN reported that the CNA told her she had taken the picture and that it had been sent to another LPN, who then sent it to the resident’s mother. The resident later reported learning of the picture only when his father called and then texted him the image, and he stated he was upset, had not given permission, and felt violated because he did not know who had seen the picture. The ADON acknowledged that a CNA had taken a picture of the resident’s back and that the image was sent to a nurse who then sent it to the resident’s parents, and confirmed that staff cell phone use in direct care areas was prohibited. The Administrator stated she was notified of the incident within two hours and notified corporate, but she could not locate a formal investigation and indicated that an LPN had done interviews at the time. The Administrator further stated she did not believe there was intent to do harm, considered the incident a HIPAA violation rather than abuse, and therefore did not submit a report to the State Agency. This inaction occurred despite facility policy and CMS guidance requiring that all allegations of abuse, including those involving unauthorized photographs, be thoroughly investigated and reported to appropriate state agencies.
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