Failure to Investigate Unauthorized Resident Photograph and Privacy Violation
Penalty
Summary
The deficiency involves the facility’s failure to conduct a thorough investigation after being informed that staff took a photograph of a resident without consent. Resident #42, who was cognitively intact with a BIMS score of 15 and dependent on staff for all ADLs including bathing and repositioning, reported that a CNA took a picture of his naked back without his permission. The resident stated he first learned of the picture when his father called and then texted him the image, and he reported feeling violated because no one had asked his permission and he did not know who had seen the picture. 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. On the date of the incident, CNA #233 took a picture of Resident #42’s naked back while giving him a shower, without asking for consent. LPN #500 stated that when she returned to the unit, CNA #233 showed her the picture on a personal cell phone. LPN #500 then went to the resident’s room, referenced the picture, and informed the resident that the CNA had taken a picture of his back; the resident told her he did not like that the picture had been taken without asking him first. LPN #500 acknowledged that she did not report the incident to management. LPN #15 reported that CNA #233 told her she had taken a picture of the resident’s back and sent it to LPN #500, who then sent the picture to the resident’s mother. LPN #15 stated she notified the ADON immediately but did not speak with the resident about the picture until the following day, when the resident again expressed that he was not happy the picture had been taken without his permission. The ADON and Administrator confirmed that a CNA had taken a picture of the resident’s back and that the picture was sent to the nurse on the unit and then to the resident’s parents. The Administrator stated she was notified within two hours and notified corporate, but she did not speak with CNA #233 or the resident about the picture. Both the Administrator and ADON verified they did not interview CNA #233 or LPN #500 about the incident and did not verify that the picture had been deleted from their personal cell phones. The Administrator could not locate a formal investigation and stated that LPN #15 had done the interviews at the time. The Administrator further stated she did not believe there was intent to do harm, did not consider the incident abuse, and did not submit a report to the State Agency, characterizing it instead as a HIPAA violation. Facility policy and CMS guidance cited in the report require that all allegations of abuse, including unauthorized photographs, be thoroughly investigated and reported, which did not occur in this case.
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