Unauthorized Cellphone Recording of Resident Without Consent
Penalty
Summary
The facility failed to ensure the confidentiality and privacy of a resident’s personal and medical information when a CNA used a personal cellphone to record the resident without consent. The resident, admitted with diagnoses including Huntington’s disease, anxiety, and protein calorie malnutrition, was cognitively intact with a BIMS score of 13 and required one-person assistance with ADLs. During a chair exercise activity in the dining room, the CNA observed the resident lifting her leg above her head and took out her cellphone to take a picture/video of the resident. Two other CNAs stood nearby, watched the resident performing the exercises, and witnessed the recording being made but did not report it. The resident’s POA later confirmed that she had not given authorization for any photos or videos to be taken of the resident. Multiple staff interviews and document reviews corroborated that the recording occurred and that it involved the resident’s image being captured without prior authorization. The Activities Director and Business Office Manager both observed the three CNAs outside the dining room laughing and looking at a cellphone image of the resident with her leg pointed straight up. Review of the incident reports and staff statements confirmed that the recording was made on a personal cellphone in the work area. The Admissions Coordinator verified that there was no signed photo release authorization for the resident, and review of the facility’s Social Media Policy showed that employees are prohibited from using personal electronic devices in the work area without written approval and from taking or sharing resident photos or videos without prior written permission from the resident or authorized agent. Observation of the video by the Administrator and DON further confirmed that the resident had been recorded without authorization, constituting a breach of confidentiality and privacy.
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