Failure to Obtain Proper Consent for Resident Photography and Social Media Posting
Penalty
Summary
The deficiency involves the facility’s failure to protect residents’ personal privacy and maintain confidentiality of medical and personal information when an outside performer recorded and posted videos of residents on social media without appropriate consent. Facility policies on confidentiality and on photography, video, audio, and electronic recordings required that release of resident information, including video, be handled in accordance with resident rights and that written consent be obtained from the resident or legal representative before taking any photographs or recordings for marketing or promotional purposes. Despite these policies, the Administrator stated she consented to the performer video recording the performance, including residents who attended the activity, without any restrictions and without verifying whether residents’ existing consents covered social media or activity performance recordings. For one resident with severe cognitive impairment (BIMS score 0), the medical record showed a Consent for Photography limited to use for the facesheet only, signed by the responsible party. The responsible party confirmed that he did not consent to any photography or video recording by the performer or to posting on social media, and reported that the posted photos and videos included humiliating comments. For another cognitively intact resident (BIMS score 13), the Consent for Photography allowed use for the facesheet, dietary card, and medication records only. This resident stated he did not consent to photography or video recording for social media and observed the performer recording the performance and residents with a personal phone, without expecting the recordings to be uploaded. The Admissions Coordinator, Administrator, and DON all verified that the consents for these residents did not include permission for social media use, confirming that the facility failed to follow its own consent requirements and resident-specific limitations on photography.
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