NURSING HOME WORKERS POSTINGS
The December 21, 2015 edition of the Washington Post and had a lead story of nursing home workers allegedly posting “humiliating and dehumanizing” photos on various social media websites, such as snapchat and others. If these allegations are true, they are potentially evidence of a violation of certain patient privacy laws. Washington Post reported on a ProPublica investigation and co-published the story on the same date. The investigation revealed at least 35 documented instances where a nursing home employee secretly took a picture or even a video of a nursing home resident in a humiliating or degrading light and posted them online. 16 of the 35 instances were with snapchat, where the picture appears for a short period of time and then disappears, with no lasting digital trail or record.
Some of the postings led to criminal charges in California. There is always the potential for federal criminal or civil liability charges if the allegations are true. As noted in previous blogs here, nursing homes in particular make the loudest cry when it comes to calls for changes to the laws allowing for cameras in nursing homes, with one nursing home employee union representative stating that cameras in nursing homes “takes away from the professionalism” of nursing home employees and is “unfortunate and creepy and wrong.” Such acts clearly are not representative of the vast majority of nursing home employees who do their job ethically, lawfully and with compassion.
THE RESPONSE OF THE GOVERNMENT AND OTHER ENTITIES
By all indicators it appears as if all evidence of criminal acts were properly turned over the local prosecutors, district attorney or state attorney generals office and were timely followed up on. A number of criminal charges were filed throughout the nation as a result of the investigation. The federal government, through the United States Center for Medicare and Medicaid Services, is looking to expand its definition of abuse, neglect, exploitation and sexual abuse through its rulemaking authority.
Even snapchat is getting on board with its Safety Advisory Board that creates policies that deal with reviews allegations of abuse and takes action as needed and responds to legal law enforcement requests. Even though breaches of patient confidentiality law, known as the Health Insurance Portability and Accountability Act (also known as HIPAA) can have criminal consequences, the Department of Health and Human Services, Office of Civil Rights regularly receives approximately 300,000 complaints and usually only enforces the larger breaches of data or cases with a larger public relations element to it. Allegations such as revealed in the ProPublica investigation would likely not get any significant action by the federal government.
Sometimes the response is to simply list a large breach of data by placing the information in regards to the breach on a public website, colloquially known as the “wall of shame.” In California, the same patchwork of responses is even more pronounced with a state law overlapping HIPAA laws that mandates the reporting of any breach of patient confidentiality. Various regions throughout the state have better reporting and, more importantly, enforcement of the law.