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New CMS Guidance on Abuse of Patient Privacy Rights

Last month, I noted recent media reports raising patient privacy concerns due to health care providers’ use of social media in the workplace [The Potentially Dangerous Intersection of Healthcare and Social Media].  It appears the Centers for Medicare & Medicaid Services (“CMS”) has also taken note of media reports on this topic.  CMS has issued new guidance to state survey agency directors in an effort to safeguard patient privacy and prevent abuse related to photos or audio/visual recordings by nursing home staff.

In S&C: 16-33-NH (August 5, 2016), CMS focuses on patients’ right to privacy and confidentiality, and to be free from abuse, including mental abuse.  CMS is pushing for facilities to implement written policies and procedures prohibiting all forms of abuse, including the taking or using of photos or recordings in any manner that would humiliate a resident, or to distribute such materials on social media.  According to CMS, facilities should provide training on abuse prevention policies, as well as oversight and supervision of staff in order to ensure compliance.  The new CMS guidance also discusses the duties to report and investigate allegations of abuse, and to take corrective action when warranted.  CMS has issued instructions to state survey agency surveyors to request and review facility policies and procedures for compliance.

This new CMS guidance shows that regulators are taking these new types of privacy concerns seriously.  The abuse of patient privacy and confidentiality rights by healthcare providers is being increasingly scrutinized.  Healthcare providers should be mindful of the recent CMS guidance, as well as other efforts by the healthcare industry to address the challenges posed by this important issue.