According to research done by ProPublica, a New York-based nonprofit news organization, since 2012 there have been 35 cases of employees at nursing homes and assisted-living facilities posting degrading photos of residents online without their knowledge or consent. These photos, and in some cases videos, featured residents in various stages of undress, sitting on the toilet, and even being taught to rap about cocaine. A few showed small acts of physical abuse, including aides manhandling the residents. The number of cases seems to be increasing with the proliferation of social media sites, but unfortunately, whether these violations of the residents’ privacy and dignity are also violations of the law can be tricky to determine if no physical abuse is shown. Because the nursing assistants and workers can use sites like Snapchat, where the photos appear for mere seconds before disappearing, it can also be quite difficult to track these cruelties.
Several cases of this type of abusive behavior have recently resulted in criminal charges, brought as a result of violations of the Health Insurance Portability and Accountability Act. This federal patient privacy law can be used to bring both civil and criminal charges in certain situations. One district attorney in Middlesex County, MA, Marian Ryan, is working to charge two women with elder abuse after they used Snapchat to post multiple inappropriate videos of residents at the nursing home where they worked. Ryan is hoping to succeed in her case but has concerns about the incidents she isn’t privy to, saying that because many of the residents who are targeted have dementia, they don’t know their rights are being violated. The most frequent way that these incidents are uncovered is when other staff members or people who are friends of the perpetrators see the photos or videos online and report them. The nursing homes, many of which have no social media policies and don’t use social media much themselves, are often in the dark.
Both the Office for Civil Rights in the Department of Health and Human Services and the U.S. Centers for Medicare and Medicaid Services (CMS) are now getting involved as the scope of the problem is becoming more apparent. The Office for Civil Rights is supposed to enforce the privacy law that may be violated by these dehumanizing photos and videos, and although it hasn’t penalized any nursing homes or care facilities under the law yet, its deputy director for health information privacy, Deven McGraw, intends to monitor the situation more closely, saying, “If we don’t have pending investigations on any of these cases . . . they would be candidates for further inquiry from our end.” The CMS, which oversees nursing homes, has actually cited some homes for privacy violations and is planning to issue guidelines tailored to these specific problems when they update their nursing home rules and standards.
Although many nursing homes are responsible and act on their own to discipline and sometimes fire the employees who are taking and sharing these photos and videos, others merely restrict cellphone use at work, a rule which is difficult if not impossible to enforce. The fact that anyone is able to get away with this form of abuse on any level because of inadequacies in policy is both horrifying and frustrating. Hopefully now that nursing homes and the public have become more aware of the growing scope of the problem, we can find better ways to address it and protect some of the most vulnerable in our society from exploitation and harm.
Gary Massey, Jr., is a well-known courtroom advocate practicing law in Chattanooga, Tennessee. Gary is a native of Tennessee who began practicing law in 1998. He graduated from Cumberland School of Law where he was ranked in the top 3% of his class and was an editor of the Cumberland Law Review.