During this webinar we will explore the regulatory, operational and employment related issues that arise when long term care staff use social media at work in the long term care setting.

1. Preventing Compliance Quagmires
in Senior Living Communities: Can
Social Media be too “Social”?
May 31, 2018

2. Faculty
Jason Lundy
Polsinelli PC
312-873-3604
JLundy@polsinelli.com
Meredith Duncan
Polsinelli PC
312-873-3602
MDuncan@polsinelli.com
Karen R. Glickstein
Polsinelli PC
816-395-0638
Kglickstein@polsinelli.com

3. Objectives
 Growing use of social media by health care
providers, including senior living facilities, their
employees, residents and families
 Privacy issues, e.g. HIPAA and state privacy
laws
 Heightened government enforcement / penalties
 Need for a carefully-drafted social media policy
 Questions

4. Let’s Get Social

5. Nursing Homes get in hot water
 Senior living employees’ social media use
may cause problems with:
– HIPAA/privacy violations
– CMS/State survey deficiencies and enforcement
– Professional discipline
– Criminal charges against offending employees
– News reports about offensive actions at nursing
home

6. Privacy Laws
Federal and State
 Complicated and conflicting patchwork of laws
 Special rules for certain industries, activities and data
types
 Breach notification laws (47 states as of April 2014)
 FTC Enforcement under FTC Act §5 (unfair/deceptive trade
practices)
 Increased focus on mobile
privacy security and text
message practices

7. Privacy Laws Specific to
Health Care Providers
• The Health Insurance Portability and Accountability
Act of 1996 (HIPAA)
• The Privacy Rule
• The Security Rule
• The Breach Notification Rule
• The Enforcement Rule
• State Privacy / Breach Notification Laws

8. HIPAA & Social Media
 The Basic HIPAA Privacy Rule:
A Covered Entity (CE) or its
Business Associate (BA)
may not use or disclose
Protected Health Information (PHI)
unless the use or disclosure
is specifically permitted by HIPAA.
 The HIPAA Security Rule requires all Electronic PHI
be protected.

9. What is Protected Health
Information (PHI)?
Any information, whether oral or recorded in any form,
related to the mental or physical health condition of an
individual, which identifies or could be used to identify
an individual, and which is created, used, maintained or
transmitted by or on behalf of a CE.

10. Examples of PHI
 Names
 Addresses (including city,
county and full zip codes)
 Dates Directly Related to
Patient (including DOB, DOS
and all ages over 89)
 Telephone Numbers
 Fax Numbers
 Email Addresses
 Social Security Numbers
 Medical Record Numbers
 Health Plan Numbers
 Account Numbers
 Certificate/License
Numbers
 VINs, License Plate
Numbers
 Device Identifiers and
Serial Numbers
 URLs
 IP Addresses
 Biometric Identifiers
(finger and voice prints)
 Full Face Photographic
Images

11. What Disclosures are Permitted
(Without Patient Authorization)?
 To the Individual
 For Treatment, Payment and Health Care Operations
(TPO)
 Incidental Uses and Disclosures
 Uses and Disclosures with Opportunity to Agree or
Object
 Public Interest and Benefit Activities
 Limited Data Set (under certain circumstances)
Note: Can also disclose to Business Associates if a
proper Business Associate Agreement is in place.

12. Nursing Home surveys and deficiencies
 Privacy and confidentiality (483.10 [Resident
Rights])
 Abuse, neglect, exploitation (483.12)
 Investigation and reporting of abuse
allegations (483.12)
 Dignity, self-determination (483.24 [Quality
of Life])
 Training requirements (483.95)

13. Nursing Home surveys and deficiencies
 State Operations Manual gives examples of violating
privacy:
 Photographs or recordings of a resident and/or his or her private space without
the resident’s, or designated representative’s written consent, is a violation of
the resident’s right to privacy and confidentiality. Examples include, but are not
limited to, staff taking unauthorized photographs of a resident’s room or
furnishings (which may or may not include the resident), or a resident eating in
the dining room, or a resident participating in an activity in the common area.
Taking unauthorized photographs or recordings of residents in any state of
dress or undress using any type of equipment (for example, cameras, smart
phones, and other electronic devices) and/or keeping or distributing them
through multimedia messages or on social media networks is a violation of a
resident’s right to privacy and confidentiality.

14. Nursing Home surveys and deficiencies
 Social media posting can be part of mental abuse:
Mental abuse includes abuse that is facilitated or enabled through the use of
technology, such as smartphones and other personal electronic devices. This would
include keeping and/or distributing demeaning or humiliating photographs and
recordings through social media or multimedia messaging. If a photograph or recording
of a resident, or the manner that it is used, demeans or humiliates a resident(s),
regardless of whether the resident provided consent and regardless of the resident’s
cognitive status, the surveyor must consider non-compliance related to abuse at this
tag. This would include, but is not limited to, photographs and recordings of residents
that contain nudity, sexual and intimate relations, bathing, showering, using the
bathroom, providing perineal care such as after an incontinence episode, agitating a
resident to solicit a response, derogatory statements directed to the resident, showing a
body part such as breasts or buttocks without the resident’s face, labeling resident’s
pictures and/or providing comments in a demeaning manner, directing a resident to use
inappropriate language, and showing the resident in a compromised position.
Depending on what was photographed or recorded, physical and/or sexual abuse may
also be identified.

15. Nursing Home surveys and deficiencies
 Social media posting is given as an example of Immediate
Jeopardy:
The facility failed to protect two residents from mental abuse and extreme
humiliation perpetuated by two staff who posted videos and photographs
on social media, of the residents during bathing, using the bathroom and
grooming, which included nude photos and photos of genitalia. In
addition, on the videos, the two staff verbally taunted and made cruel
remarks to the residents including making fun of the way the resident
looked and acted. One resident who was cognitively impaired was shown
on the video to be crying in response to the remarks made to her by the
staff. One resident, who was cognitively intact, told surveyors that he was
extremely humiliated and angry when he found out that these items were
posted.

16. Nursing Home surveys and deficiencies
 Training requirements include recognizing social media
posting as abuse:
All facilities must develop, implement and permanently maintain an
effective training program for all staff, which includes training on abuse,
neglect, and exploitation . . . Such training would include, but is not
limited to:
– Identifying physical or psychosocial indicators of abuse which
include, but are not limited to:
• Taking or using photographs or recordings of residents in a
demeaning or humiliating manner and sharing them in any
manner, including through the use of technology or social
media

17. Professional Discipline
 Individual nursing home staff may also face professional
discipline for inappropriate actions involving social media.
– These problems are not restricted to CNAs.
 If improper action is done by licensed staff (LPN, RN, etc.),
State boards of professional licensure may initiate
professional disciplinary action.
 Possible professional discipline for failures to prevent,
supervise, investigate (against Administrator, DON, charge
nurse)

18. Criminal Charges
 Elder abuse/failure to
report
 Voyeurism
 Invasion of privacy
 Using a computer to
commit a crime
 Disorderly conduct
 Battery (when video
show hitting)
 Taking a nude phot
without consent
Many State criminal laws may be used to
prosecute employees who post photos/videos
of residents on social media:

19. ProPublica Study
 Episodes of nursing home or assisted living
staff sharing photos or videos of residents
on social media (January 2012-February
2016)
 37 examples

20. ProPublica Study
 Examples
– Photos/videos of residents using bathroom, showering,
getting incontinent care
– Employees hitting, taunting, abusing residents; posing
residents in crude situations; coaching residents to say
“gangsta rap” song lyrics
– Employees doing/posting something positive [holding
hands with residents; “This is my friend”] but posting
without permission
– Photos/videos of staff (no residents) but charts/records
visible

21. ProPublica Study
 37 examples become public knowledge
– 25 examples resulted in government inspections
– 14 examples resulted in criminal charges
– 18 examples resulted in news stories about the
facility
(total more than 37 because some examples result in 2 or 3 outcomes)

22. WHAT ARE THE POTENTIAL
EMPLOYMENT CONCERNS?
What are the Potential
Employment Concerns?

23. Pretty Much Everyone is On
Facebook
1. China
2. India
3. FACEBOOK
4. United States
5. Indonesia
6. Brazil
7. Pakistan
8. Bangladesh

24. Nothing Stays in Vegas
 Social media enters the workplace,
regardless of whether you intend it to.
 Comments and conduct that would be
inappropriate at work, do not suddenly
become appropriate because they are made
via social media.

25. Danger of Electronic Communication:
No Context
 Humor often does not translate through
written communication.
 Absent context, otherwise innocuous texts
or e-mails can be misconstrued or twisted to
something offensive.
 You don’t know how others are using the
content you post

26. Social Media and Healthcare: The Next
Frontier
 Patient Use
 Physician/Hospital Use
 Family/Resident Use
 Ratings/Reviews

27. How Common is Social Media in Health Care?
(or how to impress people at your next
cocktail hour)
 42% of individuals
viewing health
information on social
media look at health-
related consumer
reviews (source: PwC)
 Health topics among
most common searched
on internet (source:
PewResearch)
 81% of hospitals said
service lines expressed
interest in participating
in hospital’s social
media strategy (VHA.
Inc. 2013)
 Increase in hospitals
using social media for
reporting quality and
patient experience

28. And, oh, those reviews
 USC Leonard Davis
School of Gerontology
study (Dec. 2017) found
that Yelp reviewers give
nursing homes less
favorable ratings than
those on Nursing Home
Compare, run by CMS
 How to address reviews

29. In fact, a DC Interactive Group report
found that 26 percent of all hospitals in the
U.S. participate in social media, and
another study revealed 92 percent of all
marketers surveyed indicated their social
media efforts have generated more
exposure for their business.

30. What does all this mean?
 Need for advanced
policies, procedures,
and protocols
 Training must be
enhanced for all who
are potentially
involved in risks.

31. Is the Internet the New Water
Cooler?

32. Hello, National Labor Relations Act
 Section 7 provides that
“employees shall have the
right to self-organization, to
form, join, or assist labor
organizations, to bargain
collectively . . . And to engage
in other concerted activities
for the purpose of collective
bargaining or other mutual
aid or protection.”
 Does not apply to managers

33. NLRB Applies Expansive
Social Media Rules
 Enforcement priority for Board.
 Any action that employees could
“reasonably construe” as restricting Section
7 Rights is prohibited.
 Of 20 social media policies reviewed by GC,
only 4 found to be lawful.
 Employers must focus on why the content
was impermissible.

34. Critical Factors
 Does it affect terms and conditions of
employment?
 Do co-workers comment? (if no comments, then
no concerted activity in some cases)
 Can lose protection if comments are, among other
things, “opprobrious” or disloyal
 Individual gripe—or commenting on terms and
conditions?

35. Decisions are Fact Specific; Not Consistent
 Hispanics United of Buffalo,
Inc. (Sept. 2, 2011)
 Employees could not be
fired for posting on wall of
co-worker who complained
about her co-workers’
performance
 Involves nurses
 Posts by co-workers
protected because deal
with job performance
 Same result where
employees posted concerns
about employers tax-
withholding procedures
 Because all relate to shared
concerns of employee re:
terms and conditions of
employment

36. But, hot dogs?
 Auto dealership employees
complain online and post
pictures where owners
serve hot dogs, cookies and
snacks from a warehouse
club
 Sarcastic comments re:
owner going all-out
 Vocalizing sentiments of co-
workers, so concerted
activity

37. An Example from NLRB website
 Phlebotomist posted a number of angry,
profane comments on Facebook against
coworkers and her employer. The posts
indicated that she hated people at work,
that they blamed everything on her, and
that she wanted to be left alone. A coworker
commented that she, too, had gone through
a similar situation at work.

38. What Happens?
 Employer discharges phlebotomist, finding
the termination was lawful, despite the
coworker’s supportive post. The NLRB
reasoned that the postings were made
solely on the employee’s own behalf, did not
involve sharing of common concerns, and
contained no language seeking to initiate or
induce coworkers to engage in group action.

39. GC Memo on Employer Rules
 March 18, 2015
 “Although I believe that most employers do not draft their
employee handbooks with the object of prohibiting or
restricting conduct protected by the National Labor
Relations Act, the law does not allow even well-intentioned
rules that would inhibit employees from engaging in
activities protected by the Act.”
 Discusses “evolving” areas of law

40. Focus of Report
 Compares policies found lawful with those unlawful
 Focus on the following types of rules: confidentiality,
professionalism, anti-harassment, trademark,
photography/reporting, and media contacts
 Discusses Wendy’s handbook in depth

41. Confidentiality
Not OK:
-”Do not discuss ‘customer or
employee information’ outside of
work including ‘phones numbers and
addresses”
-”Never publish or disclose
confidential or other proprietary
information. Never publish or report
on conversations that are meant to
be internal”
OK:
-”No unauthorized disclosure of
‘business secrets’ or other
confidential information”
-”Do not disclose confidential
financial data, or other non-public
proprietary company information. Do
not share confidential information
regarding business partners, vendors
or customers”

42. So, What’s the Difference?
 “Confidential” is
defined less broadly
 Still ok to reference PHI
or “real” confidential
information
 Employee information
not prohibited
– Section 7 issues
– Wages
– Contact information

43. What can proactively be done?
 Think twice before
“friending” residents or
families
 Keep personal accounts
separate from professional
accounts
 Even if a resident posts
information, do not share
with others
 Avoid unauthorized photos
(this includes at resident
events—before posting)
 Do not comment on pages
of residents
 Understand obligation to
report confidentiality
breach to management
 Understand the social
media platform(s) you are
using (and their privacy
protocols)
 Remember, deleted does
not always mean “deleted”

44. Final thoughts
 Knowledge of and balance between
personal-professional boundaries
 Be proactive; the technology is not going
away and new platforms will be developed

45. Polsinelli provides this material for informational purposes only. The
material provided herein is general and is not intended to be legal
advice. Nothing herein should be relied upon or used without
consulting a lawyer to consider your specific circumstances, possible
changes to applicable laws, rules and regulations and other legal
issues. Receipt of this material does not establish an attorney-client
relationship.
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you should know that past results do not guarantee future results;
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