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CMS Responds To Outrageous Social Media Posts

Nursing homes need to have (or get) a social media policy, and those facilities need to know where that social media policy is located when the state surveyors arrive.

The Centers for Medicare and Medicaid Services (CMS) has directed state survey agencies to begin examining the social media policies of nursing homes. The directive from CMS is based upon multiple instances of nursing home employees posting outrageous pictures of nursing home residents to social media sites. We are not talking about flattering pictures taken with your grandma's consent. Instead, nursing home employees have reportedly been posting pictures of nursing home residents nude, unkempt and in other compromising situations. Nursing homes need to have (or get) a social media policy, and those facilities need to know where that social media policy is located when the state surveyors arrive.

While the current directive is targeting nursing homes, other facilities should expect similar inquiries in the near future. Outrageous social media posts have not been limited to the nursing home industry. Just days before CMS sent its directive, there were several news reports of an emergency department nurse in Chicago posting gory pictures and commentary about some of the trauma cases in the emergency department. The emergency department nurse has been sued individually by the family of one patient, along with the hospital where she was employed based upon the nurse's social media post. I do not know for sure that the nurse is a former employee, but I am fairly confident the nurse's days are numbered at that hospital if she has not already been terminated.

RTs and other employees of healthcare facilities that want to remain employees of healthcare facilities should examine their own social media conduct. For most, the examination shouldn't take long; for the rest, you have been forewarned.

SEE ALSO: Data Breaches: Preventing Inside Jobs

Healthcare facilities have zero tolerance for outrageous and unprofessional conduct that shows lapses in judgment. Healthcare facilities seem to have adopted a one-strike and you are out approach to most infractions by employees, and lapses in judgment in particular. Some employers terminate employees for any questionable conduct that focuses unwanted attention on the employer, and in most instances the employee has no recourse.

Having a social media policy and being on top of it can help facilities avoid embarrassing and legally compromising situations.The newly fired often claim they were exercising their right to free speech guaranteed by the United States Constitution. The First Amendment to the United States Constitution prohibits the government from making any law abridging the freedom of speech. However, the First Amendment does not prohibit a private employer from taking adverse employment action against an employee based upon the employee's speech. Basically, employers are allowed to take adverse action against an employee for the employee's speech unless a specific law protects that speech, and there are not that many laws protecting the speech of employees.

The National Labor Relations Act (NLRA) protects the right of employees to engage in concerted activity regarding the terms and conditions of employment. The National Labor Relations Board (NLRB) has ruled that an employee's social media post was concerted activity protected by the NLRA, but the NLRB has also upheld an employee's termination based upon a social media post that did not qualify as concerted activity. An individual employee's demeaning rants about a patient, a group of patients, the social ills of an inner city hospital or showing the actual neglect or abuse of nursing home patient is probably not protected activity under the NLRA.

An employee's social media post that exposes an employer to an investigation and possible sanctions would also not be protected. The Health Insurance Portability and Accountability Act (HIPAA) limits the disclosure of Protected Health Information (PHI). Any disclosure of PHI that is not permitted by HIPAA can expose an employer to an investigation and sanctions by the Office of Civil Rights. A social media post could easily include enough information to identify a particular patient even without including the patient's demographic information. For example, if I discuss a shooting at Ford's Theater in Washington, D.C. followed by an ankle injury, most people can identify the two individuals involved. That information is no longer protected by HIPAA. However, a more contemporary social media post by a healthcare facility employee that is covered by HIPAA including sufficient information to identify an individual could easily result in an adverse employment action.

RTs and other employees of HIPAA covered entities should probably expect a renewed focus on social media policies by their employers. Those individuals caught posting outrageous content to social media should probably anticipate some form of adverse action by their employers.

Michael L. Smith, JD, RRT is board certified in health law by The Florida Bar and practices at The Health Law Firm in Altamonte Springs, Fla. This article is for general information only and is not a substitute for formal legal advice.

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