Editor's note: This story contains language that some may find offensive.
When a certified nursing assistant in Hubbard, Iowa,
shared a photo online
in March of a nursing home resident with his pants around his ankles,
his legs and hand covered in feces, the most surprising aspect of state
health officials' investigation was this: It wasn't against the law.
The Iowa law designed to protect dependent adults from abuse was
last updated in 2008,
before many social media apps existed. It bars "sexual exploitation of a
dependent adult by a caretaker," which would have applied if the photo
showed the resident's genitals. It didn't.
The nurse assistant
was fired from Hubbard Care Center after a co-worker reported her to
supervisors, but the state was unable to discipline her at all. She
remains eligible to work in any nursing home in the state. Government
documents did not name her.
"This was something no one
expected," says David Werning, a spokesman for the Iowa Department of
Inspections and Appeals, of the case. The nurse assistant had used
Snapchat to send the photo of the resident, who has dementia, to six
colleagues, along with the caption "shit galore," according to
government reports.
"What
we have is a very disgusting and humiliating situation," Werning says.
"But it does not meet the definition of sexual exploitation, and I think
that was a surprise to everybody."
Now Iowa officials are
working to update the law to address changing technology, he says, "so
we won't be caught off-guard again."
The Iowa incident is just
one illustration of how regulators and law enforcement officials
nationwide are struggling to respond when employees at long-term care
facilities violate the privacy of residents by posting photos on social
media websites.
In a
story published last year,
ProPublica identified nearly three dozen of these cases, the majority
involving Snapchat, a social media service in which photos appear for a
few seconds and then disappear. We've discovered nine more instances
since then, including one in which a youth volunteer at a Colorado
nursing home
shared a selfie on Snapchat that showed a 108-year-old resident urinating. (You can read details of each incident
here.)
Following ProPublica's earlier coverage, Sen. Charles Grassley, the Iowa Republican who chairs the Senate Judiciary Committee,
sent letters to social media companies
and federal agencies asking what they are doing to stop the abuse. He's
taken Snapchat, in particular, to task because he says its online tool
for reporting suspected abuse requires the affected person to file a
complaint — a near impossibility for elderly people with dementia.
"When
an individual tries to report a safety concern on behalf of someone
else, say, an elderly nursing home resident, the tool produces the
message: 'We are unable to take action based on third-party reports,' "
Grassley wrote to Snapchat
on June 28. "An elderly nursing home resident victim is unlikely to
have his or her own Snapchat account or have the knowledge or ability
necessary to report abusive snaps on his or her own behalf."
Snapchat's website gives people
several avenues to file complaints.
But the pathway to report elder abuse isn't straightforward,
particularly for those unfamiliar with the app, which is popular among
teenagers.
In
replies to Grassley,
Facebook and Snapchat have said they are doing what they can to deal
with abusive pictures and videos that violate their terms of service.
"Although
we cannot prevent physical abuse from occurring — whether in a nursing
home or schoolyard — Snapchat is fiercely committed to terminating the
accounts of Snapchatters who we believe have engaged in abusive
behavior," Snapchat's general counsel
Chris Handman wrote
to the senator.
Facebook, which also owns Instagram, says it removes images depicting sexual violence and
generally prohibits nudity. Anyone can report abusive content, the company says.
Grassley's
pressure also has regulators re-examining their handling of these
cases. In a letter to the senator, Assistant Attorney General
Peter J. Kadzik wrote
that while the Justice Department has gone after nursing homes for poor
care, "we have not yet brought any cases involving allegations of
nursing home employees misusing social media or electronic devices to
record elder residents in compromising positions. We wholeheartedly
agree that such conduct is deeply troubling and unacceptable." The
Justice Department said it would share the concern with its Elder
Justice Task Forces "to ensure that they are especially attuned to
allegations of such conduct."
Some state and local prosecutors
have been more aggressive in pursuing such cases under laws that
prohibit elder abuse, sexual exploitation and indecency. In Colorado,
for example, the volunteer who took a selfie with the 108-year-old
resident who was urinating has been charged in juvenile court with
invasion of privacy.
The Office for Civil Rights within the
U.S. Department of Health and Human Services could take action in such
cases as part of enforcing the federal patient privacy law known as
HIPAA. But that agency has not penalized any long-term care facility for
photos posted online and has yet to release any social media guidance
for nursing homes. An official tells ProPublica that guidelines are in
the works.
The nursing home industry isn't waiting. Last month, the industry's trade group
issued its own suggestions
for dealing with such situations, encouraging training and swift
responses by these facilities when allegations are brought to light. The
group also is holding training events around the country.
Dianne De La Mare,
vice president of legal affairs at the American Health Care
Association, says nursing home companies are "all struggling with this."
"We don't want this stuff to happen anymore. To the greatest degree we can stop it, we want to," she says.
The
trade group notes that most instances of abuse have been reported by
other staff members — a sign that most workers are diligent and do not
tolerate such actions — but that some homes also hire outside companies
to monitor social media.
While many facilities ban the use or
possession of cellphones by employees when in resident areas, De La Mare
says, they've also found such rules impractical to enforce
"A
lot of the younger people — your phone is like your wallet," she says.
"You would never be without your phone ... It's really difficult for
[nursing home officials] to say, 'We understand you're a single mom; you
need to keep track of your kids, but that stays in your purse.' It's a
challenge, I have to tell you that."
As the Iowa case demonstrates, even nursing homes eager to respond to incidents responsibly face obstacles.
When
it learned of the photo of its resident covered in feces, Hubbard Care
Center contacted its local sheriff's office. The law enforcement
officials did not create a report or press charges; instead they
encouraged the nursing home to contact health regulators, says Hardin
County Deputy Sheriff Jeffrey Brenneman. The state investigated and
initially fined the facility $8,500,
which it reduced to $1,000 on appeal.
Officials determined there was no evidence the facility knew or should
have known that the assistant "might engage in such outrageous actions."
And state officials learned that the law wasn't written with these situations in mind.
Kendall Watkins, a lawyer for the nursing home, calls the incident an "isolated act" to which the facility responded quickly and appropriately.
The
nursing home has already updated its policy to define "exploitation" of
residents to include "transmission, display, taking of electronic
images of the dependent adult by a caretaker in a private or compromised
situation (i.e. using the bathroom, changing clothes, personal cares)
for a purpose not related to treatment or diagnosis or as part of an
ongoing investigation."
Grassley says the incident in his home
state troubled him. "It speaks to the lowest instincts of humankind that
you never expect people to do," he says.
"If you're a
worker there, if you were really concerned about the patient, why
wouldn't you start immediately cleaning people up?"
Has your medical privacy been compromised? Help ProPublica investigate by filling out a short questionnaire. You can also read other stories in our Policing Patient Privacy series.
Full Article & Source:
Social Media Abuse Of Nursing Home Residents Often Goes Unchecked
