Do elder abuse laws need to be updated to reflect social media?

There’s a new type of elder abuse in town: social media abuse. Unfortunately, it may also not be against the law.

In a recent example, a certified nursing assistant posted an unflattering photo online of a nursing home resident, depicting him in his underwear, his pants down around his ankles, and his legs covered in feces. Although state health officials in the jurisdiction launched an investigation, they did not make any charges under the applicable statute. The reason: social media apps did not exist at the time the elder abuse law was passed.

The nursing assistant did lose her job. However, that termination reflected only the actions of her employer. Under the state statute, the provision against sexual exploitation did not apply because the resident was not naked. As a result, the nursing assistant did not receive any discipline. That means she is still eligible to work in other nursing homes.

Should a privacy violation constitute nursing home abuse? Many state statutes do not contemplate this scenario, although it may be high time they did. Another story by a non-profit entity uncovered almost three-dozen similar incidents across the country, many involving humiliating photos of elderly residents posted on the Snapchat app.

There is potentially a remedy available under federal patient privacy law, specifically the Health Insurance Portability and Accountability Act. However, the U.S. Department of Health and Human Services has not yet taken action against long-term care facilities for social media abuse.

Although an isolated hurtful photo may not necessarily indicate systemic neglect, it should prompt an inquiry into the quality of care that an elderly loved one is receiving in a nursing home or assisted living facility. Our nursing home abuse attorneys are experienced in investigating such matters.

Source: NPR, “Social Media Abuse Of Nursing Home Residents Often Goes Unchecked,” Charles Ornstein and Jessica Huseman, July 14, 2016

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