Armed and dangerous: surveys come equipped with cameras under new photographic evidence guidelines.

On September 29, 2006, CMS released principles for the use of photography during nursing home surveys. Although photography has always been a valid method of collecting information during surveys, there has been little emphasis placed on this method until now.

With the publication of Survey and Certification Letter 06-33 to state survey agency directors, it seems the federal government is now encouraging state survey agencies to integrate this method of data collection into their procedures.

The use of photography, however, remains the decision of the state survey agency and is not yet required. When a survey agency begins collecting photographic evidence, it is likely to occur initially during complaint investigations, especially those alleging abuse or neglect. Previously it occurred during routine annual surveys.

The principles for the use of photography provided to states by CMS are said to offer basic assistance to surveyors who want to collect photographic evidence during inspections. Each state survey agency is also expected to develop its own policies for the use of photography during surveys. The principles are outlined in the box on p. 9.

If your state survey agency chooses to include photography as a method of information collection during surveys, it is important that you work with your long-term care associations to encourage the state agency to release its respective policy on photographic evidence. It is reasonable for you to know what to expect from surveyors whose procedures include photographic evidence.

Don't be intimidated 

Surveyors with cameras will likely boost feelings of intimidation during survey time for everyone in your facility. Observe the following to prepare your staff, your residents, and your residents' families for the possibility that surveyors will show up with cameras:

1. Educate your staff first. Your team will likely receive questions about this practice from residents and families, and they should be able to respond appropriately the first time they are asked without referring the question to someone else. This type of response provides a sense of security that all of your residents and families should feel when they or their loved ones are in your care. Your staff should do the following:

* Know the survey procedures. Surveyors know what you are supposed to be doing; your staff members should also know what they should be doing.

* During a survey, observe the surveyors and make notes. Everyone should be involved in this activity when not being directly observed by a surveyor. Collect the notes each day for a survey file.

* Provide accurate and clinically factual documentation. If documentation is a problem in your facility, work on improving it. Inconsistencies between photographs and documentation can be very damaging. Additionally, poor or inaccurate documentation may lead surveyors to problem areas within your facility.

2. Educate your residents next. Begin by meeting with the resident council officers to explain these photographic principles. Solicit their advice and participation on how best to proceed with communicating the information to other residents in your facility. When providing information to other residents, remember the following:

* Be calm and reassuring

* Stick to the facts while explaining the principles of photographic evidence

* Avoid opinions, emotions, or attitudes, as these can be damaging

* Emphasize the confidentiality of photographs and that residents' refusal to be photographed is acceptable without consequences

* Provide plenty of time for questions and concerns

* Realize there maybe a delayed response while residents think about this information

* Be alert and sensitive to the feelings of individual residents; some may be uncomfortable voicing concerns or may need to voice concerns in private

3. Educate your residents' families afterward. When providing information regarding photographic evidence to families, remember the following:

* Use the same basic methods outlined above for residents

* Realize that the reaction of families will be different based primarily on two things:

--Their feelings about placement of a loved one in a long-term care facility 

--Their confidence and trust in the caregivers (past or present)

* Answer questions directly, honestly, and sincerely

It might be best to discuss photographic evidence with residents and families at the same time, as the subject will certainly generate conversation. This should be a judgment call for the facility, depending entirely on the individual circumstances of its residents and their families.

What's more, having a consent release form for residents and families to read and ponder at the time of education may also be helpful. You should emphasize that the consent doesn't need to be signed until or unless the resident or legal surrogate wishes to do so, and that a signed consent form may be rescinded at any time the resident or legal surrogate chooses.

Just say no

When addressing CMS' principles of photographic evidence, I am repeatedly asked one question: "Isn't there any other way?"

Well, the answer is, "Yes." Noncompliance has been demonstrated for years without photographs. And remember, photography is to be used to "support a finding of noncompliance."

In other words, noncompliance should already be demonstrated and documented before surveyors take photographs. The photographs are supposed to be used to enhance the findings that have already been determined. So, for those residents who need reassurance that "no" is an acceptable answer, remember: It is okay for them to say no.

CMS' principles for the use of photographic evidence

> The camera and film used must be the property of the state.

> Photographs are to support written documentation of noncompliance.

> To the greatest degree possible, the surveyor is to obtain the resident's written permission before photographs are taken.

> An individual's refusal should always be respected.

> Regarding the photography of the rectal, genital, or female breast area, the following apply:

* A member of the nursing staff must be present, and written consent must be obtained.

* If the resident is unable to give consent, the surrogate may give consent unless the surrogate is suspected of abusing the individual.

* If the resident is unable to give consent, and the legal surrogate is not present, the surveyor may use discretion.

* Only a surveyor who is a licensed nurse, physician assistant, or physician may take photographs of these areas.

> Surveyors should avoid taking photographs revealing identifying characteristics of the individual.

> A complete set of photographs must be obtained.

> A complete set contains at least three photographs, including the following:

* An overview of the entire scene.

* A mid-range photo with relevant objects in immediate surroundings.

* A close-up providing detail and measurements.

> All photographs must adhere to these guidelines:

* They must be treated with the confidentiality of a medical record.

* They are to enhance, but not replace, written documentation.

* Photos require specific documentation in surveyor notes for each one taken, and photos cannot be modified.

* They should not be included in the CMS-2567 Statement of Deficiencies.

--Ellen J. Mullins, RN

Ellen J. Mullins, RN, BSN, CRNAC, is the CEO of Integrity Health Care Solutions, LLC, in Montgomery, AL. Services for long-term care facilities include education, computer assistance, mock surveys, HIPAA compliance, regulatory compliance, project development, and the analysis and evaluation of facility systems and processes. Mullins spent more than 13 years as a state surveyor, State RAI Coordinator, and OASIS Education Coordinator for the State of Alabama. Contact her at 334/270-1199 or [e-mail].

BY ELLEN J. MULLINS, RN, BSN, CRNAC