Publications: Ask The Legal Expert - February 2007

What do you think of new federal guidelines concerning surveyors using photographic evidence?

Keeping in mind that each state’s statutes and regulations differ with respect to the use of photographic evidence, the guidelines appear to encourage the use of photography during a survey and are designed to create a proper foundation for their subsequent use at trial. It is thus important for facilities to educate both their staff and residents on the guidelines.

Of particular concern is the resident’s right to privacy. Although the guidelines require the surveyor to request the resident’s written consent to be photographed, where consent is unable to be obtained, the surveyor has the discretion to determine whether the photographs are necessary.

A facility can address this concern is by obtaining either consent or refusal forms from its residents in advance. However refusal forms may be seen by the surveyor as an obstruction to the survey.

Because photographic evidence may be used to demonstrate inadequate facility conditions, staff also must be educated on the guidelines and advised how to deal with a camera-toting surveyor.

Photographic evidence is not to be used in place of documentation, but it is easy to see how this may be difficult to ensure.

Although the state surveyor is not to attach photographs to a statement of deficiencies, the photos should be part of the surveyor’s report.

Reproduced with permission from McKnight's Long-Term Care News

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