Caregivers are posting photos of soiled and dying nursing home residents. Can hidden cameras protect them?

When the family of 82-year-old Cheryll Scherf grew concerned about the care she was receiving at the Elkader Care Center, they decided to install a motion-activated camera in her room.

In March, the device allegedly captured video of workers repeatedly leaving Scherf in bed, naked from the waist down, with the door to the room left open. The video also showed Scherf wasn’t given her prescribed medication, according to state records.

After seeing the video, state inspectors fined the Elkader home $1,500. Home administrators fired at least one worker, Heidi Mueller, but argued that Scherf, a widow from Farmersburg, had received proper care.

Mueller and a co-worker, Nichole Buckley, both have pleaded not guilty to charges of wanton neglect, dependent adult abuse and tampering with medical records.

Residents and their families can use cameras in nursing homes to discourage or document abuse and neglect — when administrators allow them. But only five states, not including Iowa, have laws that assure that right.

Meanwhile, cameras are being misused by abusive caregivers who photograph residents in humiliating or degrading situations.

In June, a worker at the Manor House Care Center in Sigourney, Iowa, took a photo of a dying resident and then shared it with others through social media with a caption that said the resident was “probably going to go any minute.”

The resident died three hours later. The home was fined $1,000 by state inspectors.

The same worker allegedly had used social media to disseminate photos of two other residents. Appended to one of those photos was the comment, "Crazy mother------.”

No criminal charges were filed against the worker, although Keokuk County Attorney John Schroeder said his office might pursue the matter.

A new form of abuse

Until recently, violating a resident’s right to privacy and dignity through photos and social media didn’t meet Iowa’s legal definition of dependent-adult abuse — unless there was an element of sexual exploitation.

The law was changed July 1 to broaden the definition of abuse.

But a lesser-known state law pertaining to wanton neglect has long made it a crime to knowingly engage in conduct that’s likely to injure the “mental or emotional welfare of a dependent adult.”

Despite that, state regulators say there have been only a few instances of Iowa caregivers being criminally prosecuted for violating residents' rights through the use of cameras and social media.

One example: In 2015, Nakita Lowery, a nurse aide who had worked at Riverside North Enrichment Community in Ames, was fined $575 after pleading guilty to a charge of dependent-adult abuse.

RELATED: Sen. Grassley on how to protect residents in nursing homes

Lowery had shot cellphone video of a resident’s genitals, then shared the video with others through the social networking app Snapchat.

Nationally, the proliferation of cellphones with built-in cameras, coupled with the still-growing popularity of social-media tools for sharing images, has caused a spike in this relatively new form of abuse.

In Iowa, elderly and disabled residents of care facilities have been photographed, filmed and even live-streamed without their consent, often in a degrading or humiliating manner.

“That is a huge issue nationally, and it is growing,” said William Whited, the long-term care ombudsman for Oklahoma.

Many homes have company policies that prohibit workers from carrying their cellphones while tending to residents — but not all employees comply with such rules.

Even in the midst of an April visit by state inspectors, two employees at one Iowa care facility sat in recliners using their cellphones while residents’ call lights went unanswered.

State inspection reports document the manner in which Iowa caregivers have trained their cameras on residents:

• In June, a worker at the Mayvil residential care facility in Cedar Rapids photographed a sleeping resident who had been diagnosed with dementia and was receiving end-of-life care. The photo showed the resident, clad only in a shirt and an incontinence brief while curled in the fetal position, sleeping in urine-soaked sheets. The worker sent the photo to at least two current or former co-workers, including the home’s administrator. She later said she took and shared the photo because she was upset over the lack of care the resident was receiving. But because her actions violated the privacy and dignity rights of the resident, she was suspended. The resident died three weeks later. The home was not fined.
• On May 23, a nurse aide walked into a resident’s room at the Good Shepherd nursing home in Mason City and saw two of her co-workers gathered around the elderly resident’s bed, laughing and staring at their phones. The next day, the aide received a notice that one of the co-workers was initiating a private Facebook conversation with her and four colleagues. She responded and saw a photo of the elderly resident, smiling but without her dentures in place, along with comments from the workers: “Ha ha ha.” “My God.” “Haha.” The home was fined $500.
• In February, a worker at Clarksville Nursing and Rehabilitation Center in Butler County photographed the bare buttocks of a resident who suffered from dementia and the debilitating effects of a stroke, along with the excrement the worker was attempting to clean up. She then sent the photo to at least six people, including three co-workers who failed to report the matter to their boss. Along with the photo, the worker sent a sarcastic message: “I love my job.” The administrator of the home learned of the incident after a member of the community called to report having seen the photo. The worker who took the photo confessed and was immediately fired. The home was fined $2,000.
• In March, a nurse aide at Ennoble Skilled Nursing and Rehabilitation Center in Dubuque used her phone and the Instagram app to transmit live-streaming video of her helping a resident of the home use the toilet. Although the cellphone camera was aimed at the ceiling while the resident was on the toilet, the seven people who had access to the video stream could hear the resident complain of having soiled her clothing. Once the resident was back in bed, her face could be seen in the video, and the worker called the resident by name. The aide was fired after a colleague reported the incident to management, and the home was fined $500.
• In April, a worker at Hawkeye Care Center in Marshalltown shot a cellphone photo of one resident and a video of a second resident, then shared them with her colleagues via Snapchat. The photo, in which a co-worker’s face was superimposed over the resident’s face, appeared to have been taken for the staffer’s amusement. The video, however, was allegedly intended to document poor quality care by co-workers and was appended to a message that read, “Stupid f---ing third shift!” The facility was fined $2,500 — not for the poor care depicted in the video, but for the video itself.
• In 2016, a worker at the Hubbard Care Center in Hardin County was fired after she took a photo of a resident covered in excrement and then sent it, via Snapchat, to six colleagues with the caption, “S--- galore.” The home was initially fined $8,500, but that was later reduced to $1,000 through the appeals process.

Can residents turn their cameras on caregivers?

As illustrated by the Marshalltown video, which was allegedly taken to document poor care, the same technology that can be used against nursing home residents can also be used to protect them.

But most state legislatures, including Iowa, have yet to declare that residents have a legal right to deploy surveillance cameras in their room if the facilities’ owners object.

Iowa law doesn’t address the question of whether residents are entitled to use surveillance cameras in care facilities, and the state inspections agency, attorney general and long-term care ombudsman don’t provide guidance.

In the Elkader case, Cheryll Scherf's use of a nanny cam could have an unintended effect. The lawyer for her accused caregivers is now seeking extensive access to Scherf's medical records, all of the video that was ever captured by the camera and the camera itself.

In other states, residents have had to go to court to assert their right to use such devices.

In Louisiana, for example, attorneys for the AARP Foundation are suing the Heritage Manor care facility on behalf of 92-year-old Ann Graff and her family.

Graff’s daughter says an in-room camera is needed because neither Graff nor the home can explain serious injuries her mother sustained, including a black eye and a broken vertebra.

“It is vital that my mom have this camera in her room,” said Lucie Titus, Graff’s daughter. “The fact that the facility cannot tell me how she was injured leaves me guessing about what she experiences each day. The camera would fill in those gaps.”

Earlier this year, a Minnesota woman installed a $200 “nanny cam” in her mother’s room at the Nielson Place care facility in Bemidji. Workers at the home objected, switching off the camera, draping it with a towel and turning it to the wall.

At one point, the staff seized the camera, which prompted the family to file a police report for theft.

Eventually, the state agency that inspects nursing homes intervened and ruled — without any legislative involvement — that residents have a right to use cameras in their rooms as long as they’re not violating the privacy rights of their fellow tenants.

The state’s long-term care ombudsman publicly supported the decision.

But in Iowa, nursing home residents are largely on their own.

Cynthia Pederson, Iowa’s interim long-term care ombudsman, said the state provides “no legal guidelines” on the use of cameras, and so her office recommends that residents and families contact a lawyer and seek legal advice.

A spokesman for Iowa Attorney General Tom Miller, when asked whether Iowa’s nursing home residents have a legal right to use cameras in their room, said only that “it can depend on many factors.”

The federal Nursing Home Reform Act of 1987 expressly states that “residents have the right to possess and use personal property,” but many nursing homes argue that their right doesn’t extend to the use of cameras.

Disability Rights Iowa, a congressionally chartered organization that advocates for disabled people, said that as long as residents respect the privacy rights of their peers they should have the right to use cameras to protect themselves from abuse or neglect 

But only Illinois, New Mexico, Oklahoma, Texas and Washington have passed laws that explicitly affirm the right of residents to use surveillance cameras — although a few other states have taken steps that suggest that right exists under federal law.

In Utah, for example, lawmakers have considered legislation that would prohibit any care facility from retaliating against residents for using cameras to document their care, and Maryland has established regulatory guidelines on residents' use of cameras.

In New Jersey, the attorney general has expanded a program that originally was intended to let families borrow from state micro-surveillance equipment to monitor in-home caregivers.

Now, those same cameras can be used in licensed nursing facilities and assisted-living centers.

And in Ohio, the owner of several nursing homes was indicted on 39 criminal charges, including forgery and fraud, after Attorney General Mike DeWine’s staff hid surveillance cameras in the rooms of several patients and documented what DeWine called “shocking and disturbing” instances of resident mistreatment.

In January, one of the homes was ordered to repay Medicaid more than $125,000, and its owner was sentenced to 100 hours of community service. Nine staffers, including six nurses, were convicted of forgery or tampering with records.

The law that was passed in Oklahoma four years ago prohibits nursing homes from discharging residents who want to use surveillance cameras or from denying them admittance.

It also has criminalized tampering with the devices. The video recordings belong to the residents and can be used in civil and criminal court proceedings.

 “That’s an important provision of that law,” said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care. “If a resident were to bring suit for neglect or something like that, then that video can be used.”

According to Whited, Oklahoma’s long-term care ombudsman, cameras have been successfully used to provide irrefutable evidence of abuse and neglect in that state but also have acted as an effective deterrent.

Perhaps because of that, he said, the number of confirmed cases of abuse and neglect in Oklahoma has not changed since the legislation was passed four years ago.

“We’ve had residents tell our office of situations in which they’ve filled out all the forms and told the facility, ‘Hey, we’re going to install electronic monitoring in the room,’ and they’ll even have the signs outside the room saying, ‘This room is being electronically monitored,’ but they’ll never actually put the camera in place.

"It’s like those fake security-system signs that people put out in front of their homes; even though they don’t actually have it, the sign is a deterrent.”