James Dempsey was an 89-year-old veteran staying in a nursing home outside Atlanta when, in 2014, his son installed a video camera to keep an eye on him. When Dempsey died that year, the video uncovered disturbing footage of his final moments in the home. Dempsey can be seen calling repeatedly for help on the video, saying he can’t breathe as nurses appear to shrug off his complaints and even, at one point, can be seen laughing.
The video triggered widespread outrage and led to charges against three nurses at the facility, who have denied any wrongdoing.
Now, the video itself—and whether a jury will ever see it—has become a source of contention. Defense attorneys have argued that the camera was illegally placed in the facility, in a public dispute over security, privacy, and a family’s right to monitor its relatives.
The video has led to a ruling by the state Supreme Court, proposed legislation, and fierce debate, as other states consider their own bills on the issue, and the same questions echo across the country: Who should be allowed to place cameras in homes and other long-term care facilities? Who can they record? Hidden or in plain view? And what can be done with the footage?
“We want to respect the privacy of the roommates and the residents,” said Nancy Pitra, associate state director of advocacy at AARP Georgia. “But we also want to make sure that we are doing what we think is the best thing to really improve care.”
Why the Sudden Interest?
As of last year, about a dozen states already had laws or regulations allowing families to place cameras in nursing homes, according to the Associated Press. In some cases, those rules have been on the books for years, but the pandemic has brought new urgency to the idea, and a handful of other states, including Missouri, Ohio, Connecticut, Michigan, and Georgia, have considered similar measures.
For families, the rationale is simple. As devastating as COVID-19 was for the United States as a whole, the way it swept through eldercare facilities was especially brutal. Deaths among Medicare recipients in nursing homes jumped by nearly 170,000 in 2020 compared to the previous year, according to a recent government watchdog report.
The spread of the virus, in some cases, also raised concerns about whether facility operators were doing enough to keep residents safe. Now, some are even being criminally charged for how they acted during the pandemic.
As some facilities shut off visitor access to slow infections, the idea of a way to remotely monitor residents became more appealing. Families want to keep an independent check on their loved ones, and some say cameras ensure care workers can be held accountable for any wrongdoing.
Nursing home footage has a years-long history of leading to criminal prosecutions in states besides Georgia, and advisory groups in some states are now explicitly endorsing the idea as a COVID-era reform for care facilities.
But the idea is still controversial in some quarters. The eldercare industry, in particular, has raised privacy concerns about the laws allowing cameras in facilities, arguing that they unnecessarily put workers under surveillance and could capture footage of unwitting residents.
It’s not just the industry that has concerns, either. Clara Berridge, an assistant professor at the University of Washington who has studied the use of cameras in care homes, said she has empathy for anyone who feels the need to install a camera but that it comes at a real cost. Residents and their neighbors lose privacy, workers feel mistrusted, and surveillance won’t fix the bigger problems of underpaid and overworked staff.
“Use of cameras is a symptom of a major problem,” she said. “It’s not a solution.”
How Far Should the Law Go?
Take Michigan, where a debate over such a law has been unfolding recently. Three years after first being introduced, a bill that would allow cameras inside nursing homes was picked back up by lawmakers last year amid the pandemic.
The legislation ran into resistance, though, including from a union representing nursing home workers, which expressed concern that footage from cameras could be used by the facility against workers involved in union advocacy.
A long-term care association in the state did ultimately support the bill, which was passed by the state’s legislature late last year, largely by Republicans on partisan lines, according to Michigan Live, but Gov. Gretchen Whitmer declined to sign the bill into law, opting to let it die in January. Whitmer’s office didn’t respond to a request for comment from The Markup.
The details of how such laws are structured can make a big difference in whether they gain traction. Should the cameras be allowed to be hidden or only out in the open? Should the footage be allowed in lawsuits? Who gets to sign off on the release of that footage?
In Missouri, some of those questions came to a head last year as the state legislature debated how to weigh privacy and safety concerns in a bill that would allow cameras in facilities. Ultimately, according to the St. Louis Post-Dispatch, the healthcare industry agreed to a compromise bill that allows footage to be released only with the consent of residents or their families and the nursing home operator itself. The Missouri law went into effect in August.
In other states, the issue still hasn’t been resolved.
What’s Happening in Georgia?
After Dempsey’s death, defense attorneys argued that the footage was taken illegally and should therefore be inadmissible in a criminal proceeding, eventually appealing it to the state’s Supreme Court.
In December, the court issued a ruling that, while it’s generally illegal in the state to record someone in a private place without his or her consent, any “occupier of real property” can install and use cameras for security purposes. Dempsey’s and his family’s actions fell under that exemption, the court ruled.
That brought new urgency to the issue in the state, since the ruling seemed to give families permission to place hidden cameras in nursing homes. Pitra said the AARP had recommended pro-camera legislation to lawmakers in the past but that it failed to gain traction until the court ruling.
Months of debate over potential legislation followed the ruling, with some legislators pushing for a law that would partially roll back the court’s decision by allowing the use of cameras in plain sight but blocking the use of hidden-camera footage in lawsuits against nursing home operators.
Tony Marshall, president and CEO of the Georgia Health Care Association, an industry association that represents nursing homes and other long-term care facilities in the state, argues that the idea was to promote in-view cameras, which could actively deter abuse, instead of hidden cameras that secretly catch wrongdoing and are used as evidence after the fact.
“The incentive was to try to prevent bad behavior from ever occurring,” Marshall said.
For some advocates like Pitra, that wasn’t going far enough.
“You can’t say, hey, there’s this great evidence out there, but we’re only going to let you use it against the caregiver and not against the facilities,” Pitra said. “You’ve got to have some accountability.”
Ultimately, the bill was tied up over the question of hidden cameras, with eldercare advocates cheering as the legislative session adjourned for the year. The bill’s death was a high-profile example of how contentious the issue is. Pitra said the issue will likely be taken up by lawmakers again next year.
“I think we’re going to be starting over with a new bill, but we’re hoping to have some discussions with all the stakeholders to see where everyone is,” she said. “Because it would be nice if we could all at least start off on some things that we agree on.”