A recently available series of articles in the Wall Street Journal have painted a disturbing picture of nursing homes nationwide systematically medicating residents with anti-psychotic drugs in an attempt to control their conduct and behavior. The Wall Street Journal has reported that the utilization of new anti-psychotic drugs to control behavior of dementia patients has surged, despite FDA warnings about the utilization of said drugs. The Center for Medicare and Medicaid Services has also reported that approximately thirty percent of nursing home residents are taking anti-psychotic drugs. 121residences-pj.com
Although reports of the nature aren’t new, they reinforce the necessity for attorneys, families and friends to learn, understand and effectively advocate nursing home residents’rights.
The 1987 Nursing Home Reform Act (“NHRA”), the main Omnibus Budget Reconciliation Act of 1987(“OBRA”), established quality standards for nursing homes nationwide and defined their state survey and certification process to enforce the standards (42 CFR 283.0). These regulations represent minimum standards for long term care facilities. These were promulgated to improve the caliber of care of these residents. The general goals of OBRA are to:
(a) promote and enhance the standard of living of the resident;
(b) provide services and activities to attain or maintain the highest practicable, physical, mental and psycho social well being of every resident relating with a published plan of care;
(c) provide that resident and advocate participation is really a criteria for assessing the facilities compliance with administrator requirements; and
(d) assure use of the State’s Long Term Care Ombudsman (a third party resident advocate) to the facilities residents, and assure that the Ombudsman has use of records, residents and care providers.
A copy of the nursing home resident’s Bill of Rights should be conspicuously posted in the lobby of the facility. While these rights are general in nature, NHRA specifically defines the parameters of every right. As an example, in accordance with medication, NHRA proscribes a resident be free from unnecessary physical or chemical restraints, including anti-psychotic drugs and sedatives, except when authorized by a physician for a specified and limited period of time.
Additionally, the NHRA specifically provides that:
(a) facilities inform the resident of the name, specialty and means of contacting the physicians responsible for the resident’s care;
(b) facilities must inform the resident, his or her guardian or interested family person in any deterioration of the resident’s health or if the physician wishes to improve treatment;
(c) facilities must give you the resident use of his or her medical records within one business day, and a directly to copies of the records at a fair cost;
(d) facilities must provide a published description of a resident’s rights, explaining state laws relevant to living wills, durable powers of attorney, etc., along with a copy of the facilities policy on carrying out these directives. This becomes particularly important when a facility refuses to honor the residents advance directive relevant to end-of-life decisions, the utilization of feeding tubes, ventilators and respirators;
(e) the resident includes a directly to privacy, which extends to all aspects of care; and
(f) a resident may not be moved to another room, different nursing home, a hospital or back without advanced notice, and an opportunity for appeal.