A current 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 use of new anti-psychotic drugs to control behavior of dementia patients has surged, despite FDA warnings about the use of said drugs. The Center for Medicare and Medicaid Services has additionally reported that approximately thirty percent of nursing home residents are taking anti-psychotic drugs. 121 Residences
Although reports of the nature are not new, they reinforce the requirement for attorneys, families and friends to know, understand and effectively advocate nursing home residents’rights.
The 1987 Nursing Home Reform Act (“NHRA”), part of the Omnibus Budget Reconciliation Act of 1987(“OBRA”), established quality standards for nursing homes nationwide and defined the state survey and certification process to enforce the standards (42 CFR 283.0). These regulations represent minimum standards for long haul care facilities. These were promulgated to improve the caliber of care of the residents. The typical goals of OBRA are to:
(a) promote and boost 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 in accordance with a published plan of care;
(c) provide that resident and advocate participation is a criteria for assessing the facilities compliance with administrator requirements; and
(d) assure usage of the State’s Long Term Care Ombudsman (a third party resident advocate) to the facilities residents, and assure that the Ombudsman has usage 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. For instance, in accordance with medication, NHRA proscribes that a resident be free from unnecessary physical or chemical restraints, including anti-psychotic drugs and sedatives, except when authorized with a physician for a specified and limited amount of time.
Additionally, the NHRA specifically provides that:
(a) facilities inform the resident of the name, specialty and means of contacting the physicians in charge of the resident’s care;
(b) facilities must inform the resident, their guardian or interested family member of any deterioration of the resident’s health or if the physician wishes to improve treatment;
(c) facilities must supply the resident usage of their medical records within one business day, and a to copies of the records at an acceptable 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 each time a facility refuses to honor the residents advance directive relevant to end-of-life decisions, the use of feeding tubes, ventilators and respirators;
(e) the resident includes a to privacy, which extends to all or any facets of care; and
(f) a resident might not be moved to a different room, different nursing home, a hospital or back home without advanced notice, and an opportunity for appeal.