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 regulate their conduct and behavior. The Wall Street Journal has reported that the utilization of new anti-psychotic drugs to regulate 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.
Although reports with this nature aren’t new, they reinforce the requirement for attorneys, families and friends to understand, understand and effectively advocate nursing home residents’rights.
The 1987 Nursing Home Reform Act (“NHRA”), area 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. They certainly were promulgated to enhance the grade of care of these residents. The general goals of OBRA are to:
(a) promote and improve the quality of life of the resident;
(b) provide services and activities to attain or maintain the best practicable, physical, mental and psycho social wellbeing of every resident in respect with a published plan of care;
(c) provide that resident and advocate participation is just a criteria for assessing the facilities compliance with administrator requirements; and
(d) assure use of the State’s Long Term Care Ombudsman (a 3rd party resident advocate) to the facilities residents, and assure that the Ombudsman has use of records, residents and care providers. 121 Residences PJ
A copy of the nursing home resident’s Bill of Rights must 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, relative to medication, NHRA proscribes that the resident be without any 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 way 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 alter treatment;
(c) facilities must provide the resident use of his or her medical records within one business day, and a directly to copies of the records at an acceptable cost;
(d) facilities must provide a published description of a resident’s rights, explaining state laws strongly related 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 will not honor the residents advance directive strongly related end-of-life decisions, the utilization of feeding tubes, ventilators and respirators;
(e) the resident includes a directly to privacy, which extends to all or any areas of care; and
(f) a resident might not be moved to another room, different nursing home, a hospital or back home without advanced notice, and an chance for appeal.