A recently available group 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 effort to regulate their conduct and behavior. The Wall Street Journal has reported that the usage of new anti-psychotic drugs to regulate behavior of dementia patients has surged, despite FDA warnings about the usage of said drugs. The Center for Medicare and Medicaid Services in addition has reported that approximately thirty percent of nursing home residents are taking anti-psychotic drugs.
Although reports of this nature aren’t new, they reinforce the need for attorneys, families and friends to learn, 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 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 overall goals of OBRA are to:
(a) promote and boost the quality of life of the resident;
(b) provide services and activities to attain or maintain the highest 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 a criteria for assessing the facilities compliance with administrator requirements; and
(d) assure access to the State’s Long Term Care Ombudsman (a 3rd party resident advocate) to the facilities residents, and assure that the Ombudsman has access to records, residents and care providers. 121 Residences
A copy of the nursing home resident’s Bill of Rights must certanly be conspicuously posted in the lobby of the facility. While these rights are general in nature, NHRA specifically defines the parameters of every right. Like, relative to 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 period of time.
Additionally, the NHRA specifically provides that:
(a) facilities inform the resident of the name, specialty and method of contacting the physicians responsible for the resident’s care;
(b) facilities must inform the resident, their guardian or interested family person in any deterioration of the resident’s health or if the physician wishes to improve treatment;
(c) facilities must provide the resident access to 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., and also 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 usage of feeding tubes, ventilators and respirators;
(e) the resident has a to privacy, which extends to all aspects of care; and
(f) a resident may possibly not be moved to some other room, different nursing home, a hospital or back without advanced notice, and an opportunity for appeal.