A recent 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 attempt to manage their conduct and behavior. The Wall Street Journal has reported that the usage of new anti-psychotic drugs to manage 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 with this nature aren’t new, they reinforce the requirement for attorneys, families and friends to know, understand and effectively advocate nursing home residents’rights. 121 Residences
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 the state survey and certification process to enforce the standards (42 CFR 283.0). These regulations represent minimum standards for longterm care facilities. These were promulgated to boost the caliber of care of the residents. The overall 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 highest practicable, physical, mental and psycho social well being of each resident relating with a written 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 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.
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 each right. For instance, relative to medication, NHRA proscribes that the 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 means of contacting the physicians responsible for the resident’s care;
(b) facilities must inform the resident, his / her guardian or interested family member of any deterioration of the resident’s health or if the physician wishes to change treatment;
(c) facilities must supply the resident access to his / her medical records within one business day, and a to copies of the records at an acceptable cost;
(d) facilities must provide a written description of a resident’s rights, explaining state laws strongly related living wills, durable powers of attorney, etc., plus 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 strongly related end-of-life decisions, the usage of feeding tubes, ventilators and respirators;
(e) the resident includes a to privacy, which extends to any or all areas of care; and
(f) a resident may not be moved to another room, different nursing home, a hospital or home without advanced notice, and an chance for appeal.