A recent number 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 use of new anti-psychotic drugs to regulate behavior of dementia patients has surged, despite FDA warnings about the use 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. 121 Residences PJ
Although reports with this nature aren’t new, they reinforce the necessity for attorneys, families and friends to understand, 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 haul care facilities. These were promulgated to enhance the caliber of care of their residents. The overall 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 best practicable, physical, mental and psycho social well being of each resident in respect with a written 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 each right. For instance, in accordance with 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 way of contacting the physicians accountable 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 change treatment;
(c) facilities must provide the resident usage of his or her medical records within one business day, and a to copies of the records at a fair cost;
(d) facilities must provide a written 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 whenever a facility won’t honor the residents advance directive relevant to end-of-life decisions, the use of feeding tubes, ventilators and respirators;
(e) the resident features a to privacy, which extends to any or all facets of care; and
(f) a resident may not be moved to another room, different nursing home, a hospital or back home without advanced notice, and an opportunity for appeal.