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 endeavor 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 additionally reported that approximately thirty percent of nursing home residents are taking anti-psychotic drugs.
Although reports with this nature are not 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”), 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 long term care facilities. They were promulgated to improve the quality of care of these residents. The typical goals of OBRA are to:
(a) promote and improve the standard of living of the resident;
(b) provide services and activities to attain or maintain the greatest practicable, physical, mental and psycho social wellbeing of every resident in respect with a written plan of care; 121 Residences PJ
(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.
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 without any unnecessary physical or chemical restraints, including anti-psychotic drugs and sedatives, except when authorized by way of 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 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 provide the resident access to his / her medical records within one business day, and a right 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 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 right to privacy, which extends to all or any areas of care; and
(f) a resident might not be moved to some other room, different nursing home, a hospital or home without advanced notice, and an opportunity for appeal.