A current 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 effort 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 need for attorneys, families and friends to know, understand and effectively advocate nursing home residents’rights.
The 1987 Nursing Home Reform Act (“NHRA”), part 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 haul care facilities. These were promulgated to boost the caliber of care of the residents. The general goals of OBRA are to: 121residences-pj.com
(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 wellbeing of each resident in accordance 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 third party resident advocate) to the facilities residents, and assure that the Ombudsman has use of records, residents and care providers.
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 each right. Like, 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 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 means of contacting the physicians accountable 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 alter treatment;
(c) facilities must provide the resident use of their medical records within one business day, and a right to copies of the records at an acceptable cost;
(d) facilities must provide a published description of a resident’s rights, explaining state laws highly relevant to living wills, durable powers of attorney, etc., plus a copy of the facilities policy on carrying out these directives. This becomes particularly important when a facility won’t honor the residents advance directive highly relevant to end-of-life decisions, the usage of feeding tubes, ventilators and respirators;
(e) the resident features a right to privacy, which extends to all or any aspects of care; and
(f) a resident may not be moved to some other room, different nursing home, a hospital or home without advanced notice, and an opportunity for appeal.