Are Nursing Homes Unnecessarily Medicating their Residents?:
The Importance of Knowing the Rights of a Nursing Home Resident
by: Anthony J. Enea, Esq.
A recent 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 attempt to control their conduct and behavior.
The Wall
Street Journal has reported that the use of new anti-psychotic
drugs to control behavior of dementia patients has surged,
despite FDA warnings about the use of said drugs.
The Center
for Medicare and Medicaid Services has also reported that
approximately thirty percent of nursing home residents are
taking anti-psychotic drugs.
Although, reports of this nature are not 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 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 their residents. The general goals of
OBRA are to:
(a)
promote and enhance 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 in accordance 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 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.
The goals are implemented by NHRA establishing the
Resident’s Bill of Rights:
The right to freedom from abuse,
mistreatment, and neglect;
The right to freedom from physical
restraints;
The right to privacy;
The right to accommodation of medical,
physical, psychological, and social needs;
The right to participate in resident
and family groups;
The right to be treated with dignity;
The right to exercise selfdetermination;
The right to communicate freely;
The right to participate in the review
of one’s care plan, and to be fully informed in
advance about any changes in care, treatment, or
change of status in the facility; and
The right to voice grievances without
the discrimination or reprisal.
A copy of the 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.
For example, relative to medication, NHRA proscribes that a
resident be free of unnecessary physical or chemical restraints,
including anti-psychotic drugs and sedatives, except when
authorized by 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 residents care;
(b)
facilities must inform the resident, his or 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 or
her medical records within one business day, and a
right to copies of the records at a reasonable cost;
(d)
facilities must provide a written description of a
residents 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
when a facility refuses to honor the residents advance
directive relevant to end-of-life decisions, the use
of feeding tubes, ventilators and respirators;
(e)
the resident has a right to privacy, which extends to
all aspects of care; and
(f)
a resident may not be moved to a different room,
different nursing home, a hospital or back home
without advanced notice, and an opportunity for
appeal.
In short, familiarity with OBRA and NHRA will provide the
practitioner with a better awareness of protocols for the
following relevant areas:
Abuse, including unnecessary or excessive
restraints.
Pressure sores, infections, falls and fractures.
Adverse drug reactions and over-medication.
Nutrition, hydration, and unintended weight loss.
Dining and Food Service.
Sufficiency of staff, including nursing.
Rehabilitative care, including physical therapy
and speech therapy.
As the baby boomers come of age it is inevitable that a
significant number of them will spend some time in a
nursing home.
Knowledge of their rights will be of
critical importance for their lawyers, families and
friends.
Anthony J. Enea, Esq. is a member of Enea, Scanlan and
Sirignano, LLP. with offices in White Plains and Somers,
N.Y.
His firm concentrates its practice on Elder Law, Medicaid
Planning, Medicaid Applications, Guardianships and Trusts
and Estates Law, as well as Medical Malpractice and Nursing
Home Negligence.