The Rights of a Nursing Home Resident
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 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 has additionally reported that approximately thirty percent of nursing home residents are taking anti-psychotic drugs. 121 Residences
Although reports of the nature are not new, they reinforce the requirement 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 their 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 improve the caliber of care of the residents. The overall 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 wellness of every resident in respect with a published plan of care;
(c) provide that resident and advocate participation is really 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 be conspicuously posted in the lobby of the facility. While these rights are general in nature, NHRA specifically defines the parameters of every right. As an example, relative to medication, NHRA proscribes that a resident be free from unnecessary physical or chemical restraints, including anti-psychotic drugs and sedatives, except when authorized by a physician for a specified and limited amount 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, his or her guardian or interested family person in any deterioration of the resident’s health or if the physician wishes to alter treatment;
(c) facilities must supply the resident access to his or her medical records within one business day, and a directly to copies of the records at a fair cost;
(d) facilities must provide a published description of a resident’s rights, explaining state laws relevant to living wills, durable powers of attorney, etc., and also 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 usage of feeding tubes, ventilators and respirators;
(e) the resident features a directly to privacy, which extends to all or any areas of care; and
(f) a resident may possibly not be moved to another room, different nursing home, a hospital or back without advanced notice, and an opportunity for appeal.