Overmedication in nursing homes

NY Times had a great article on the too common practice of overmedicating residents in nursing homes.  Nursing homes often chemically restrain residents because it is easier:  No complaints, no call bells, no requests.   Management can then staff less people on certain shifts especially at night.  Paula Spann wrote a great article.

Within three months of admission, a team of University of South Florida researchers determined, 71 percent of Medicaid residents in Florida nursing homes were receiving a psychoactive medication — an antidepressant or anti-psychotic, or dementia drugs — even though most were not taking such drugs in the months before they moved in and didn’t have psychiatric diagnoses. 15 percent of residents were taking four or more such medications.  Only 12 percent were getting nondrug treatments like behavioral therapy.

The article mentions Victor Molinari, a professor of aging at the University of South Florida and lead author of the study.  He wasn’t startled by those statistics. “They confirmed what I suspected,” he told me in an interview. “And people who work in nursing homes wouldn’t be surprised.  It seems the use of psychoactive medication is trumping the use of nondrug treatments,” Dr. Molinari said.   And given the possible interactions with the many other drugs most residents take, an average 10 or more prescriptions, “it could well be that we’re causing problems like falls, confusion and delirium, and hospitalizations,” he cautioned.

Nursing homes’ reliance on psychoactive drugs has troubled professionals in geriatrics for years.   In many states, residents being admitted directly from hospitals are exempt from screening.  As a result, federal data show, fewer than half of residents with major mental illnesses receive the mandated assessment.  Only half of nursing homes provide weekly patient consultations with psychiatrists, psychologists or other mental health experts; even fewer provide consultations with those who specialize in working with seniors. In addition, staffs are stretched thin and inadequately trained in mental health care. With a pill a quicker and simpler intervention than the alternatives, intentional overuse is the result.   If the aide had fewer patients to care for or if management increased staffing numbers, and more time to soothe one who was agitated, if she’d had better training in responding to behavioral problems, she might be able to handle behavioral issues.  

The Justice Department brought criminal charges against Eli Lilly, accusing the big pharmaceutical firm of illegally marketing its anti-psychotic Zyprexa to doctors who work in nursing homes and assisted living facilities, and encouraging them to prescribe it for sleep disorders and dementia. Its approved use is to treat schizophrenia and bipolar disorder. Lilly agreed to pay $1.4 billion in a related civil settlement.

“For years, I’ve had calls from family members saying, ‘Mom was completely lucid when she went into the nursing home, and a week later she no longer recognized us,’” said Janet Wells, public policy director of NCCNHR, formerly the National Citizens’ Coalition for Nursing Home Reform. “Families should question why drugs are prescribed, do some research. A lot of drugs are being used as restraints.”

Paula Span is the author of the recently published “When the Time Comes: Families With Aging Parents Share Their Struggles and Solutions.”

 

Access to medical records

Many times, a family member of a nursing home resident will call us with concerns about bruises, unexplained injuries, falls, and pressure ulcers.  We suggest that they look at the medical records.  Numerous nursing homes will refuse to allow family members access to the medical records despite 42 CFR 483.10(j)(1)(vii) - which clearly states:

(1) The resident has the right and the facility must provide immediate access to any resident by the following:

(vii) Subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident.

Nursing homes are either ignorant of their responsibilities or intentionally concealing material and medical information to residents and their family members.  Why would a nursing home refuse to allow a family member of the resident access to the chart?  Many times, after a family requests the chart, nursing homes send the chart to outside legal and clinical consultants to "clean up" the information in the chart.  The above federal regulation needs to be enforced.  The best way is to complain to your local ombudsman, state health agency, and your local politician.

OBRA recognized as creating a private right of action

In a landmark opinion that recognizes a new cause of action for nursing home residents, the 3rd U.S. Circuit Court of Appeals has ruled that the Federal Nursing Home Reform Amendments give residents of county-run nursing homes the right to bring claims to challenge the quality of their treatment.   This is a huge victory for consumers of nursing homes.  Hopefully, other Courts will follow the sound reasoning and adopt the holding.

"The language used throughout the FNHRA is explicitly and unambiguously rights-creating," U.S. Circuit Judge Richard L. Nygaard wrote in his 23-page opinion in Grammar v. John J. Kane Regional Centers.   "These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients," Nygaard wrote.

"The FNHRA are replete with rights-creating language. The amendments confer upon residents of such facilities the right to choose their personal attending physicians, to be fully informed about and to participate in care and treatment, to be free from physical or mental abuse, to voice grievances and to enjoy privacy and confidentiality," Nygaard wrote.

Under the law, Nygaard said, nursing homes "are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities."

Nygaard also found that the statute "specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms."

Congress also chose key phrases that Nygaard found to be clear indications that private lawsuits should be allowed. "The repeated use of the phrases 'must provide,' 'must maintain' and 'must conduct' are not unduly vague or amorphous such that the judiciary cannot enforce the statutory provisions," Nygaard wrote.

As further evidence that Congress intended to create a private right of action, Nygaard noted that the FNHRA "use the word 'residents' throughout," and their provisions "are constructed in such a way as to stress that these 'residents' have explicitly identified rights, such as 'the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident's medical symptoms.'"

In the case of the FNHRA, Nygaard said: "[O]ur independent examination and assessment of the Medicaid Act disclosed no evidence of congressional intent to preclude enforcement of the rights created by the various provisions of this statute. This is so because no provision contains express terms to that effect and no comprehensive remedial scheme is established by the provisions at issue."

 

Liability of the Nursing home's Governing Body

OBRA is the federal regulations that establish the standard of care in nursing home facilities that receive Medicare or Medicaid. In those regulations, the below section clearly establishes that the governing body is ultimately responsible for how the nursing home is operated and managed.

42 CFR 483.75 provides:

(d) Governing body. (1) The facility must have a governing body, or
designated persons functioning as a governing body, that is legally
responsible for establishing and implementing policies regarding the
management and operation of the facility; and
(2) The governing body appoints the administrator who is--
(i) Licensed by the State where licensing is required; and
(ii) Responsible for management of the facility.

Canavan v. Nat'l Healthcare, 889 So.2d 825, 2004 Fla. App. holds that the governing body may be liable under this regulation.

Here is the relevant portion of the opinion:

The Estate argues that the concept of piercing the corporate veil does not apply in the case of a tort, and that it presented sufficient evidence of Friedbauer's negligence, by act or omission, for the jury to reasonably conclude that Friedbauer caused harm to Canavan.

It argues that Friedbauer had the responsibility of approving the budget for the nursing home. He also functioned as the sole member of the "governing body" of the nursing home, and pursuant to federal regulation, 42 C.F.R. § 483.75(d) (2002), the governing body is legally responsible for establishing and implementing policies regarding the management and operation of the facility and for appointing the administrator who is responsible for the management of the facility. Friedbauer was thus required by federal mandate to create, approve, and implement the facility's policies and procedures. Because he ignored complaints of inadequate staffing while cutting the operating expenses, and because the problems Canavan suffered, pressure sores, infections, poor hygiene, malnutrition and dehydration, were the direct result of understaffing, the Estate argues that a reasonable jury could have found that Friedbauer's elevation of profit over patient care was negligent.

We review the granting of a directed verdict by viewing the evidence and all inferences of fact in the light most favorable to the nonmoving party, and we can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party. Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001). We conclude that the trial court erred in granting the directed verdict because there was evidence by which the jury could have found that Freidbauer's negligence in ignoring the documented problems at the facility contributed to the harm suffered by Canavan. This was not a case in which the plaintiffs were required to pierce the corporate veil in order to establish individual liability because Friedbauer's alleged negligence constituted tortious conduct, which is not shielded from individual liability. See Fla. Specialty, Inc. v. H 2 Ology, Inc., 742 So. 2d 523, 527 (Fla. 1st DCA 1999) (stating that officers of a corporation may be held liable for their own torts even if such acts are performed as corporate officers); McElveen v. Peeler, 544 So. 2d 270 (Fla. 1st DCA 1989); Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981). We, therefore, reverse the order granting the directed verdict and remand for a new trial against Friedbauer.

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