Nursing Home Chemical Restraint Attorney

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Nursing Home Chemical Restraint Attorney

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an elderly man holding multiple pills on his palm must be defended by a nursing home chemical restraint attorneyA Los Angeles nursing home chemical restraint attorney at Cherepinskiy Law Firm will fight tirelessly to vindicate the rights of those patients whose mental judgment abilities, freedom of movement, dignity, and autonomy had been stolen through the use of unwarranted chemical restraints in the hands of nursing homes and assisted living facilities.

Excessive restraint and control of behavior through the use of medications is known as a “chemical restraint”. In some cases, in order to prevent patients from injuring themselves or others, or to maintain the mental and emotional stability of an elderly patient, well-managed and carefully selected psychotherapeutic medications may be necessary and helpful.

However, when psychotherapeutic drugs are used without a medical reason, excessively, without the consent of the patient or his / her responsible party, or just as a restraint for the convenience of an assigned nurse or caregiver, this practice constitutes elder abuse through the use of chemical restraints. It is significantly easier to simply medicate an agitated elderly patient with psychoactive drugs than to provide the appropriate attention, redirection, and physical assistance, which is why understaffing of skilled nursing facilities is the leading cause of misuse of chemical restraints.

Pursuant to the California Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”), “physical abuse” includes the use of a chemical restraint “[f]or any purpose not authorized by the physician and surgeon.” California Welfare & Institutions Code § 15610.63.

Unfortunately, skilled nursing facilities and assisted living facilities in California resort to the use of chemical restraints at an alarming rate. California is facing an epidemic of chemical restraints misuse in long-term care facilities.

The most common reasons for the inappropriate use of chemical restraints are:

  • For the staff’s convenience as opposed to patient or resident safety (e.g. to restrain patients or residents who have dementia or to avoid the need to periodically check on them and provide individualized attention); and
  • To compensate for the lack of sufficient staffing (understaffing).

 

Chemical Restraint – Defined

 

California Code of Regulations (“CCR”), Title 22, § 72018 defines “chemical restraint” as a drug used to control behavior and used in a manner not required to treat the patient’s medical symptoms. The concept of “chemical restraint” encompasses the use of psychotherapeutic medications for various reasons, including the staff’s convenience, discipline, retaliation, or punishment.

 

Psychotherapeutic Medications

 

There are several kinds of psychotherapeutic medication, which are also referred to as “psychotropic” or “psychoactive” medications.  The following are some of the most common medications (in every category, the medications are listed by brand name in alphabetical order, with the generic names in parentheses):

 

Antipsychotic Medications

 

  • Haldol (Haloperidol)
  • Mellaril (Thioridazine)
  • Navane (Thiothixene)
  • Risperdal (Risperidone)
  • Thorazine (Chlorpromazine)
  • Zyprexa (Olanzapine)

 

Antidepressant Drugs

 

  • Aventyl / Pamelor (Nortriptyline)
  • Desyrel (Trazodone)
  • Effexor (Venlafaxine)
  • Norpramin (Desipramine)
  • Prozac (Fluoxetine)
  • Sinequan / Adapin (Doxepin)
  • Tofranil (Imipramine)
  • Zoloft (Sertraline)

 

Anti-anxiety Medications (Anxiolytics)

 

  • Ativan (Lorazepam)
  • Benadryl (Diphenhydramine)
  • BuSpar (Buspirone)
  • Serax (Oxazepam)
  • Valium (Diazepam)
  • Xanax (Alprazolam)
  • Vistaril / Atarax (Hydroxyzine)

 

Sedative and Hypnotic Medications

 

  • Ativan (Lorazepam)
  • Benadryl (Diphenhydramine)
  • Dalmane (Flurazepam)
  • Restoril (Temazepam)
  • Serax (Oxazepam)
  • Somnote (Chloral Hydrate)
  • Vistaril / Atarax (Hydroxyzine)

 

Mood Stabilizing Drugs

 

  • Depakene (Valporic acid)
  • Eskalith / Eskalith-Cr (Lithium Carbonate)
  • Lithane / Lithium / Lithobid / Lithonate / Lithotabs (Lithium Carbonate)

 

Negative Effects of Chemical Restraints

 

multiple pill bottles and pills on a table represent the issue of chemical restraints of elderly in nursing homesAppropriately utilized psychotherapeutic medications can promote a patient’s well-being. However, when psychoactive drugs are used to improperly control behavior in long-term care settings, the effects can be extremely harmful. Powerful psychotherapeutic medications have adverse side effects, which can potentially incapacitate even young and physically strong patients. The liver function decreases with age, and elderly patients have a significantly reduced drug metabolism (the body’s ability to biologically transform medications and facilitate their elimination from the body). As a result, if elderly patients are drugged and chemically restrained with psychotropic medications for behavior control, the effects can be catastrophic.  As an overview by the nursing home chemical restraint attorney at Cherepinskiy Law Firm, these are some of the adverse effects of chemical restraints:

 

Sedation

 

One of the most common side effects of psychotherapeutic medications is sedation – the state of calm, drowsiness, and sleepiness. Elderly patients have a weakened drug metabolism, and the sedative effect of psychotropic drugs frequently results in unresponsiveness, impaired consciousness, and excessive sleepiness. This effect is typically the “desired” effect when psychoactive drugs are being used as a chemical restraint for behavior control and the staff’s convenience.

 

Agitation

 

Hypnotic and sedative medications may cause some patients to experience agitation, aggression, hallucinations, nightmares, and insomnia.

 

Balance Impairment and Increased Risk of Falls

 

Psychotropic medications (e.g. anti-anxiety drugs and sedatives) can impair a person’s balance and postural control / gait. The balance impairment, in turn, increases the risk of falls and the resulting injuries, including death.

 

Memory Impairment

 

Psychotherapeutic medications may cause memory loss and impairment, including disorientation and confusion.

 

Blood Pressure Disturbances

 

Antidepressant medications have been linked both (1) hypertension (high blood pressure) and (2) orthostatic hypotension (a decrease in blood pressure when changing the position to standing from sitting or lying down). Orthostatic hypotension, which is also referred to as “postural hypotension”, is especially dangerous for the elderly, because it leads to drowsiness and the increased risk of falling.

 

Muscle and Neurological Impairments

 

Many psychotherapeutic drugs, especially antidepressants and antipsychotic medications, result in muscle and neurological impairments and disorders which include, but are not limited to, the following:

  • tardive dyskinesia – involuntary, jerking and repetitive body and face movements, which include grimacing, sticking out the tongue, eye blinking, and lip smacking
  • dystonia – intermittent or persistent muscle contractions and spasms, which are involuntary and uncontrollable. These abnormal muscle contractions cause repetitive movements and postures, which include twisting, foot cramping, uncontrollable blinking, speech disturbances, and neck pulling
  • tics – sudden and repetitive motor movement or vocalization. The most common examples of tics are eye blinking, shoulder shrugging and throat clearing
  • dyskinesia – repetitive, uncontrollable, and involuntary muscle movements, which are frequently manifested by body swaying, head bobbing, fidgeting, restlessness, and wriggling
  • parkinsonism – drug-induced symptoms of Parkinson’s disease, such as slow movements, tremors, rigid and trembling limbs, loss of fine motor control, and shuffling gait
  • akinesia – the partial or complete loss of the ability to voluntarily move muscles (e.g. inability to swing arms)
  • akathisia – the compulsive feeling of inner restlessness and inability to stay still

 

Decline in Functional Abilities

 

Elderly patients and residents who are medicated with psychotherapeutic drugs frequently experience a decline in their functional ability to perform the activities of daily living. For example, they may lose their ability to independently walk, eat, dress, use the restroom, and bathe. The consequences of this functional decline can be devastating, and they include pressure ulcers, malnutrition & dehydration, contractures (shortening and hardening of muscles or tendons, which causes joint deformity and rigidity), aspiration pneumonia (potentially life-threatening inhalation of food, stomach acid, or saliva into the lungs), and even death.

Overall, when elderly patients are “drugged” with psychotherapeutic medications for behavior control and staff convenience – i.e. chemically restrained – these otherwise relatively healthy and independent elders can quickly turn into drooling, neurologically impaired, and sleepy patients who spend most of their time slouched in a wheelchair.   Cherepinskiy Law Firm, as the nursing home chemical restraint attorney, is ready to vindicate the rights of those victims who were overmedicated.

 

Limitations on Chemical Restraints in Nursing Homes (California Laws & Regulations)

 

Pursuant to California Health & Safety Code § 1180.4(k), nursing home patients have the following rights:

  • the right to be free from the use of any type of behavioral restraints and seclusion imposed for the purpose of:
    • discipline;
    • coercion;
    • staff convenience; or
    • retaliation by the nursing home staff.
  • the right to be free from the use of a medication administered for any of these purposes (unless the medication is used as a standard method of treatment for the patient’s psychiatric or medical condition):
    • for behavior control or
    • to restrict the patient’s freedom of movement.

California Code of Regulations, Title 22, § 72319 limits the use of chemical restraints at skilled nursing facilities as follows:

  • A detailed order by a healthcare provider (e.g. a physician) is required before any restraints can be utilized [CCR §72319(b)];
  • Restraints may not be used as punishment, for the staff’s convenience, or as a substitute for more effective medical and nursing care [CCR §72319(d)]; and
  • When drugs are ordered to “restrain or control behavior” or to “treat a disordered thought process”, the following requirements must be followed: (1) the patient’s medical records must specify the particular behavior or abnormal thought process to be treated with the medication; (2) the patient’s plan of care must indicate the “data to be collected for use in evaluating the effectiveness of the drugs and the occurrence of adverse reactions”; and (3) the collected data “shall be made available to the prescriber in a consolidated manner at least monthly.” [CCR §72319(j)(1)-(3)].

California Code of Regulations, Title 22, § 72527, the Patients’ Bill of Rights, states that nursing home patients shall have the right:

  • to be free from mental abuse [CCR § 72527(a)(10)]; and
  • to be free from psychotherapeutic drugs “used for the purpose of patient discipline or staff convenience and to be free from psychotherapeutic drugs used as a chemical restraint as defined in Section 72018” [CCR § 72527(a)(24)]
    • CCR section 72527(a)(24) allows the use of chemical restraints under the following exceptional circumstances: “in an emergency which threatens to bring immediate injury to the patient or others. If a chemical restraint is administered during an emergency, such medication shall be only that which is required to treat the emergency condition and shall be provided in ways that are least restrictive of the personal liberty of the patient and used only for a specified and limited period of time.”

 

Informed Consent Requirement for Psychotherapeutic Drugs at Nursing Homes

 

Pursuant to California Health & Safety Code § 1418.9(a), before an attending physician at a nursing home issues an order, prescription, or a dose increase for an antipsychotic medication, this physician must fulfill both of these requirements:

1.  Obtain the patient’s informed consent for such order, prescription, or the increase in the dose of the antipsychotic medication; and

2.  Request that the nursing home patient provide his or her consent to have the patient’s “interested family member” (based on the designation in the medical records) notified of this order, prescription, or the increase in the dose. If such consent to notification is provided, the attending physician must make reasonable attempts to notify the appropriate designated family member within 48 hours of the order, prescription, or the increase in the dose.

Notification of an interested family member is not required if any of the following circumstances exist: (1) there is no designated interested family member; (2) the nursing home patient has been diagnosed as terminally ill and is receiving hospice services; and (3) the patient has not consented to the notification. California Health & Safety Code § 1418.9(b).

In addition, pursuant to California Code of Regulations, Title 22, § 72528(a), if a physician orders the use of psychotherapeutic drugs at a skilled nursing facility, the physician must obtain informed consent from the patient or the patient’s family. California Code of Regulations, Title 22, §§ 72528(c) and 72527(e)(1) [the Patients’ Bill of Rights] require that a nursing home verify that the physician actually did obtain informed consent for the use of psychotherapeutic drugs.

 

Federal Prohibition on Use of Chemical Restraints in Nursing Homes

 

The Omnibus Budget Reconciliation Act of 1987 (“OBRA ’87) contains the Nursing Home Bill of Rights, which applies to skilled nursing facilities (nursing homes) which are certified to be paid by Medicare for medical services. Specifically, skilled nursing facility patients whose care and treatment is being paid for by Medicare have the right to be free from the following:

  • corporal punishment;
  • physical or mental abuse;
  • involuntary seclusion; as well as
  • any chemical or physical restraints, which are not required for the patient’s medical treatment and are imposed for the sole purpose of staff convenience or patient discipline.

The Nursing Home Bill of Rights, 42 U.S.C. § 1395i-3(c)(1)(A)(ii). Pursuant to this law, imposition of restraints is allowed only under these conditions:

(1)  to protect the physical safety of the nursing home patient who is being restrained as well as the safety or other patients, and

(2)  only when the physician issues a detailed written order, which specifies both the circumstances under which the restraints have to be used and the period of time for such use of restraints (some emergency circumstances may be exempt from this requirement).

Similarly, Title 42 of the Code of Federal Regulations has a similar provision, which applies to “Long Term Care Facilities” (which includes skilled nursing facilities). Specifically, 42 C.F.R. § 483.13(a) states that nursing home patients have the right to be free from any physical restraints or chemical restraints, which are:

  • imposed as a means of staff convenience or patient discipline; and
  • not required for the treatment of the patient’s medical symptoms.

These regulations are very complex, and you need the assistance of the nursing home chemical restraint attorney who is well-versed in the applicable laws and regulations.

 

Chemical Restraints and Assisted Living Facilities

 

Unfortunately, California’s residential care facilities for the elderly (commonly referred to as “RCFE” and “assisted living facilities”) are not as regulated as skilled nursing facilities. One of the reasons for this lack of regulatory guidance is the fact that – if a resident has such a severe mental disorder that it may constitute a threat of immediate injury to the resident or others, then he or she needs a higher level of care and should not be at an assisted living facility to begin with. Assisted living facilities, however, compete with skilled nursing facilities, and frequently accept patients who need a higher level of care (e.g. patients with severe dementia).

Assisted living facilities are subject to California Welfare & Institutions Code § 15610.63, which states that the use of any chemical restraint “[f]or any purpose not authorized by the physician and surgeon” constitutes physical abuse.

California Code of Regulations (CCR), Title 22, § 87468 establishes the Personal Rights of residents at residential care facilities for the elderly (RCFE’s), also known as assisted living facilities. Pursuant to CCR § 87468 (a)(3), the residents’ personal rights include the right to be free from:

  • mental abuse;
  • intimidation;
  • corporal or unusual punishment;
  • humiliation; or
  • other actions, which are punitive in nature.

 

Avoiding Chemical Restraints

 

Instead of incapacitating elderly residents and patients and subjecting them to significant health and safety risks through the use of psychotherapeutic drugs for behavior control, nursing homes and assisted living facilities must:

  • Use adequate levels of staffing;
  • Provide appropriate monitoring and supervision or patients / residents;
  • Provide appropriate therapy, redirection, and attention to elderly individuals with mental health issues (e.g. dementia / Alzheimer’s disease); and
  • Most importantly, place patient safety and well-being above staff convenience.

These measures may make long-term care facilities more expensive to operate. If facilities choose profits over the health, dignity, safety and lives of the patients and residents they are entrusted to care for, they commit elder abuse.

 

Take Action! Promptly Contact a Los Angeles Nursing Home Chemical Restraint Lawyer for a Free Consultation

 

As an aggressive Los Angeles nursing home chemical restraint lawyer, Dmitriy Cherepinskiy, and his firm, tirelessly pursue justice. If you or your loved one fell victim of chemical restraints, this firm will fight to vindicate your rights. If chemical restraints in the hands of an assisted living facility or a nursing home caused the death of a loved one, your compassionate chemical restraint lawyer will battle relentlessly in a wrongful death case.

If you suspect elder abuse in the form of chemical restraints, please call or fill out an electronic contact form today to request a free consultation. Cherepinskiy Law Firm, as the nursing home chemical restraint attorney, will work zealously to bring the wrongdoers to justice, and to obtain the maximum case value and compensation you deserve.

This firm fights for clients throughout California, including Los Angeles, Orange County, as well as Ventura, Riverside and San Bernardino Counties.

 

Sources

1. https://www.medicare.gov/what-medicare-covers/what-part-a-covers/skilled-nursing-facility-rights
2. https://www.aarp.org/health/conditions-treatments/info-2017/nursing-homes-antipsychotic-drugs-fd.html

 

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