minnesota nursing home attorney

Archive for June, 2008

OVER MEDICATING AND OTHER RESTRAINTS IN NURSING HOMES

Wednesday, June 25th, 2008

One of the more disturbing trends I have noted in my practice as an elder law abuse and neglect attorney is the use of over medicating people to assist the nursing home in “warehousing” our loved ones.  Some facilities use medication to assist with sedating residents so they are not as mobile and active.  Others use physical restraints such as straps, bed rails and other methods to control the movement of the elderly persons.  In my opinion the reason is obvious to reduce the amount the staff and supervision needed for high acuity and high risk residents.   The thinking is: if you restrain the resident they won’t be able to get into trouble, wander off grounds, etc…   The reality is that not only are restraints without a prescription illegal, they lead to other problems such as muscle atrophy, bed sores/ pressure ulcers and even pneumonia.

 

THE ATTACHED ARTICLE FROM THE NY TIMES ON THIS ISSUE:

  June 24, 2008 

Doctors Say Medication Is Overused in Dementia

By LAURIE TARKANCorrection AppendedRamona Lamascola thought she was losing her 88-year-old mother to dementia. Instead, she was losing her to overmedication.Last fall her mother, Theresa Lamascola, of the Bronx, suffering from anxiety and confusion, was put on the antipsychotic drug Risperdal. When she had trouble walking, her daughter took her to another doctor — the younger Ms. Lamascola’s own physician — who found that she had unrecognized hypothyroidism, a disorder that can contribute to dementia.Theresa Lamascola was moved to a nursing home to get these problems under control. But things only got worse. “My mother was screaming and out of it, drooling on herself and twitching,” said Ms. Lamascola, a pediatric nurse. The psychiatrist in the nursing home stopped the Risperdal, which can cause twitching and vocal tics, and prescribed a sedative and two other antipsychotics.“I knew the drugs were doing this to her,” her daughter said. “I told him to stop the medications and stay away from Mom.”Not until yet another doctor took Mrs. Lamascola off the drugs did she begin to improve.The use of antipsychotic drugs to tamp down the agitation, combative behavior and outbursts of dementia patients has soared, especially in the elderly. Sales of newer antipsychotics like Risperdal, Seroquel and Zyprexa totaled $13.1 billion in 2007, up from $4 billion in 2000, according to IMS Health, a health care information company. Part of this increase can be traced to prescriptions in nursing homes. Researchers estimate that about a third of all nursing home patients have been given antipsychotic drugs. The increases continue despite a drumbeat of bad publicity. A 2006 study of Alzheimer’s patients found that for most patients, antipsychotics provided no significant improvement over placebos in treating aggression and delusions.In 2005, the Food and Drug Administration ordered that the newer drugs carry a “black box” label warning of an increased risk of death. Last week, the F.D.A. required a similar warning on the labels of older antipsychotics.The agency has not approved marketing of these drugs for older people with dementia, but they are commonly prescribed to these patients “off label.” Several states are suing the top sellers of antipsychotics on charges of false and misleading marketing.Ambre Morley, a spokeswoman for Janssen, the division of Johnson & Johnson that manufactures Risperdal, would not comment on the suits, but said: “As with any medication, the prescribing of a medication is up to a physician. We only promote our products for F.D.A.-approved indications.”Nevertheless, many doctors say misuse of the drugs is widespread. “These antipsychotics can be overused and abused,” said Dr. Johnny Matson, a professor of psychology at Louisiana State University. “And there’s a lot of abuse going on in a lot of these places.”Dr. William D. Smucker, a member of the American Medical Directors Association, a group of health professionals who work in nursing homes, agreed. Though the group encourages doctors to conduct a thorough assessment and prescribe antipsychotics only as a last resort, he said, “Many physicians are absent without leave in the nursing home and don’t take an active role in the assessment of the patient.”Some nursing homes are trying a different approach, so-called environmental intervention. The strategies include reducing boredom, providing intellectual and physical stimulation, exercise, calming music, bringing in pets for therapy and improving how the staff approaches and talks to dementia patients.At the Margaret Teitz Nursing and Rehabilitation Center in Queens, social workers do life reviews of patients to understand their interests, lifestyle and former occupations.“I had a patient who used to be in fashion,” said Nancy Goldwasser, the director of social services. “So we got her fabric samples. And she’d sit and look through the books, touch the fabric, and it would calm her.” But such approaches are time consuming, they do not help all patients, they can be prohibitively expensive and they will be more difficult to provide as Alzheimer’s continues to increase. “Our health care system isn’t set up to address the mental, emotional and behavioral problems of the elderly,” said Dr. Gary S. Moak, president of the American Association for Geriatric Psychiatry.Nursing homes are short staffed, and insurers do not generally pay for the attentive medical care and hands-on psychosocial therapy that advocates recommend. It is much easier to use sedatives and antipsychotics, despite their side effects.The first generation of antipsychotics, like Haldol, carry a significant risk of repetitive movement disorders and sedation. Second-generation antipsychotics, also called atypicals, are more commonly prescribed because the risk of movement disorders is lower. But they, too, can cause sedation, and they contribute to weight gain and diabetes.Used correctly, the drugs do have a role in treating some seriously demented patients, who may be incapacitated by paranoia or are self-destructive or violent. Taking the edge off the behavior can keep them safe and living at home, rather than in a nursing home.If patients are prescribed an antipsychotic, it should be a very low dose for the shortest period necessary, said Dr. Dillip V. Jeste, a professor of psychiatry and neuroscience at the University of California, San Diego.It may take a few weeks or months to control behavior. In many cases, the patient can then be weaned off of the drugs or kept at a very low dose.Some experts say another group of medications — antidementia drugs like Aricept, Exelon and Namenda — are underused. Research shows that 10 to 20 percent of Alzheimer’s patients had noticeable positive responses to the drugs, and 40 percent more showed some cognitive improvement, even if it was not noticeable to an observer.“Sometimes, it’s enough to take the edge off the behavioral problems, so the family and patient can live with it and you don’t expose people to much risk,” said Dr. Gary J. Kennedy, director of geriatric psychiatry at the Montefiore Medical Center in the Bronx.Other experts cite a lack of research backing these drugs for behavioral problems.If patients begin showing behavioral symptoms of dementia, doctors said, they should have complete medical and psychiatric workups first, especially if symptoms develop suddenly.“Just because someone is 95 does not mean one should not do a workup, especially if she’s been healthy,” Dr. Kennedy said. Common causes of the symptoms include ministrokes, reparable brain hemorrhage from a mild bump on the head, hypothyroidism, dehydration, malnourishment, depression and sleep disorders.Some doctors point out that simply paying attention to a nursing home patient can ease dementia symptoms. They note that in randomized trials of antipsychotic drugs for dementia, 30 to 60 percent of patients in the placebo groups improved.“That’s mind boggling,” Dr. Jeste said. “These severely demented patients are not responding to the power of suggestion. They’re responding to the attention they get when they participate in a clinical trial. “They receive both T.L.C. and good general medical and humane care, which they did not receive until now. That’s a sad commentary on the way we treat dementia patients.”To family members looking at a nursing home for an aging parent, experts recommend seeking out homes with low staff turnover, a high ratio of staff members to patients, and programs with psychosocial components.The Medicare Web site has basic information on individual homes at www.medicare.gov/NHcompare. The National Citizens’ Coalition for Nursing Home Reform, at www.nccnhr.org, offers a consumer guide to choosing a nursing home.If medications are necessary, a family member should communicate with the prescribing doctor, learn the goal of each medication and be involved in making the decision. Dr. Moak, of the psychiatry association, emphasized seeking out the doctor. Family members, he said, “often speak through the nursing staff, and that’s a huge mistake.” Family members who are not convinced that a relative is receiving the best care should get a second opinion, as Ramona Lamascola did.The physician she consulted, Dr. Kennedy of Montefiore, stopped her mother’s antipsychotics and sedatives and prescribed Aricept.“It’s not clear whether it was getting her hypothyroid and other medical issues finally under control or getting rid of the offending medications,” he said. “But she had a miraculous turnaround.”Theresa Lamascola still has dementia, but she went from confinement in a wheelchair — unable to sit still and screaming out in fear — to being able to walk with help, sit peacefully, have some memory and ability to communicate, understand subtleties of conversations and even make jokes.Or, as her daughter put it, “I got my mother back.”This article has been revised to reflect the following correction:Correction: June 25, 2008
An article on Tuesday about the use of antipsychotic drugs in dementia patients misspelled the names of two drugs in a different class, sometimes used to treat the symptoms of Alzheimer’s and Parkinson’s diseases. They are Exelon and Namenda, not Exalon and Menamda.
 

Lastest Minnesota Department of Health Survey Reports

Tuesday, June 24th, 2008

 MDH Nursing Home Survey Reports Update Nursing Home Survey Reports for Minnesota Department of Health. This information has recently been updated, and is now available at: http://www.health.state.mn.us/divs/fpc/nhoutput/nhsurveypost.html

House Bill Passes

Tuesday, June 24th, 2008

See the attached article from the Minnesota Senior Federation: 

HOUSE PASSES MEDICARE BILL DESPITE VETO THREAT

Because of your calls and emails the House of Representatives today passed legislation which will prevent a 10.6  percent Medicare payment cut to doctors scheduled to take place July 1, improve Medicare coverage of preventive and mental health services and eliminate enrollment barriers for low income programs. HR.6331 passed 355 to 59, more than the two-thirds needed to override a veto.

A similar bill was presented to the Senate earlier this month but failed to overcome procedural hurdles. The successful House vote will likely force a new  Senate vote before the July 4 recess.

HR.6331 ends Medicare’s discriminatory treatment of the mentally ill. The bill also aligns the asset test for Medicare Savings Programs (MSP), which pay premiums and medical costs for low income people with Medicare, with the criteria for the full Medicare Part D Low-Income Subsidy (Extra Help) levels. Together with provisions that require data sharing between states, which administer MSP, and the Social Security Administration, which runs Extra Help, the legislation, if passed, would raise historically low enrollment levels in MSP.

These benefit improvements, along with new restrictions proposed on Medicare private health plans, has prompted a veto threat from the Bush administration. The only member of the Minnesota delegation not voting in favor of HR. 6331, was Representative Michele Bachmann.

  

FINAL VOTE RESULTS FOR ROLL CALL 443

(Democrats in roman; Republicans in italic; Independents underlined)

      H R 6331      2/3 YEA-AND-NAY      24-Jun-2008       

      QUESTION:  On Motion to Suspend the Rules and Pass, as Amended
      BILL TITLE: Medicare Improvements for Patients and Providers Act

 

Yeas

Nays

PRES

NV

Democratic

226

 

 

9

Republican

129

59

 

11

Independent

 

 

 

 

TOTALS

355

59

 

20

Lee Graczyk
Director of Public Policy
Minnesota Senior Federation
1885 University Avenue - Suite 190
St. Paul, MN 55104
651-783-5028

Ideas for Elder Care in the Future

Tuesday, June 24th, 2008

The Wall Street Journal has an excellent article on the future for nursing homes in America.    There are proposals for alternatives that are more home like and focus on resident care and comfort.  See the attached article:   Rising Challenger Takes On Elder-Care SystemBy LUCETTE LAGNADOThe Wall Street Journal
June 24, 2008; Page A1
PRINCETON, N.J. — In the spring of 2001, Bill Thomas, dressed in his usual sweat shirt and Birkenstock sandals, entered the buttoned-down halls of the Robert Wood Johnson Foundation. His message: Nursing homes need to be taken out of business. “It’s time to turn out the lights,” he declared.Cautious but intrigued, foundation executives handed Dr. Thomas a modest $300,000 grant several months later. Now the country’s fourth-largest philanthropy is throwing its considerable weight behind the 48-year-old physician’s vision of “Green Houses,” an eight-year-old movement to replace large nursing homes with small, homelike facilities for 10 to 12 residents. The foundation is hoping that through its support, Green Houses will soon be erected in all 50 states, up from the 41 Green Houses now in 10 states.“We want to transform a broken system of care,” says Jane Isaacs Lowe, who oversees the foundation’s “Vulnerable Populations portfolio.” “I don’t want to be in a wheelchair in a hallway when I am 85.”The foundation’s undertaking represents the most ambitious effort to date to turn a nice idea into a serious challenger to the nation’s system of 16,000 nursing homes. To its proponents, Green Houses are nothing less than a revolution that could overthrow what they see as the rigid, impersonal, at times degrading life the elderly can experience at large institutions.Susan Feeney, a spokesperson for the American Health Care Association, which represents thousands of for-profit and not-for-profit nursing homes, says the criticisms levied against the industry by Dr. Thomas and his supporters are “overly harsh.” She says many nursing homes are embracing cultural changes to create a more homelike feel. “While it may not be scrapping a large building…we are changing,” she says.Green Houses face a host of hurdles. Many Green House builders say they’ve encountered a thicket of elder-care regulations. It takes enormous capital to build new homes from scratch. Plus, experts say the concept faces stiff resistance from many parts of the existing nursing-home system. Traditional nursing homes, many of which care for 100 to 200 patients, are predicated on economies of scale — the larger the home, the cheaper it is to care for each individual resident.Foundation officials acknowledge they don’t know whether Green Houses are a viable economic model. But they’ve decided not to wait for an answer. Hewing to its recent strategy of making “big bets” on ideas to change social norms, Robert Wood Johnson is investing $15 million over five years — one of the bigger grants the institution has handed out to a single entity.The foundation, which has $10 billion in assets, is trying to encourage the building of Green Houses and is directing the cash to NCB Capital Impact, a Washington, D.C.-based not-for-profit that has been offering consulting, education, architectural and other help to any party interested in operating a Green House. The foundation is also studying the viability of Green Houses and says more support could follow.“Robert Wood Johnson is making an important investment to try to make sure there is a sufficient cadre of early adopters of the Green House model — and research to make sure the model is actually working,” says Thomas Hamilton, who oversees nursing-home quality and regulatory issues for the Centers for Medicare & Medicaid Services. He says his agency is trying to coax nursing homes into changing their cultures and adopting more humane, “patient-centered” models such as the Green House.The $122 billion nursing-home industry arose from the 1965 birth of Medicare and Medicaid, the government health-insurance programs for the elderly and poor that provide billions in government reimbursements. Made up of both not-for-profit and for-profit companies, the industry still generates most of its revenue from Medicaid and Medicare.Now, many nursing homes are aging, and the industry has suffered through so many scandals involving patient care that many elderly shun the thought of entering such institutions. A 2003 survey by the AARP, an advocacy group for older Americans, found that just 1% of Americans over 50 with a disability wanted to move to a nursing home.In recent years there have been attempts to create more popular alternatives, with mixed results. Assisted living, an ambitious effort begun in the 1980s to allow seniors to live independently in apartments and other group settings, has proved very popular but it “serves the needs of people who are relatively wealthy and relatively healthy,” Dr. Thomas says. (Ms. Feeney of the American Health Care Association says the number of poor Medicaid elderly in assisted living is small but will grow.)Avoided IssueWhile Robert Wood Johnson has historically taken a substantial interest in issues affecting the elderly, for years it avoided funding nursing homes or even nursing-home reform. “Bluntly, trying to make change in a system that was uninterested in change didn’t seem like a good investment,” says Ms. Lowe.Ms. Lowe and her foundation colleagues began to shift that stance after their meeting with Dr. Thomas. A native of upstate New York, Dr. Thomas headed to Massachusetts to get his degree at Harvard Medical School, then returned to work as a doctor in a local nursing home. He says he was troubled by the experience. “I was distressed by the amount of emotional suffering that people were encountering even when they had good medical care,” he says.Dr. Thomas spent years plumbing the issue, even penning a one-man play about a mythical land where elders were the heart of society. Further inspired by his two young daughters, both severely disabled and cared for at home, Dr. Thomas decided that changing nursing homes from within wouldn’t be enough, and sat down “with a clean piece of paper” to re-imagine elder care.Tall, sporting a beard and a mane of long, curly brown hair, Dr. Thomas showed up at Robert Wood Johnson’s bucolic campus in 2001 attired in his usual casual garb — he says he wasn’t about to change his ways and decided he was “going there to rattle the cages.” “This is a formal place,” Ms. Lowe says. “In this organization, when someone comes in Birkenstocks and jeans and a hoodie you think, ‘This must be the electrician.’”But it was Dr. Thomas’s electric delivery — officials liken him to an evangelist — that got the group’s attention. “Our energy needs to be around how to replace nursing homes. Not replace the building but replace the idea that older people can be taken away and put into an institution,” Dr. Thomas recalls saying. He described his vision of homelike places where elderly residents could gather, dine together and sit before a blazing fire.Though she was taken aback by Dr. Thomas’s attire, Ms. Lowe says she grew fascinated by his idea of a place where seniors could flourish and grow, yet still receive the same high level of skilled nursing care that nursing homes offer.In 2003, Ms. Lowe traveled to Tupelo, Miss., where the first Green House had just opened, and says she marveled at how different it was from a well-regarded nursing home she’d previously visited. “Instead of thinking, ‘I don’t want to be here,’ it was, ‘How can I move in?’” she recalls.Still, Ms. Lowe says the foundation deliberated mightily before making its move. Some still felt the system was too resistant for any change to happen.Source of ResistanceOne big source of resistance is the dizzying array of federal and state regulations that are mostly geared to protecting residents in large institutions. There are “life safety” rules intended to keep residents safe and prevent them from dying in fires and other disasters; “physical plant” standards that deal with building codes; health-care rules that guarantee a modicum of privacy — requiring, for example, a curtain between beds. Infection-control regulations are meant to stop transmission of disease, while quality-of-life codes try to ensure residents receive adequate recreation and activities.As a result, the groups with the know-how and resources to build Green Houses are often nursing-home operators themselves. Some nursing-home executives argue such rules can make it difficult, if not impossible, to create the homelike environment that is a Green House’s hallmark. Generally licensed as nursing homes, Green Houses are designed to provide a full range of care to the very sick.Regulatory HurdleLate last year, Lynn Thompson, chief executive of the Mennonite Memorial Home in Bluffton, Ohio, says he wanted to build a couple of Green Houses in a cornfield near a residential neighborhood so seniors could live near families with young children. But because the Green Houses would be a mile away and on a different lot, Mr. Thompson says state regulators dictated they must be licensed as an independent nursing home, which meant they would have to have at least 50 beds — or build several more Green Houses. Mr. Thompson says it has put his plan at risk. “It has made it more expensive and more difficult,” he says.Rebecca Maust, chief of the Division of Quality Assurance at the Ohio Health Department, says in a statement that the agency “fully supports” person-centered care but that Green Houses have to be on the same lot as the main nursing home to “ensure proper care of residents.”Gerald Betters, who built two Green Houses near his traditional nursing home in Powers, Mich., created a regulatory backlash when he decided residents would help bake cookies. Mr. Betters says he found out residents would have to wear gloves when they help, a rule he feels undermines the effort to make the facility feel like a home.When contacted by The Wall Street Journal, Catherine Hunter, a licensing officer for the Division of Nursing Home Monitoring in Michigan’s Department of Community Health, said that her office had embarked on a “management review” and had found a loophole. The elders need only wash their hands, provided their hands are cut-free, Ms. Hunter said.Mr. Hamilton of the Centers for Medicare & Medicaid Services says his agency doesn’t think existing rules “represent any serious barriers” to the Green House model. He added that he wants to “maintain open lines of communication” to any parties who believe that a regulation is a barrier.These operators may be the exception. According to Susan Reinhard, who heads the AARP’s Public Policy Institute, some nursing-home owners aren’t eager to switch horses. “You have owners who have their personal wealth invested in a model that was requested by society way back,” she says.“There are providers who don’t want to change because of the capital investment they’ve made,” adds Larry Minnix, CEO of the American Association of Homes and Services for the Aging, which represents not-for-profits. But he says they need to. “Forty years ago, the paradigm was the ‘minihospital’ and that is what became the modern American nursing home,” Mr. Minnix says. “That is not what is needed now.” Ms. Feeney of the American Health Care Association says the group is supportive of Green Houses.Perhaps the most significant hurdle to Green Houses is the perception that they are too expensive. “The biggest criticism I hear is, ‘How do you make it work financially?’” says Mr. Minnix, whose association represents not-for-profit nursing homes as well as assisted-living and retirement communities.Jeffrey Shireman, president of the not-for-profit Lebanon Valley Brethren Home in Palmyra, Pa., says he worked with Pennsylvania’s Health Department to build Green Houses at a cost of $1.7 million a piece with open kitchens, comfortable couches and electric fireplaces (real fireplaces are a regulatory obstacle). “If I could afford to, I would abandon the other institutional units and build more Green Houses,” says Mr. Shireman, who says his institution floated a bond issue and launched a capital campaign to fund construction of the Green Houses.Michael Martin, vice president of Riverside Health System, which owns several traditional nursing homes as well as assisted living and other forms of elder care, says he was hoping to build some Green Houses and move 120 patients out of the traditional nursing-home beds his not-for-profit operates in Newport News, Va. He says the company even purchased land in nearby Williamsburg. But after intensive study, Mr. Martin says he concluded that Green Houses simply couldn’t work financially.Green Houses “will absolutely provide a quality of life unsurpassed,” Mr. Martin says, but “they don’t work financially without subsidy.”Others disagree. Robert Jenkens, who is spearheading the Green House project at NCB Capital for Robert Wood Johnson, says that some not-for-profits and at least one for-profit believe the model to be financially viable. St. John’s Lutheran Ministries in Billings, Mont., operates both a nursing home and some Green Houses. In an internal review, officials found that it cost $192 a day to care for a resident in the traditional nursing home versus $150 a day in their Green Houses.While building costs were high, Vice President David Trost says the Green House model also has cost savings. “We no longer have to take a resident 200 feet to the dining room — we only have to take them 20 feet, and that is significant,” he says.Robert Wood Johnson executives say financial sustainability is a question they’re scrutinizing intently. Based on this “first round” of Green Houses, they believe that it is financially doable, but they are rigorously testing the model and developing software that should help providers determine whether they can handle Green Houses financially.Dr. Thomas says comparing Green Houses with nursing homes is an “apples-to-oranges comparison.” “Green House belongs to the tradition of finding the better product, of building the better mousetrap,” he says.