by Tony Chicotel, CANHR Staff Attorney
California nursing homes are awash in psychotropic drugs with nearly 60% of residents receiving at least one antipsychotic, anti-anxiety, mood stabilizer, or sedative medication. That incredibly high number is probably far greater when short-term rehabilitation residents are excluded from consideration. Nearly 25% of residents receive powerful antipsychotic drugs, including a great number of residents with dementia. A number of factors, some overt and some insidious, contribute to this massive drugging problem.
The first factor in the overuse of psychotropic drugs in nursing homes is a long-term care culture that favors drugs as the first option for treatment to any perceived behavioral problems. The responsibility for this bias lies squarely with physicians. Physicians in nursing homes are much like condors in the wild: rarely seen. Because most physicians spend little time with their nursing home patients, they do not observe their patients’ symptoms, instead relying on inexpert behavioral reports by nursing home staff. The lack of physician presence means that they are unable to rule out various causes of perceived behavioral problems, such as infections, dehydration, pain, or simple failure to receive psychosocial support.
In addition to their failure to spend quality time on their nursing home patients’ cases, physicians are also prone to overprescribe psychotropic drugs because of the persistent marketing efforts of pharmaceutical companies. The marketing efforts are pervasive and often bleed into illegal conduct. Last year, pharmaceutical giant Eli Lilly settled federal charges against it by agreeing to pay a record $1.4 billion for illegally marketing Zyprexa (an antipsychotic drug) for unapproved use by elders and children. Meanwhile Johnson and Johnson was recently sued by the U.S. Department of Justice for allegedly paying tens of millions of dollars in kickbacks to Omnicare, the nation’s largest long-term care pharmacy, to induce its pharmacists to recommend Risperdal (another antipsychotic drug) for nursing home residents with dementia.
Operating alongside physicians in creating the pervasive nursing home drug culture are nursing home staff members. The financial incentives in favor of psychotropic drugs are unmistakable. Drug costs are paid largely by Medicare Part D or Medi-Cal. Labor costs, however, are the greatest expense for nursing homes. When pills can be used as a substitute for labor, facilities can significantly augment their profit margins. As a result, some facilities are encouraged to use psychotropic drugs as chemical restraints, dispensed to residents to expressly control the “behaviors” that burden staff time such as wandering, crying for help, or being uncooperative.
The second factor contributing to the drugging epidemic is the utter lack of compliance with legal informed consent requirements. The failure of some doctors to meet with their patients is exacerbated by the methodology for most psychotropic drug prescriptions in nursing homes. In most cases, the prescription is ordered after a response to a staff person request and the doctor’s consent is provided by phone or fax. The resident, or his legal representative, is never consulted and certainly never asked for his consent. This process can lead to tragedy, as was realized in a Kern County nursing home, where three residents died following the administration of antipsychotic drugs without consent or doctor supervision.
The value of informed consent in limiting the use of psychotropic drugs is important because they have such significant side effects. In fact, studies demonstrate that antipsychotic drugs increase an elderly person with dementia’s risk of death by 1.6 – 1.7 times. The FDA now requires all of the commonly used antipsychotic drugs be packaged with Black Box Warning labels explaining that the drugs’ many side effects can be fatal. But nursing home residents rarely receive the warnings. The result is that residents or their legal decision makers, the last line of defense for the inappropriate use of drugs, are often totally excluded from the decision to receive them.
The final factor in the overdrugging of California nursing home residents is a failure to favor less intrusive treatment options when reviewing the efficacy of the drugs. Federal law requires that psychotropic drug regimens be reviewed at least once every three months, with a presumption that dosages should be reduced or eliminated. Instead, many nursing homes do not meaningfully consider reducing use and even ignore declines that might be caused by the drugs. This failure is implicitly encouraged by DPH – a review of state citations show that annually only three to four citations are issued against California’s 1200-plus nursing homes for failure to reduce drug use.
CANHR is dedicated to ending the inappropriate use of psychotropic drugs in nursing homes and has initiated a 2010 campaign aimed at all three factors contributing to the problem. In order to have a successful campaign, we will need the assistance of legal professionals to spread the word, influence policy-makers, and file lawsuits to compensate the myriad victims of California’s nursing home drug problem. For more information about the campaign, please contact CANHR.