by Anthony Chicotel, CANHR Staff Attorney
In early 2011, DPH issued AFL 11-08 to clarify that its informed consent rules for psychotropic drugs in nursing homes applied to drugs that were prescribed prior to the resident’s admission.* The purpose of the clarification was to guarantee informed consent is obtained for any psychotropic drug administration in California nursing homes. Informed consent is often totally disregarded in hospital and outpatient settings so verification by nursing homes is often critical to preventing impermissible and unnecessary drugging.
When AFL 11-08 was released, some provider groups expressed alarm, claiming that verifying or obtaining informed consent before administering psychotropic drugs to new nursing home residents would delay needed treatment. The impression was that verifying “pre-existing” drug prescriptions would cause a sea change in nursing home psych drug administration practices.
CANHR recently reviewed DPH’s statistics regarding enforcement actions involving 22 California Code of Regulations Section 72528(c), the regulation involving informed consent verification by nursing homes. In 2010, the year before AFL 11-08 was written, DPH issued three deficiencies and zero citations for violations of Section 72528(c). In 2011, with AFL 11-08 fresh on the mind of DPH investigators, it issued only seven deficiencies and zero citations through November 30.** So the numbers suggest that nothing has changed and informed consent remains a trifling concern of DPH.
Until DPH investigators actually begin to examine compliance with informed consent rules, nursing homes have little to fear when continuing a pattern of abusive drugging without verifying consent. Residents deserve better enforcement of the rules designed to protect them from inappropriate and harmful drugging.
* Verification of pre-existing psychotropic drug prescriptions has always been required by 22 CCR Section 72528. The AFL simply clarified this fact.
** At least four of the seven deficiencies issued in 2011 came from DPH’s special Anti-Psychotic Drug Collaborative, suggesting even the marginal increase in deficiencies was not due to regular DPH enforcement efforts.