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People in nursing homes and memory care facilities are no longer routinely tied down but far too many are given equivalent “chemical restraints:” atypical antipsychotic drugs. These are not the small doses of ativan, xanax or valium given to ease our passage when we are dying. These are drugs which create seeming “zombies” or kill.

In May 2011 the Inspector General of the Department of Health and Human Services reported that 83% of these drugs were administered for off-label conditions, including 88% for conditions for which they were counter-indicated in the Food and Drug Administration’s “black box” warning.1

As people manage to stay home or in assisted living facilities longer, the condition of nursing home patients is becoming more acute. There are also more and more people with dementia, be it Alzheimer’s, Lewy Body dementia, or a result of Parkinson’s or another disease of old age.

This increases demands on nursing home staff, most of whom are underpaid and undertrained nurse’s assistants (CNAs). Medicaid may only reimburse a limited amount for staff. But it does pay for drugs. As with so much in life, you get what you pay for.

This is an ongoing problem. It was well reported in 1975. In 1987 the federal Nursing Home Reform Law expressly provided that

Psychopharmacologic drugs may be administered only on the orders of a physician and only as part of a plan (included in the written plan of care…) designed to eliminate or modify the symptoms for which the drugs are prescribed and only if, at least annually, an independent, external consultant reviews the appropriateness of the drug plan of each resident receiving such drugs.2

Federal regulations issued under this law also require gradual dose reduction and at least a monthly review by a licensed pharmacist who reports to the attending physician and the director of nursing.3

However well-intentioned, the law and regulations are no match for money, particularly when inadequately and ineffectively enforced. Nursing home staff are inadequately trained in behavior management. Some drug companies aggressively market antipsychotic drugs for nursing home patients. Consultant pharmacies, critical in the drug review, often work for long-term care pharmacies. Atypical antipsychotics are a protected class which faces little review from Medicare Part D prescription drug plans.

But these drugs kill. Nursing home residents receiving antipsychotics are two to three times as likely to fracture a hip, have increased urinary incontinence and falls.4 People with heart conditions are at risk of any earlier death. No one really knows how the drugs work or how more than two drugs interact.

Even when they do not kill, result in falls and fractures, atypical antipsychotic drugs affect an elderly person’s ability to communicate, to use the bathroom, to feed themselves, and to participate in activities.

We must question their use and, if necessary, threaten to file a complaint, citing the law and regulations which are supposed to limit it.

1 Office of the Inspector General, Department of Health and Human Services, Medicare Atypical Antipsychotic Drug Claims for Elderly Nursing Home Residents, OE1-07-08-00150 (May 2011)

2 42 United States Code 1395i-3(c)(1)(D)

3 42 Code of Federal Regulations 483.25(1)(l) and 483.60(c)

4 David Sherman, “Using Common Sense to Reduce Antipsychotic Drug Use,” Contemporary Long Term Care (October 1991) and “Medication Use and Falls,” Contemporary Long Term Care (November 1991)

Estate Planning attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

She assists families of people with special needs, people planning for the retirement years and people administering estates.

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