Clement Law Group

All too many Americans believe that the sedate, docile elderly people they’ve come to expect in nursing homes are a normal state of affairs. It’s not unreasonable to assume this behavior is a result of aging or chronic illnesses like dementia. However, for many nursing home residents, this sedation is not caused by old age but by the side effects of their medications – medications they should have never been prescribed in the first place.

The use of chemical restraints to subdue nursing home residents is dangerous, illegal, and yet also a widespread practice among nursing homes. Federal regulations define chemical restraints as any drug that is used for disciplinary purposes or the convenience of staff, rather than for treating medical symptoms. These drugs are administered to an individual for the purpose of controlling their behavior, especially if they have dementia, which may make care more difficult.

Chemical restraints usually come in the form of antipsychotic drugs. Antipsychotics alter consciousness and can adversely affect an individual’s ability to interact with others. While their use is valid when treating diagnosed bipolar disorder, schizophrenia, or other psychiatric disorders, nursing facilities commonly administer these drugs to residents who do not have these diagnoses.

Haldol, Zyprexa, Seroquel, and Risperdal are all antipsychotics commonly used in long-term care facilities as chemical restraints. These and other antipsychotics sedate residents so that not only their behaviors but also the underlying causes for those behaviors do not have to be addressed. Like other resident care problems in nursing homes, the use of chemical restraints is attributable to a lack of adequate staff.

Antipsychotics are powerful, and responsible doctors will only prescribe them with extreme caution even when treating diagnosed psychiatric disorders. Many risks come along with taking antipsychotics, and those risks become a magnitude greater when they’re used as restraints rather than for their intended medical purpose. Common side effects include agitation, sedation, disordered thinking, muscle disorders, low blood pressure, constipation, and loss of appetite. The lethargic behaviors exhibited among drugged-up residents also substantially increase the risk of falls which are injuring or fatal. This is why antipsychotics usually have “black box warnings” – FDA labels warning of an increased risk of death if administered to elderly people with dementia.

Through the National Partnership to Improve Dementia Care in Nursing Homes, the federal government has sought to reduce the illegal use of chemical restraints, but many nursing homes still rely on antipsychotics to subdue their residents. State officials do little to enforce the laws prohibiting chemical restraints, and doctors tend to rubber-stamp drug orders requested by nursing homes.

The culture of a nursing home, rather than a resident’s medical needs, decides if you or your loved one will be subjected to chemical restraints. Human Rights Watch’s report, “They Want Docile”: How Nursing Homes in the United States Overmedicate People with Dementia, notes that in an average week, nursing homes in the US administer antipsychotics to over 179,000 people who do not have the diagnoses for which the drugs are intended to treat.

Should a nursing home administer these drugs to your loved one without consent, you have the right to demand them to stop. Nonconsensual chemical restraints are illegal and constitute battery. You have no obligation to accept a doctor’s recommendation to use antipsychotics – strongly consider seeking a second opinion. Antipsychotics can be deadly, and harm from their wrongful use may be cause to seek legal action.

To find out more about chemical restraints and what can be done to prevent their use, please refer to CANHR’s guide Restraint-Free Care and the Long Term Care Community Coalition’s Protecting Nursing Home Residents From Chemical Restraints.

It is an unfortunate truth of the nursing home industry that families must maintain constant vigilance to ensure their loved ones are receiving decent care. Neglectful and even malicious treatment can arise in both “good” and “bad” nursing homes, and even better nursing homes often have standard procedures that violate U.S. law to the detriment of their residents.

An important red flag to keep an eye out for is the use of physical restraints. According to Justice in Aging’s 25 Common Nursing Home Problems & How to Resolve Them, the most common physical restraint is a vest which ties residents into wheelchairs or beds. However, seat belts, bed rails, and chairs angled to prevent residents from standing up have also been frequently employed in nursing homes.

Federal law mandates that physical restraints can only be used to treat very specific medical conditions or symptoms, but it’s all too common for nursing homes to tie down residents to prevent them from wandering. It’s important to know that physical restraints require consent from either the resident or their representative. Nursing homes or their medical staff do not have the authority to restrain someone without permission. Additionally, they are obligated to make alternatives available.

Restraints can never be used for punishment or a nursing home’s convenience. A vast medical consensus indicates that restraints are harmful to residents. Far from ensuring a resident’s safety, they may actually cause residents to become more at risk of falls and injuries. Worse, some residents have been known to die of asphyxiation after becoming tangled in their restraints. A resident’s frustrated attempts to escape can easily become more dangerous than them having no restraints at all. This is to say nothing of the psychological toll of restraints either.

If a nursing home recommends restraints to prevent your loved one from wandering, you should say no if it is clear restraints would be imposed for the nursing home’s convenience. It’s incumbent upon the nursing home to increase staffing levels, install monitoring systems, or offer mentally stimulating activities to mitigate wandering, rather than punish your loved one. If a doctor proposes restraints to treat medical symptoms, it is important to discuss care plans and examine alternatives to ensure this is a solution with more benefits than risks.

Should a nursing home put restraints on your loved one without consent, you have the right to demand their immediate removal. Imposing restraints without permission is illegal and constitutes false imprisonment and battery. Lasting harm as a result of physical restraints may be cause to seek legal action.

For the millions of families in America faced with the tough time of placing their loved ones in a nursing home, Medicare’s online quality ratings are meant to help them make the right choice. Since 2008, Medicare has published quality ratings for every nursing home in its network according to a five-star system. A nursing home awarded five stars is meant to be a top tier facility, but for many homes that rating doesn’t hold up under scrutiny.

A 2019 study by Amanda Sharkey and Amandine Ody-Brasier found little correlation between a nursing home’s ratings and its actual health outcomes. Worse, the findings of their study concluded that nursing homes are likely gaming the Medicare rating system, utilizing dishonest tactics to inflate their scores.

The amount of stars a nursing home is awarded is determined by three sub-ratings: patient outcomes, results from onsite inspections, and staffing levels. Critically, the patient outcome and staffing level sub-ratings are based on the nursing home’s self-reported numbers and payroll information, meaning they can adjust their own scores to receive more stars. It’s a method that relies far too much on the honor system – if a nursing home overstates its staffing levels or does not disclose negative patient outcomes, it can receive a five-star rating it does not deserve. This means countless families are deceived into believing their loved ones will be properly cared for at a well-staffed facility.

Sharkey and Ody-Brasier were first alerted to this tactic when studying a change in the Centers for Medicare and Medicaid Service’s parameters for maintaining each star rating. In 2012, the staff number requirements were raised for every star rating, meaning many nursing homes had to hire new nurses if they wished to maintain their previous rating. Sharkey and Brasier expected to find data indicating that an increase in nursing hours for each patient leads to better health outcomes. This wasn’t an unreasonable hypothesis, considering it’s backed up by countless studies and nursing experts, in addition to being general common sense.

Instead, they found that nursing homes which reported staff increases failed to see a correlated increase in quality of care. The rate of bedsores, for example, did not decrease even though they are extremely preventable with a sufficient amount of care. This is a strong indicator that nursing homes are cheating the system by reporting staff numbers that just aren’t consistent with the reality on the ground.

Families seeking a clean and attentive nursing home for their loved one should regard the Medicare ratings with caution. Poor quality nursing homes can often be fatal for the elderly residents that wind up in them, as well as deeply traumatic for the surviving families. The safest course of action is to visit nursing homes personally, assessing the overall cleanliness and speaking to current residents and staff. Don’t be deceived by facilities that would rather cheat the ratings than make your loved one’s health a priority.

The COVID-19 pandemic has had a devastating impact on society, and that impact has hit the elderly the hardest. Though the virus is spreading like wildfire through nursing homes and other long-term care facilities, reporting from The Associated Press demonstrates that deaths from COVID are only a shadow of the dangers posed to elderly loved ones in this troubled time.

Chronic understaffing at nursing homes had been a problem long before the COVID-19 pandemic, one serious enough that it was a common cause of elder abuse in said facilities. COVID-19 exacerbated this understaffing issue to previously unseen levels, as nurses already in stressful, low pay positions prior to the pandemic have been overworked from colleagues testing positive or calling in sick. Federal data indicates that in states where virus cases are surging, almost a quarter of nursing homes are reporting staff shortages.

This has had deep consequences on the level of care afforded to our elderly population. When long-term care facilities were initially sealed off in March, inspectors and advocates were locked out as well, even as disturbing reports leaked about major medical declines in nursing home residents. As families have gradually been permitted to visit their loved ones once again, they’ve often been horrified at what they see.

Grandmothers kept in soiled diapers so long their skin peeled off, grandfathers with tunneling black bedsores, and reunions that became funerals as loved ones perished from dehydration or starvation – this is the toll of the neglect that has become far too common in the wake of the pandemic. As more than 90,000 Americans in long-term care facilities have died to COVID-19, elder advocates report that deaths from neglect have also spiked and could total more than 40,000.

An expert who analyzed data from the nation’s nursing homes on behalf of The Associated Press estimates for every two COVID-19 deaths in long term care facilities, there is a premature death resulting from physical neglect or “failure to thrive.” The latter is the term listed on some death certificates for instances where doctors believe the deaths resulted from the despair of prolonged isolation.

Considering the scale of the dangers posed to nursing home residents in these times, it is vital to safely be there for your loved ones if they live in such a facility. To better understand what indicators to be on the alert for in order to keep them safe, please refer to the post, “COVID-19: What to Look for When Visiting Long-Term Care Facilities.”