Marquette Elder's AdvisorVolume 2Issue 2 Fall Article 5

Legal Aspects of Chemical Restraint Use inNursing HomesJulie A. Braun

Lawrence A. FrolikUniversity of Pittsburgh School of Law

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Repository CitationBraun, Julie A. and Frolik, Lawrence A. (2000) "Legal Aspects of Chemical Restraint Use in Nursing Homes," Marquette Elder'sAdvisor: Vol. 2: Iss. 2, Article 5.Available at: http://scholarship.law.marquette.edu/elders/vol2/iss2/5

The Legal Aspects of ChemicalRestraint Use in Nursing Homes

Chemical restraint, the excessive con-

trol of behavior by the use of medica-

tion, is just one of the many risks faced

by the residents of nursing homes. This

article explores the definition of chemi-

cal restraint, its adverse effect, relevant

federal and state laws and regulation,

customary industry practice, and prac-

tice tips for correcting discovered

abuse.

By Julie A. Braun andLawrence A. Frolik

Julie A. Braun, J.D., L.L.M. is a Chicago-based healthlaw attorney and writer. She is Co-Chair Elect of theAmerican Bar Association Torts and Insurance PracticeSection Medicine and Law Committee and former ViceChair of its Seniors' Law Committee. She teaches,writes, and lectures nationally on health law subjects.Lawrence A. Frolik is a Professor of Law at theUniversity of Pittsburgh School of Law. He is the co-author (with M. Brown) of Advising the Elderly orDisabled Client (2d ed., Warren Gorham & Lamont),Residence Options for the Older or Disabled Client(Warren Gorham & Lamont), and Aging and the Law:An Interdisciplinary Reader (Temple University Press).

he 1.6 million people who live in thenation's nursing homes are a highly vul-nerable population. Among the risksfaced by nursing home residents areexcessive behavior control and restraint

by the use of medication, commonly referred to aschemical restraint. "[M]edication, when used judi-ciously, can be a valuable adjunct in maximizingfunction and maintaining well-being in elderlynursing home residents. When used inappropriate-ly, [it] can be an instrument of harm, abuse, negli-gence and malpractice."' Of course, drugs are usedfor a variety of purposes and may have a positivevalue as part of a well-planned therapeutic strategy.For example, absent treatment, severe depressioncan lead to suicide or indirect life-threateningbehavior such as a failure to eat. Too often, how-ever, drugs are used without adequate monitoringfor harmful side effects, or even worse, are used torestrain rather than help the resident. Moreover,many, if not most, residents take multiple drugs, apractice known as polypharmacy.2 How many istoo many? While no precise guidelines exist, it isknown that as the number of prescription drugsincreases, the likelihood of drug interactions, toxi-city, and side effects increases exponentially for theolder adult.' Five drugs or more in a treatment reg-imen arouses concern; ten or more sharply increas-es the likelihood that the resident will experiencedeleterious side effects. 4

What Are Chemical Restraints?Chemical restraints include "any drug that is usedfor discipline or convenience and not required totreat medical symptoms."' Interestingly, this defin-ition no longer singles out psychopharmacological

22 Elder's Advisor

drugs.6 Removing the term psychopharmacologicalfrom the standard acknowledges that a wide rangeof drugs may be used as chemical restraints.Discipline means "any action taken by the facilityfor the purpose of punishing or penalizing resi-dents." 7 Convenience involves actions taken by thefacility to reduce its burdens rather than to pro-mote the best interest of the resident

Older nursing home residents who suffer frommental disability are often prescribed psychotropicmedications. Commonly prescribed psychotropic9

medications appear in Table 1 0 This list is notexhaustive; new drugs continue to be developedand employed.

Adverse Effects of Chemical RestraintWhen used properly, psychotropic drugs can be animportant treatment therapy. Unfortunately, suchdrugs can also be used to control or chemicallyrestrain residents who would otherwise posebehavioral problems. A growing awareness of therisk of chemical restraint has led to an examinationand reevaluation of drug use in long-term care

facilities. (Even drugs prescribed for medicallysound reasons may have harmful side effects par-ticularly when they interact and when used withover-the-counter drugs.)

Aging affects how the body handles a drug (thatis, movement into, around, and out of the body) aswell as the specific action of the drug itself on theolder person's body. A review of nineteen clinicalstudies concluded that a substantial number ofnursing home residents who were taking psy-chotropic drugs on a regular, long-term basis suf-fered harmful side effects." A 1997 report releasedby the Office of Inspector General Department ofHealth and Human Services arrived at a similarconclusion.' 2 Numerous drugs and drug combina-tions place persons over the age of sixty-five atgreater risk of adverse drug outcomes.13

Not surprisingly, overuse of drugs erodes theresident's autonomy. Overdrugged residents maynot speak or think clearly and exhibit less interestin self-care. Other consequences of over-reliance ondrugs or the resort to chemical restraint include therisks presented in Table 2."

Table 1. Psychotropic Medications (generic name followed by brand name in parentheses)

Antidepressant MedicationsImipramine (Tofranil)Desipramine (Norpramin)Doxepin (Adapin, Sinequan)Nortriptyline (Aventyl, Pamelor)Fluoxetine (Prozac)Sertraline (Zoloft)Trazodone (Desyrel)

Antipsychotic MedicationsHaloperidol (Haldol)Thioridazine (Mellaril)Thiothixene (Navane)Chlorpromazine (Thorazine)Risperidone (Risperdal)Olanzapine (Zyprexa)

Mood StabilizersLithium carbonate (several brands)Valproic acid (Depakene)

Anxiolytic Medications(counteract or diminish anxiety)*

Oxazepam (Serax)Alprazolam (Xanax)Diazepam (Valium)Lorazepam (Ativan)Diphenhydramine (Benadryl)Hydroxyzine (Atarax, Vistaril)Buspirone (BuSpar)

Sedative-Hypnotic Medications**(sleep inducers)

Flurazepam (Dalmane)Temazepam (Restoril)Lorazepam (Ativan)Oxazepam (Serax)Diphenhydramine (Benadryl)Hydroxyzine (Atarax, Vistaril)Chloral hydrate (several brands)

* TABER'S CYCLOPEDIC MEDICAL DICTIONARY, 129 (17th ed. 1993) (defining anxiolytic).* Id. at 944, 1773 (defining hypnotics and sedative, respectively).

ARTICLE The Legal Aspects of Chemical Restraint Use in Nursing Homes 23

Table 2. Consequences of Chemical Restraint

* Agitation e Functional decline* Gait disturbance 9 Increased fall risk* Memory impairment o Movement disorders* Sedation * Orthostatic/Postural* Withdrawal hypotension

Increased Fall Risk"An increase in body sway or unsteadiness hasbeen demonstrated shortly after the administrationof psychotropic medications" in the older adult.'5

Any drug that interferes with the resident's postur-al control, cerebral perfusion, or cognitive functionmay potentially influence a resident's gait and bal-ance and induce a fall. 6 Injuries suffered as a resultof the fall may lead to further decline. 17

Orthostatic/Postural HypotensionmMedications with anticholinergic" properties (forexample, tricyclic antidepressant drug therapy) maycause a drop in blood pressure when the patientattempts to stand. This may result in dizziness,fainting, falls, and even heart attack or stroke.2"

SedationOlder residents are more vulnerable to the commonside effects of psychotropic medication, such assedation, and may experience drowsiness ordecreased consciousness. Families who find a rela-tive unresponsive or difficult to wake should inves-tigate whether staff members are using drugs mere-ly to make the resident more quiescent and easierto care for. If so, there may be grounds for a suc-cessful lawsuit.

Movement DisordersSome psychotropic drugs cause a complete or par-tial loss of muscle movement that markedlydecreases body activity (akinesia);21 motor restless-ness-an inability to sit still (akathisia);22 musclespasms of the eye, neck, and back (dystonias);23

stiffness, rigidity, tremor, and drooling (symptomsresembling Parkinson's disease);2 4 and slow, rhyth-mical, involuntary, repetitive, purposeless move-ments involving the eyes, face, mouth, tongue,trunk, and limbs (tardive dyskinesia).25

Memory ImpairmentPsychotropic medications may cause the patient tobecome confused, disoriented, or suffer amnesia.

Functional DeclineMany residents who receive psychotropic drugssuffer functional decline in activities of daily livingsuch as eating, walking, dressing, using a wheel-chair, or using the restroom. If the decline is notreversed, the resident is at risk of malnutrition,contractures, aspiration pneumonia, and pressuresores.

26

AgitationSedative or hypnotic drugs may cause somepatients to become agitated, experience insomnia,hallucinations, nightmares, and become hostile oreven violent.

WithdrawalEven taking the resident off the drugs can be prob-lematic. Many residents suffer severe physical orpsychological withdrawal symptoms. To avoidthese and other harmful effects, drugs must be care-fully prescribed and monitored. Any side effectsmust be documented, and the resident's behaviormonitored.

Federal Law and RegulationFor years nursing homes felt free to use drugs as aform of chemical restraint.27 This pattern of prac-tice changed dramatically with the passage of thelandmark nursing home reforms contained withinthe Omnibus Budget Reconciliation Act of 1987(OBRA '87).28 The OBRA '87 contains the NursingHome Bill of Rights29 that applies to residents offacilities certified for participation in the Medicareand Medicaid programs, the primary funders oflong-term care.3" (Implementing regulations appearin Title 42 of the Code of Federal Regulations.31)The Health Care Financing Administration(HCFA), within the Department of Health andHuman Services is responsible for ensuring thequality of nursing homes as part of its oversight ofthe Medicare and Medicaid programs.Government surveyors rely on HCFA guidelines,which are periodically updated, when they evaluatecompliance with, among other things, the appro-priateness of chemical restraint.

Elder's Advisor

Freedom from Chemical RestraintThe Nursing Home Bill of Rights specifically statesthat nursing home residents have "the right to befree from physical or mental abuse, corporal pun-ishment, involuntary seclusion, and any physical orchemical restraints imposed for purposes of disci-pline or convenience, and not required to treat theresident's medical symptoms."32 The statute furtherstates that "physical or chemical restraints mayonly be imposed.. .to ensure the physical safety ofthe resident or other residents." 33

Interdisciplinary Approach to Resident CareUnder federal law each resident must receive thecare needed to "attain or maintain the highest prac-ticable physical, mental, and psychosocial well-being." 34 A nursing home is required to create acomprehensive interdisciplinary clinical evaluationand care plan that demonstrates how it expects toassist the resident in reaching his or her highestlevel of well-being.3" An interdisciplinary geriatricteam may consist of a physician, nurse, pharmacist,activities therapist, occupational and physical ther-apists, speech and language pathologist, or a socialworker.36 The team creates a care plan, which mightinclude the use of drugs. If, however, the plan doesnot, any use of drugs represents an unacceptableand illegal form of control or restraint.

The Need for Informed ConsentEven if the care plan recommends the use of drugs,the resident must consent to such use. Residents, ortheir legal health care decision-makers, must giveinformed consent before they are given drugs forany purpose, including as a device to controlbehavior.37 The risks, benefits, and alternatives torestraint must be explained in the context of theresident's condition, circumstances, and environ-ment. The resident has the right to refuse or acceptchemical restraint38 even if the resident's physicianrecommends the medication, or the facility claimsthat without it the resident is too difficult to man-age.39 Significantly, a resident's refusal does notabsolve the facility from providing care that allowsthe resident to attain or maintain the highest prac-ticable physical, mental, or psychosocial well-being.

When a resident is incapable of making aninformed decision, the resident's legal surrogate orrepresentative may exercise the right based on thesame information that would have been provided

to the resident. ° However, the legal surrogate orrepresentative cannot give permission to use chem-ical restraints for discipline or staff convenience orwhen the restraint is not necessary to treat the res-ident's medical symptoms." Residents can state intheir advance health care directives their prefer-ences concerning chemical restraint use.42

Physician Order RequiredAssuming that proper informed consent to the useof a drug has been obtained, it can be used "onlyupon the written order of a physician that specifiesthe duration and circumstances under which therestraints are to be used."43 The physician's orderwill appear directly in the nursing home resident'srecord or as a telephone order later signed by thephysician. In an emergency, however, chemicalrestraints may be used without a physician's orderunless the nursing home has been previously noti-fied that such treatment is not acceptable.44

Federal Law Prohibits Unnecessary DrugsFederal law requires that "[e]ach resident's drugregimen must be free from unnecessary drugs. " "According to federal regulations, an unnecessarydrug is any drug used:46

" in excessive dosage, including duplicate drugtherapy;

" for excessive duration;" without adequate monitoring;" without adequate indications for its use;" in the presence of adverse consequences which

indicate that use of the drug should bereduced or discontinued; or

" any combination of the reasons above.4

Check the surveyor's guidelines interpreting thefederal regulations for acceptable dosages for spe-cific medications. For example, daily use is equal toor less than 7.5 mg by mouth for temazepam(Restoril), a drug for sleep induction, unless higherdoses (as evidenced by the resident's responseand/or clinical record) are necessary for mainte-nance or improvement in the resident's functionalstatus.48

Although the federal guidelines do not create aprivate right of action, there have been successfulcivil suits for damages caused by excessive druguse. For example, a $908,800 settlement wasreached in a case involving a sixty-one-year-old

ARTICLE The Legal Aspects of Chemical Restraint Use in Nursing Homes

nursing home resident who was given too muchLithium, a drug with a narrow safety margin. 9 Theplaintiff claimed that excessive doses of Lithiumwere given over a three-week period, resulting inacute Lithium toxicity and cognitive brain dam-age.

50

Gradual Dose ReductionIf the resident is a victim of chemical restraint, thereduction of drug dosages must be carefully moni-tored. There should be a systematic and gradualprocess of reducing or discontinuing the drugs thatfollow a physician-approved care plan.' "Gradualdosage reductions consist of tapering the resident'sdaily dosage to determine whether the resident'ssymptoms can be controlled by a lower dose or ifthe drug can be eliminated altogether." 2 Federalregulatory guidelines identify time periods withinwhich gradual dose reduction should be attempted.For example, a gradual dose reduction should beattempted at least twice within one year for benzo-diazepines.53 For drugs in the sedative-hypnoticclass, a gradual dose reduction is recommended atleast three times within six months before conclud-ing that a gradual dose reduction is clinically con-traindicated s4 Antipsychotic and antidepressantmedications require gradual dose reduction, but notime period is suggested.5

Response to Federal Law and RegulationThanks to federal and state regulations, thereappears to be a reduction in the use of chemicalrestraints in nursing homes.5 6 Clinicians reportthat OBRA '87 mandates regarding drug usagehave increased awareness of chemical restraint 7

and have significantly reduced the excessive use ofdrugs in nursing homes.5s Still, resident advocacygroups, such as the National Citizens' Coalitionfor Nursing Home Reform, claim that the use ofpsychotropic medication remains unnecessarilyhigh.

5 9

State Law and RegulationVirtually every state regulates restraint use in nurs-ing homes. For example, Arkansas law prohibitschemical restraint unless authorized by a physicianfor a specified time period or needed for an emer-gency.6 Residents injured by a facility's violation ofthis law may sue to recover actual and punitivedamages, but the court cannot award attorneys'fees.61 Colorado law limits chemical restraint to

instances when there is an emergency and no lessrestrictive alternatives are available or appropri-ate.62 New York law requires the following con-trols:

" psychotropic drugs must not be used for disci-pline or convenience;

" psychotropic drugs must be ordered only by aphysician who specifies the problem for whichthe drug is prescribed;

" psychotropic drugs may be used only as anintegral part of the resident's comprehensivecare plan and only after alternative methodsof treating the resident's condition or symp-toms have been tried and have failed;

" efforts must be made to discontinue psy-chotropic drug use through gradual dosereductions and behavioral interventions; and

" psychotropic drug use must be discontinued ifthe harmful effects outweigh the benefits ofthe drug.63

Customary Industry PracticeNursing home risk managers and attorneys han-dling or defending chemical restraint cases mayfind it useful to compare the frequency of chemicalrestraint use in the facility in question with that ofother nursing homes. The customary industry prac-tice, in part, establishes the legal standard of care.

Major Organizational Positions on ChemicalRestraintsWhen determining what constitutes unnecessaryuse of drugs, courts naturally rely on relevant gov-ernment statutes and regulations as well as cus-tomary industry practice. They also look to majororganizational policy statements regarding chemi-cal restraint use as evidence of what is the appro-priate standard of care. The American Associationfor Geriatric Psychiatry and the AmericanGeriatrics Society have issued statements on the useof psychotherapeutic medications in nursinghomes.' Both organizations "emphasize the impor-tance of distinguishing between the appropriate useof psychoactive medications and their misuse."65 Inaddition, the American Health Care Association,representing more than 10,500 nursing homes, hasadopted a set of practice guidelines to reduceantipsychotic medication use in long-term carefacilities."6

Elder's Advisor

Voluntary Accreditation StandardsThe accreditation process also plays an importantrole in determining industry standards. The JointCommission on Accreditation of HealthcareOrganizations (JCAHO) 1998-1999 Compre-hensive Accreditation Manual for Long-Term Careincludes standards for chemical restraint use. 7 Thestandards focus on individual resident needs andindividualized assessment. 68 The legal significanceof JCAHO standards lies in their admissibility asevidence of the acceptable tort standard of care.69

Hypothetical Chemical Restraint CaseThe difference between drug use as a form of chem-ical restraint versus appropriate therapy is demon-strated in the following hypothetical. °

FactsAnn Jones, an eighty-five-year-old female withdementia, is confined to a wheelchair because ofsevere arthritis and the amputation of her right footfrom complications of diabetes. In the last fewweeks she has begun to scream, curse, and grab atstaff and visitors. During mealtimes she takes otherresidents' food and casts her own food off thetable. All agree that Ann's behavior is unacceptableand requires the use of a behavior-altering drug.

Solution AAnn's new care plan includes pain managementand dietary assessment for food preferences andadequacy of portions. Different behavioral strate-gies are initiated, including increased socialization.Alternate feeding strategies were tried for Ann,including a change in her feeding environment andthe type of food offered. After these behavior andfeeding strategies proved ineffective, her physicianprescribed low doses of Haldol (0.5 milligramsevery eight hours). The result was decreased agita-tion, more cooperation about eating, and less dis-ruption at meals.

Solution BThe facility isolated Ann in her room where shecontinued to scream loudly. She ate alone andthrew her food on the floor. The staff complainedto her physician, describing Ann as an uncoopera-tive nuisance in need of calming down. The physi-cian responded by ordering Haldol (1.0 milligramsevery six hours) plus Ativan (2 milligrams every six

hours) as needed. The result was that Ann becamea quiet, sleeping, drooling resident in a wheelchair.

AnalysisIn Solution A, the prescribed medication was notused as a chemical restraint because it was appro-priately integrated with behavioral and feedingstrategies. Most importantly, the dosage of themedication was not excessive. Only enough wasprescribed to calm Ann, but not enough to sedateher.

In sharp contrast, Solution B demonstratesinappropriate chemical restraint use (in violation of42 C.ER. S 483.13(a)). The medication regimenconstituted unnecessary drug therapy (in violationof 42 C.ER. S 483.25(l)(1)). No behavioral inter-ventions were attempted (in violation of 42 C.ER.

483.25(1)(2)(ii)). In addition, multiple medica-tions were inappropriately administered in exces-sive dosages without monitoring for side effects (inviolation of 42 C.ER. S 483.25(1)). The medicationwas administered for staff convenience (in viola-tion of 42 C.ER. S 483.13(a)). Moreover, Ann wasnot treated with dignity (in violation of 42 C.ER.S 483.15(a)) and was a victim of involuntary seclu-sion (in violation of 42 C.ER. S 483.15(a)). Thephysician did not appropriately monitor changes inthe resident's medical status (in violation of 42C.F.R. S 483.40).

Practice Tips

Understanding Medical TerminologyAttorneys who represent nursing home residentsmust understand medical terminology and knowhow to read the nursing home record. Unless anattorney possesses a formal education in medicineor nursing, the terminology found in a nursinghome record can be perplexing. A medical dictio-nary such as Taber's Cyclopedic MedicalDictionary, Mosby's Drug Guide for Nurses, or thePhysician's Desk Reference7' can be helpful inunderstanding the nursing home record, whichmay differ materially in content and organizationfrom hospital or other medical facility records withwhich the attorney may be familiar.

Examining the Nursing Home RecordNursing home residents' medical charts vary inlength and complexity, depending upon the resi-

ARTICLE The Legal Aspects of Chemical Restraint Use in Nursing Homes 27

dent's physical and mental health, the number ofpersons involved in the resident's care and, to a cer-tain extent, the sophistication of the facility. Forexample, the level of documentation in a small,rural nursing home may be quite different from thedocumentation practices of a private, profit-mak-ing facility owned by a national chain.

The facility is required to maintain an individ-ual medication record for each resident.72

Medication refers to all prescription and over-the-counter medications taken by the resident, includ-ing dosage, frequency of administration, andrecognition of side effects likely to occur in the res-ident. Though this information need not appear inthe resident's assessment, it must be included in theresident's clinical record and care plan. Table 3reflects some of the terminology typically encoun-tered in a resident's medication record.

Whenever excessive or inappropriate drug use issuspected, the attorney needs to inquire about whatdrugs, in what strength and what dosage forms, arebeing administered to the resident. The attorneyshould also inquire when (such as daily or aftermeals) and how (by mouth or intramuscular injec-tion, for example) the drugs are administered. Eachfacility will have a policy relative to dosing sched-ules. Usually there is an early and late medicationpass during an eight-hour shift. The morning iswhen most doses are administered in long-termcare facilities. In practice, one nurse may adminis-ter medication for 30 or more residents in what isreferred to as the drug administration pass.

Even a careful examination of the resident's filemay not reveal chemical restraint. Often facilitypractices may not be reflected in the resident's

chart, or the staff may correct the paper entryrather than the practice. Compare family and resi-dent observations with current signed orders fordrug use. There may be fraudulent entries andincomplete charting. Some questions to considerinclude the following:

" Did a valid order for the administered drug(s)exist?

" Was each drug administered according to thephysician's order?

" Was each drug given in the correct strengthand by the correct method?

" Was the drug used appropriate for the resi-dent?

" Were any blank spaces detected on the med-ication administration record (MAR) which iscommonly kept in a notebook with the med-ication cart for convenience in distributingmedications to the residents?

Reviewing the Nursing Home SurveyHCFA contracts with state agencies to survey nurs-ing homes to ensure that they meet Medicare andMedicaid participation requirements. As part ofthis oversight, state agencies are required to recordany deficiencies that exist in the homes they survey.When inspectors cite a facility for violating a spe-cific regulation (known as an F Tag), they also ratethe scope and severity of the violation. Inspectionreports often are difficult to read and may be quitelengthy (over 100 pages). They usually contain pro-fessional jargon, medical terminology, and refer-ences to nursing home standards. Yet it is impor-tant to examine these inspection reports to deter-

Table 3. Principal Charting Terminology (medical abbreviation followed by definition)

qh every hour qod every other day subq subcutaneousqd once a day qon every other night INJ injectionqm every morning prn as needed IM intramuscularbid twice a day hs at bedtime C/O complains ofbin twice a night po by mouth OTC over the countertid 3 times a day NPO nothing by mouth Rx prescription treatmenttin 3 times a night ac before meals TO telephone orderqid 4 times a day pc after mealsqin 4 times a night subcu subcutaneous

28 Elder's Advisor

mine whether the facility has been cited for anydeficiencies or other violations that may relate tosuspected chemical restraints.

Facility Policy and ProcedureEvidence that written institutional policies and pro-cedures have not been enforced is often the basisfor establishing that the standard of care has notbeen met. Even if the staff follows the facility pro-cedures, however, it is possible that the nursinghome policies and procedures are not in compli-ance with federal and state regulations. The failureto abide by federal or state laws may not create aprivate right of action, but facility publications dis-tributed to prospective residents or their familiesmay create contractual obligations that may giverise to a cause of action based on breach of con-tract. Examine the admissions contract to see if itcontains language about the quality of care thatmay support a claim for damages. Even medicalstaff bylaw provisions and facility contracts withphysicians may contain clauses that address the useof chemical restraint.

Constructing the Event ChronologyWhen representing an injured or deceased nursinghome resident, it is important to appreciate thetimeline of events that precipitated the injury ordeath. Cases involving chemical restraint oftenunfold over weeks, months, or years, and mayinvolve complex events. These events may includebehavioral changes, institutional transfers, assess-ments and reassessments, multiple injuries, andhospitalizations. A properly constructed chronolo-gy navigates the attorney through the discoveryprocess, including the formulation of depositionquestions. In addition, the medical chronologyassists throughout settlement negotiation and dur-ing trial. A good chronology provides more than asummary of medical care. If the case goes to trial,a detailed chronology will introduce the jury to theevents that led to the injuries and their sequelae.

Assessing Staff Attitude, Knowledge, andTrainingAny attempt at prophylactic actions to reduce orforestall chemical restraint must begin with staffattitudes. The staff must be knowledgeable aboutthe dangers of excessive drug use. They must beaware of when and how to administer medication

and the importance of monitoring for side effects.Training is essential to minimizing use of chemicalrestraint. The staff, from the governing board tothe nurses and nurses' aides, must receive compre-hensive, up-to-date training regarding chemicalrestraints and their alternatives. The subject shouldbe introduced during a new employee's orientation,and thereafter the facility should conduct regularstaff training programs.

The American Society of Consultant Pharma-cists, a national professional association represent-ing more than 6,300 pharmacists who provide med-ication distribution and consultant services to man-age and improve drug therapy outcomes of individ-uals residing in long-term care environments, rec-ommends that nurses' aides receive four hours of in-service training per year relating to medication sideeffects. 3 The American Association of Homes andServices for the Aging agrees with the need for moreeducation and training for all involved parties.74 TheAmerican Medical Directors Association (AMDA),a major association representing physicians com-mitted to the care of nursing facility residents, pro-vides instruction on appropriate drug use in theirprogram to certify long-term care medical direc-tors. 5 The AMDA suggests that at the facility level,surveyors, consultant pharmacists, and physiciansshould be reminded of the dangers associated withsome drugs and be directed to pursue a reduction intheir use.76

ConclusionAttorneys who represent residents of nursinghomes or the families of such residents must bealert for drug misuse and overuse. Any suspicion ofthe use of chemical restraints should be aggressive-ly investigated, protested, and, if necessary, prose-cuted by civil suit.

Endnotes1. Jeffrey M. Levine, Medical and Legal Aspects of

Chemical and Physical Restraint Use in theNursing Home in 75 AM. J. TRIALs 1 (2000).

2. See TABER'S CYCLOPEDIC MEDICAL DICTIONARY

1557 (17th ed. 1993) (defining polypharmacy as"the excessive use of drugs, overdose of a drug orprescribing many drugs to be given at one time")[hereinafter TABER'S].

ARTICLE The Legal Aspects of Chemical Restraint Use in Nursing Homes

3. See Kathryn L. Locatell, Physician Liability Issuesin NURSING HOME LITIGATION: INVESTIGATION AND

CASE PREPARATION 77, 91 (Patricia W. Iyer ed.,1999) (citing R.J. Ackerman & G.B. von Bremen,Reducing Polypharmacy in the Nursing Home: AnActivist Approach, 8 J. AM. BOARD FAM. PRAC.195, 205 (May-June 1995)).

4. Id. at 91.

5. Draft Surveyor's Guidance interpreting 42 C.F.R.§ 483.13(a) (Dec. 1999) (requesting comments todraft language by Jan. 31, 2000).

6. See Surveyor's Guidance interpreting 42 C.F.R.§ 483.13(a) (June 1995) (defining chemicalrestraint as "a psychopharmacologic drug that isused for discipline or convenience and not requiredto treat medical symptoms").

7. Id.

8. Id.

9. See TABER'S, supra note 2, at 1632 (defining psy-chotropic drugs and listing psychotherapeuticdrugs and agents).

10. See Levine, supra note 1, at 44; see generally R.Monks & Harold Merskey, Psychotropic Drugs inTEXTBOOK OF PAIN (Patrick D. Wall & RonaldMelzack eds., 3d ed. 1994); Sharon L. Jones,Pharmacology of Pain Management in EXPERT PAINMANAGEMENT 31, 63-64 (1997) (discussing phar-macologic agents).

11. See Charlene Harrington et al., Psychotropic DrugUse in Long-term Care Facilities: A Review of theLiterature, 32 GERONTOLOGIST 822, 822-833(1992) (reviewing psychotropic drug use in nursinghomes from 1978 to 1990).

12. See Prescription Drug Use in Nursing Homes-Report 2: An Inside View By ConsultantPharmacists (Nov. 1997) (OEI-06-96-00081) (find-ing nursing home residents experience adversereactions as a result of potentially inappropriateprescribing and inadequate administration or mon-itoring of medications).

13. See Surveyor's Guidance at 123.3 (Rev. July 10,1999) (citing Mark H. Beers, Explicit Criteria forDetermining Inappropriate Medication Use by theElderly, 157 ARCHIVES INTERNAL MED. 1531(1997)).

14. See Levine, supra note 1, at 18-19 (reviewing sideeffects of psychotropic medication); see also SarahGreene Burger, AVOIDING DRUGS USED AS CHEMICAL

RESTRAINTS: NEW STANDARDS IN CARE 41, 41-52(1994) (relating side effects for antipsychotic, seda-tive/hypnotics, anxiolytic, and antidepressant med-ications). Obtain copies from the NationalCitizens' Coalition for Nursing Home Reform,1224 M Street, N.W., Suite 301, Washington, D.C.20005; telephone (202) 393-2018.

15. REIN TIDEIKSAAR, FALLS IN OLDER PERSONS:

PREVENTION AND MANAGEMENT IN HOSPITALS AND

NURSING HOMES 30 (1993).

16. See id.

17. See generally, Purushottam B. Thapa et al.,Antidepressants and the Risk of Falls amongNursing Home Residents, 339 NEW ENG. J. MED.875, 875-920 (1998); Purushottam B. Thapa etal., Psychotropic Drugs and Risk of RecurrentFalls in Ambulatory Nursing Home Residents, 142AM. J. EPIDEMIOLOGY 202, 202-211 (1995); WayneA. Ray, Psychoactive Drug Use and the Risk ofHip Fractures, 316 NEw ENG. J. MED. 363,363-369 (1987).

18. See TABER'S, supra note 2, at 951 and 1571 (defin-ing orthostatic hypotension and postural hypoten-sion respectively).

19. Id. at 119.

20. See Levine, supra note 1, at 18.

21. See TABER'S, supra note 2, at 59.

22. Id.

23. Id. at 595.

24. Id. at 1439 (defining Parkinson's disease); see alsoSusan C. Kalish et al., Antipsychotic PrescribingPatterns and the Treatment of ExtrapyramidalSymptoms in Older People, 43 J. AM. GERIATRICSSoC'Y 967, 967-973 (1995) (noting that someantipsychotic medications can result in symptomsof Parkinson's disease and that these symptomshave been shown to increase fall risk and warrantimmediate discontinuation of the medication);Levine, supra note 1, at 18.

25. See TABER'S, supra note 2, at 590-591 (comment-ing that tardive dyskinesia is an "undesirable effectof therapy with certain psychotropic drugs").

30 Elder's Advisor

26. See Levine, supra note 1, at 18.

27. See Marshall B. Kapp, State of the Law: NursingHomes, 18 L. MED. & HEALTH CARE 282, 282(1990).

28. See Pub. L. No. 100-203, §§ 4201-4218, 101 Stat.1330, 160-22; see also 56 Fed. Reg. 48,826 (1991).

29. See 42 U.S.C. § 1395i-3 (applying to any facilitythat accepts Medicare reimbursement); 42 U.S.C.§ 1396r (applying to any facility that acceptsMedicaid reimbursement).

30. See, e.g., 63 Fed. Reg. 337 (Medicare applicationrequiring health care provider to certify that theprovider is "familiar with and agree[s] to abide bythe Medicare or other federal health care programlaws and regulations that apply to myprovider/supplier type").

31. See 42 C.ER. §§ 483.5 to 483.75.

32. 42 U.S.C. SS1395i-3(c)(1)(A)(ii), 1396r(c)(1)(A)(ii);see also 42 C.ER. § 483.13(a) (using similar lan-guage); H.R. Rep. No. 100-391(I) at 458 (1987),reprinted in 1987 U.S.C.C.A.N. 2313-1, 2313-278("psychotropic drugs are being used to manage res-idents for the convenience of nursing facility staffsin a manner that is wholly inconsistent with highquality care or an adequate quality of life").

33. 42 U.S.C. § 1395i-3(c)(1)(A)(ii),1396r(c)(1)(A)(ii); 42 C.F.R. § 483.13(a).

34. 42 U.S.C. S§ 1395i-3(b)(2), 1396r(b)(2); 42 C.F.R.§ 483.25.

35. See Draft Surveyor's Guidance interpreting 42C.F.R. §483.13 (Dec. 1999).

36. See 42 C.F.R. § 483.20(k)(2)(ii).

37. See 42 C.F.R. §S 483.10(b)(4), 483.20(d)(2)(ii).

38. See Steven Zlotnik, Pharmacology and the Elderly,in NURSING HOME INVESTIGATION AND CASE

PREPARATION 251, 256 (Patricia W Iyer ed., 1999).

39. See 42 C.F.R. § 483.25(f) (noting that facility mustbe prepared to deal with resident mental and psy-chosocial behavioral problems).

40. See 42 C.F.R. § 483.10(a)(3)-(4); Draft Surveyor'sGuidance interpreting 42 C.F.R. § 483.13 (Dec.1999).

41. See Draft Surveyor's Guidance interpreting 42C.F.R. § 483.13 (Dec. 1999).

42. See 42 U.S.C. S§ 1395i-3(c)(1)(E), 1396r(c)(1)(E);42 C.ER. §§ 483.10(b)(4), 483.10(b)(8).

43. 42 U.S.C. §§ 1395i-3(c)(1)(A)(ii),1396r(c)(l)(A)(ii).

44. See 42 U.S.C. §§ 1395i-3(c)(1)(A)(i),1396r(c)(1)(A)(i); Draft Surveyor's Guidance inter-preting 42 C.F.R. § 483.13 (Dec. 1999).

45. 42 C.ER. S 483.25(l)(1).

46. Surveyor's Guidance interpreting 42 C.F.R.§ 483.25(l)(1) (July 1999).

47. See 42 C.ER. § 483.25(l)(1).

48. See Surveyors' Guidance interpreting 42 C.F.R. §483.25(l)(1) (June 1995).

49. See Patricia W. Iyer, Nursing Home LiabilityIssues, in NURSING HOME INVESTIGATION AND CASE

PREPARATION 151, 186 (Patricia W. Iyer ed., 1999)(citing Lewis Laska, Elderly Manic DepressivePatient Given Excessive Doses of Lithium forThree Weeks, MED. MALPRACTICE VERDICTS

SETTLEMENTS & EXPERTS 39 (Oct. 1996)).

50. See id.

51. See Draft Surveyor's Guidance interpreting 42C.F.R. § 483.13(a) (Dec. 1999).

52. Surveyor's Guidance interpreting 42 C.F.R.§ 483.25(l)(2)(ii) (June 1995); accord 42 C.F.R. §483.25(1)(2)(ii).

53. See Surveyor's Guidance interpreting 42 C.ER§ 483.25(l)(1) (June 1995).

54. See Surveyor's Guidance interpreting 42 C.ER§ 483.25(l)(1) (July 1999).

55. See Surveyor's Guidance interpreting 42 C.F.R.§ 483.25(l)(1) and (2)(ii) (July 1999).

56. See generally Eugenia L. Siegler et al., Effect of aRestraint Reduction Intervention and OBRA '87Regulations on Psychoactive Drug Use in NursingHomes, 45 J. AM. GERIATRICS Soc'y 791, 791-796(July 1997) (documenting the significant reductionof psychoactive drug use in nursing homespost-OBRA); Ronald I. Schror et al., Changes in

ARTICLE The Legal Aspects of Chemical Restraint Use in Nursing Homes 31

Antipsychotic Drug Use in Nursing Homes duringImplementation of the OBRA '87 Regulations, 271J. AM. MED. ASS'N 358, 358-362 (1994); Robert L.Kane et al., Restraining Restraints: Changes in aStandard of Care, 14 ANN. REV. PUB. HEALTH 545,545-584 (1993) (finding that the Nursing HomeReform Law has reduced the use of psychotropicmedications by up to one-third).

57. See, e.g., Siegler et al., supra note 56.

58. See generally Maria D. Llorente et al., Use ofAntipsychotic Drugs in Nursing Homes: CurrentCompliance with OBRA Regulations, 46 J. AM.GERIATRICS SOC'Y 198, 198-201 (Feb. 1998)(examining the degree and patterns of compliancewith OBRA '87 regulations regarding the use ofantipsychotic drugs in nursing homes).

59. See, e.g., SARAH BURGER ET AL., NURSING HOMES:

GETTING GOOD CARE THERE 84, 84-86 (1996)(noting the improper use of chemical restraints).

60. See State Actions, 23 MENTAL & PHYSICAL

DISABILITY L. REP. 437, 437 (May/June 1999).

61. See Id.

62. See id.

63. N.Y. COMP. CODES R. & REGS. tit. 10, §§ 415.4(a)(1999) (covering physical restraints) and 415.12(1)(covering psychotropic drugs); see generally,Margaret M. Flint, Nursing Homes, 266PRACTISING L. INST. 559 (1998) (consideringrestraint use in New York nursing homes).

64. See Bd. of Directors of the Am. Ass'n for GeriatricPsychiatry, Clinical Practice Committee of the Am.Geriatrics Soc'y, and Committee on Long-Term

Care and Treatment for the Elderly, Am.Psychiatric Ass'n., Psychotherapeutic Medicationsin the Nursing Home, 40 J. AM. GERIATRICS SOC'Y

946, 949 (Sept. 1992).

65. Id. at 946.

66. See Robin Elizabeth Margolis, Healthtrends, 9HEALTHSPAN 28, 28 (Apr. 1992).

67. See, e.g., Standards TX.8, TX.8.1 and RI.2.6,Comprehensive Accreditation Manual for Long-term Care, JOINT COMM'N ON ACCREDITATION OF

HEALTHCARE ORG. (1998-1999).

68. See id.

69. See MARSHALL B. KAPP, GERIATRICS AND THE LAW:

PATIENT AND PROFESSIONAL RESPONSIBILITIES 163(2d ed. 1992).

70. See Levine, supra note 1, at 12-13.

71. See also RUBIN BRESSLER & MICHAEL D. KATZ,

GERIATRIC PHARMACOLOGY (Rubin Bressler et al.,eds. 1993).

72. See 42 C.ER. 5 483.75(l)(5).

73. See AM. SoC'Y CONSULTANT PHARMACISTS,

PRESCRIPTION DRUG USE IN NURSING HOMES--

REPORT 3: A PHARMACEUTICAL REVIEW AND

INSPECTION RECOMMENDATION, Appendix E at 1, 6(Nov. 1997) (OEI-06-96-00082).

74. See id. at 16, 18.

75. See id. at 26.

76. See id. at 30.