Health Care

Over-sedation a crisis at nursing homes. Kansas legislation won't help, groups say

Kansas ranks as one of the worst states for the overuse of anti-psychotic drugs to sedate nursing home residents.

But new regulations on the practice faced stiff opposition during a hearing Tuesday in Topeka from groups that represent the state’s doctors, hospitals and skilled nursing facilities.

Kansas House Bill 2704 would require nursing facilities to get informed consent paperwork signed by residents or guardians before giving the medications, which are not indicated for treating dementia.

But Rachel Monger, a lobbyist for LeadingAge Kansas, told legislators that “it would be by far the broadest and most restrictive law on anti-psychotics in the country” and penalize nursing homes for funding and staffing shortages that are outside of their control.

“What this will really do is offer more penalties and lawsuits,” said Monger, whose group represents faith-based and non-profit nursing facilities. “That’s what providers are scared of.”

Monger also said the federal government recently enacted similar informed consent rules that will be better suited to the goal of reducing improper anti-psychotic use.

But the federal government has said it will not impose penalties for the next 18 months.

Mitzi McFatrich, the executive director of Kansas Advocates for Better Care, said that’s one reason her group has been pushing for state laws to protect nursing home residents.

“We have people who are currently in harm's way,” said McFatrich, who believes the federal regulations are not adequate.

Monger said the industry has made progress in reducing anti-psychotic use, but it’s been hampered by cuts to Medicaid and long-running problems with the state’s Medicaid eligibility determination system.

Medicaid covers about half of Kansans in nursing homes.

“The drivers behind anti-psychotic use are funding, workforce and training,” Monger said. “We've done the training... (but) we don’t have a lot of control over the funding and the workforce, and it is a serious problem.”

Anti-psychotics are contraindicated for people with dementia and include a U.S. Food and Drug Administration warning that they increase the risk of falls, stroke and other potentially fatal side effects.

The federal government started tracking the off-label use of such medications in nursing homes in 2011. Since then, Kansas has always ranked at or near the top in percentage of medicated residents, suggesting there are thousands of residents in the state’s certified nursing facilities who have been given drugs that aren’t medically indicated for them and could actually harm them.

Kansas also leads the nation in percentage of skilled nursing facilities cited by the federal government for a broad slate of medication-related violations, some of which relate to anti-psychotic use. The state was highlighted in a Human Rights Watch report last month.

Still, the proposed changes to Kansas law face a difficult road to passage with the Kansas Hospital Association and the Kansas Medical Society, which represents doctors, also in opposition.

Rachelle Columbo, a lobbyist for the medical society, said doctors support informed consent as a general rule.

But she called the use of anti-psychotics in nursing homes a “complex problem” that would be better addressed through conversations that include nursing homes’ physician medical directors rather than new regulations and penalties.

Chad Austin, a lobbyist for the hospital association, said it wasn’t clear whether the bill would apply to hospitals that treat nursing home residents. If it does, he said, it should explicitly say that an exemption that allows for the use of anti-psychotics in emergency situations also applies to hospitals.

That exemption proved controversial for some who support the bill as well.

Rocky Nichols, the executive director of the Kansas Disability Rights Center, said it was too broad and he feared nursing homes would abuse it.

“We do think there needs to be some reasonable limit put on that so it’s not just a crutch to get around these (informed consent) regulations,” Nichols said.

Nichols’ group also wanted the bill changed so it would apply to nine nursing facilities in Kansas that cater specifically to mental health patients.

Kansas Rep. Linda Gallagher, a Republican from Lenexa who introduced the bill, asked Nichols why, given that people who live in those facilities are more likely to have a diagnosis that would justify the use of anti-psychotics.

Nichols said some people in those facilities have both a mental health diagnosis and dementia and they shouldn’t be “second-class citizens” when it comes to their rights to refuse medication.

Despite the opposition from the medical lobby and division within the ranks of the bill’s supporters, McFatrich said she’s not giving up on getting it passed this session.

“I’m always hopeful,” said McFatrich, whose group represents nursing home residents and their families. “We will not stop advocating on this issue because it’s just too important and the impact is just too great.”