Daily Briefing

Nursing homes are mostly barred from using 'chemical restraints.' But some may be skirting the rules.

Antipsychotic drugs are dangerous for dementia patients, almost doubling their risk of death, but a New York Times investigation found that some understaffed nursing homes may use the drugs to subdue patients—and then skirt disclosure requirements by falsely diagnosing the patients with schizophrenia.

The long controversy around antipsychotic drugs in nursing homes

In 1987, a law signed by President Ronald Reagan banned the use of drugs in nursing homes that served the interest of staff rather than the patient, except "to ensure the physical safety of the resident or other residents."

However, antipsychotic drugs like Seroquel, Zyprexa, and Abilify were used frequently in the early 2000s on dementia patients, despite the fact these drugs make older patients drowsier, more likely to fall, and nearly double dementia patients' risk of death, the Times reports.

Taking care of dementia patients is a difficult task, even more so for nursing homes that are understaffed—which is common in the United States and has intensified during the pandemic. Nursing home employment dropped by more than 200,000 since early last year, hitting a 27-year low, the Times reports.

Research has found that the more understaffed a nursing home is, the more it uses antipsychotic drugs, suggesting some nursing homes are using the drugs "to subdue patients and avoid having to hire extra staff," the Times reports.

A suspicious spike in schizophrenia diagnoses

In 2012, CMS began requiring nursing homes to report antipsychotic drug use data, which then became part of each nursing home's "quality of resident care" score that contributes to a facility's CMS star rating.

However, nursing homes were not required to report antipsychotic prescriptions for patients who had any of three conditions: schizophrenia, Tourette's syndrome, and Huntington's disease, the Times reports.

Since then, Medicare data shows, the share of nursing home residents diagnosed with schizophrenia has risen 70%. And today, one in nine nursing home residents have been diagnosed with the disease, despite the condition affecting just around one in 150 people in the general population, the Times reports.

Schizophrenia is also generally diagnosed before the age of 40, the Times reports. "People don't just wake up with schizophrenia when they are elderly," Michael Wasserman, a geriatrician and former nursing home executive, said. "It's used to skirt the rules."

In May, a report from a federal oversight agency found that almost a third of long-term nursing home residents with a schizophrenia diagnosis in 2018 didn't have any Medicare record of being treated for the disease.

And another May report from HHS's inspector general found 52 nursing homes where at least 20% of residents had an unsupported diagnosis, more than half of which had received at least a four-star rating from CMS.

Since Medicare doesn't require nursing homes to report antipsychotic prescriptions for schizophrenia patients, the data posted online by Medicare shows an undercount of patients using the medications, the Times said.

Medicare's website says fewer than 15% of nursing home residents are on antipsychotic medications, but this figure excludes patients with schizophrenia diagnoses. Data obtained by the Times from a different Medicare site and an open records request from a patient advocacy group that included these patients found that at least 21% of nursing home residents are on antipsychotic medications.

What happens to facilities that misuse schizophrenia diagnoses?

Facilities are rarely punished for these diagnoses either, the Times found. An analysis of government inspection reports by the Times found 5,600 cases of inspectors saying nursing homes were misusing antipsychotic medications. In response, officials at the nursing homes said the drugs were being used for a variety of reasons, from "health maintenance" to handling patients who were "whining" or "asking for help," the Times found.

In all, over 99% of cases resulted in the inspector concluding the violations only represented "potential" rather than "actual" harm to the patients, meaning the findings were not likely to affect the facilities' star ratings, the Times found.

In response to the Times' investigation, Catherine Howden, a spokesperson for CMS, said the agency is "concerned about this practice as a way to circumvent the protections these regulations afford."

"It is unacceptable for a facility to inappropriately classify a resident's diagnosis to improve their performance measures," Howden said. "We will continue to identify facilities which do so and hold them accountable."

Meanwhile, David Gifford, CMO of the American Health Care Association, which represents for-profit nursing homes, said, "If physicians are improperly diagnosing individuals with serious mental health issues in order to continue an antipsychotic regimen, they should be reported and investigated."

Nursing home industry representatives have also pointed to a decline in the reported use of antipsychotic drugs since the 2012 requirement was enacted—although the Times reports the reported decline is partly offset by the increase in schizophrenia diagnoses and has reversed since the Covid-19 pandemic began.

Nursing homes may be shifting toward other drugs to subdue patients

In response to the federal government's efforts to limit the use of antipsychotic medications in nursing homes, some facilities have turned to Depakote, a medication used to treat epilepsy and bipolar disorder, that can make patients drowsy and increases their fall risk, the Times reports.

"The prescribing is far higher than you would expect based on the actual amount of epilepsy in the population," Donovan Maust, a geriatric psychiatrist at the University of Michigan, said.

Since the government began requiring reporting of antipsychotic drug use, prescriptions of Depakote and other drugs like it have risen. Between 2015 and 2018, the use of such anti-seizure drugs increased 15% among nursing home residents with dementia, according to an analysis prepared by researchers at the University of Michigan for the Times.

At the same time, prescriptions for antipsychotic drugs dropped 16%.

According to a federal whistle-blower lawsuit against Abbott Laboratories, the former manufacturer of Depakote, the drugmaker's representatives told nursing homes Depakote was a way to sidestep the 1987 law preventing drugs being used as "chemical restraints."

The lawsuit claimed Abbott representatives said the drug would "fly under the radar screen" of government regulations, the Times reports.

The lawsuit was settled in 2012 with Abbott agreeing to pay $1.5 billion to resolve allegations against it.

According to Anthony Chicotel, the top lawyer for California Advocates for Nursing Home Reform, around half the complaints they receive involve nursing home residents being inappropriately drugged with Depakote.

Chicotel said one of the appeals of Depakote is that it comes in a "sprinkle" form, making it easy to slip into a patient's food.

"It's a drug that's tailor-made to chemically restrain residents without anybody knowing," he said.

Currently, the government does not require nursing homes to report their use of Depakote or similar drugs, the Times reports.

"It is like an arrow pointing to that class of medications, like 'Use us, use us!'" Maust said. "No one is keeping track of this." (Thomas et. al., New York Times, 9/14)

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