Long Term Care & Nursing Home Litigation - 2/9/2016

CMS Releases New Data on Anti-Psychotic Use in Nursing Homes-- What Are Your Numbers?

CMS recently released new data on the prevalence of the use of anti-psychotic medications in America's nursing homes.  In 2011, CMS began an initiative to reduce the use of anti-psychotics.  When the initiative began, the national average of long-stay residents receiving anti-psychotics was 23.9%.  The latest statistics, which are for the third quarter of 2015, show that this has been reduced to 17.4%.  During the same period, the percentage of Alabama long-stay residents receiving anti-psychotics fell from 27.4% to 20.10%.  Alabama is currently ranked 45th in the anti-psychotic initiative.  That means that, in the eyes of CMS, 44 states are doing better than Alabama.
We can expect that CMS will put pressure on the Alabama survey agency to more closely scrutinize the use of anti-psychotics in nursing homes.  This means that facilities with a high percentage of residents receiving anti-psychotics will have more of those residents put on the survey sample, and surveyors will be closely checking to determine if anti-psychotic use is appropriate.  If your usage rate on Nursing Home Compare for long-stay residents is significantly higher than the state average of 20.10%, there is a good chance you will receive extra scrutiny during your next survey.  This past November, CMS released special tools for surveyors visiting those facilities that will receive extra attention in the area of dementia care and anti-psychotic use.  We attach a copy of those tools.     
CMS released a list last week showing the use of anti-psychotics in each nursing home in the U.S.  There is a separate spread sheet page for each state. Survey agencies can easily use this list to target nursing homes with high anti-psychotic rates. Similar data are published on the CMS Nursing Home Compare Website, but this spread sheet shows only anti-psychotic use, and facilities are ranked from highest use to lowest use in each state. 
What should I do if my facility has a high usage rate?
You will want to put yourself in a position to answer surveyors' questions about why your numbers are so high. Use the attached survey tools yourself to be prepared for surveyor questions. Ensure that all residents receiving anti-psychotics are being given gradual dose reduction trials. Look especially at residents with dementia who are being given anti-psychotics for behaviors.  This is an off-label use of those medications, meaning they have not been approved by the FDA for this use  --  Four major pharmaceutical manufacturers have each paid hundreds of millions of dollars in fines to the FDA for marketing these medications to nursing homes to help control behaviors of residents with dementia!  Have you exhausted non-medication interventions before placing these residents on anti-psychotics?  Are these efforts well-documented?  Also, be aware the PRN anti-psychotics are particularly disfavored because most anti-psychotics take a number of days to achieve a therapeutic effect.  If PRN anti-psychotics are thought to be effective by your staff or attending physicians, it may be because the medication is having a sedative effect. 
We recommend that facilities with high usage rates develop a quality assurance project to examine the reasons those numbers are high, and to devise strategies to reduce them if possible.  This should certainly involve your medical director.  Starnes Davis Florie attorneys Rick Harris, Reed Bates, Stephen Still, and Alicia Harrison have access to a host of materials designed to help facilities reduce anti-psychotic usage.  We will be happy to share these materials with any of our clients and friends.