Informed consent provisions strong in only 7 states, group says

Only seven states have strong informed consent provisions ensuring the rights of nursing home residents, according to a new analysis released by the Long Term Care Community Coalition (LTCCC).

The report, “Informed Consent Rights in U.S. Nursing Homes: An Overview of State and Federal Requirements,” provides information about state laws and regulations, federal requirements related to experimental research and an unsuccessful 2012 federal bill that specified protocols for providers prescribing antipsychotic drugs to people with dementia. Only Alaska, California, Illinois, Iowa, Nevada, Washington and Wisconsin have informed consent provisions characterized as “strong” by the LTCCC; provisions in the remaining states are “weak” or nonexistent.

“Given the need for clarity regarding residents’ rights to provide informed consent (or rejection) of medication and other treatment, LTCCC undertook this study to identify current state laws and rules,” the nonprofit organization said in a press release announcing the document. “This report provides stakeholders — including residents, providers, advocates, policymakers and regulators — with information on how each state approaches this issue. The report can be used to identify what explicit protections exist for residents in each state and to review the requirements of other states to shape better policies and procedures.”

Federal requirements protect residents’ rights to be fully informed of, and participate in, their care planning, including the acceptance or refusal of treatment, according to the LTCCC. Facilities do not always interpret the requirements as mandating informed consent, however, the LTCCC says, so nursing home residents (and their families and representatives when residents are not able to make decisions for themselves) sometimes are not given the chance to provide informed consent related to healthcare decisions affecting them.

“This is one reason why the use of powerful and dangerous antipsychotic medications is a pervasive problem in nursing homes across the country,” the LTCCC maintains, adding that a July 2012 assessment by the federal Office of Inspector General found that more than 90 percent of the records it reviewed lacked evidence that residents or their families or legal representatives were included in the care-planning process. All of the cases involved residents to whom antipsychotic drugs were administered.

In addition to detailing state provisions and federal research-related requirements, the new LTCCC report provides language from the Improving Dementia Care Treatment in Older Americans Act introduced by Sen. Richard Blumenthal (D-CT), Sen. Chuck Grassley (R-IA) and Sen. Herb Kohl (D-WI) (no longer in office) a year ago. It would have established protocols for healthcare providers to follow when prescribing antipsychotic drugs to those with dementia but did not pass the 112th Congress.

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Lois Bowers

Lois A. Bowers was senior editor of I Advance Senior Care / Long-Term Living from 2013-2015.