Officials Agree to New Rules on Nursing Home Restraints

California health officials tentatively agreed Thursday to adopt new proposed state regulations requiring nursing homes to get permission from patients before tying them up, drugging them, inserting tubes or giving other medical care.

The agreement, which settles a private lawsuit against the state Department of Health Services, bestows upon patients or their relatives the same powers of consent that all other Californians now enjoy--including prisoners and the mentally ill, attorneys said.

The settlement of the 2-year-old lawsuit comes on the heels of a recent state study which revealed that more than 80,000 patients are chemically or physically restrained without their consent in California nursing homes on any given day.

The agreement was announced the day before consumer groups go to federal district court in Sacramento charging that state health officials have failed to fully implement a new wide-ranging federal law. The National Senior Citizens Law Center and other groups are seeking a court order requiring the state to implement the reforms, which give nursing home patients a stronger voice in their care, require facilities to more fully document treatment and specify how inspectors should check to see if the new standards are being met.

The controversy sparked by the debate over implementation of the federal law was part of “the impetus” to endorse the new proposed state guidelines, said Deputy Atty. Gen. Harlan Van Wye.

On Thursday, state officials tentatively accepted new regulations that would “go farther than any other state or any federal law” in giving nursing home patients control over their care, said Pat McGinnis, an official with the California Advocates for Nursing Home Reform, which brought the lawsuit. The proposed regulations are being published and will be the subject of a public hearing in June. They will be enacted as law, assuming that they are not challenged.

The regulations expressly forbid nursing home staff and doctors to perform anything other than “simple and common procedures” without first obtaining the consent of the patient.

If the patient lacks “the capacity to understand” the nature or consequences of treatment, then the proposed regulations require staff to consult the patient’s relatives or legal representative.

However, the regulations do not resolve “the ethical and legal dilemma” posed by those patients who cannot make decisions for themselves and have no kin or representative, according to Mort Cohen, law professor at Golden Gate University’s Constitutional Law Clinic, which represented the plaintiffs.

Except in emergencies, staff must seek informed consent, or permission, before inserting feeding tubes, applying physical restraints like harnesses or seat belts, or giving psychotherapeutic--mind-altering--drugs.

The new federal law similarly aims to reduce physical and chemical restraints in nursing homes by forbidding their use for discipline or convenience.

Initially, the federal guidelines required patients to give their informed consent before restraints could be applied. But after complaints from California officials, this provision was struck from the federal law.

Elisabeth Brandt, chief counsel to the state Department of Health Services, said that state officials have never opposed the idea of giving nursing home patients the right of informed consent, but that the federal law was the wrong vehicle for accomplishing this.

She added that violations of the regulations would be punishable by fines ranging from a couple of hundred dollars to as much as $10,000, depending upon the circumstances.