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New federal rule may better protect against nursing home abuse

Nursing homes and assisted living facilities serve an important purpose, providing elderly or less functional individuals with a flexible support system. While residents are able to assert their independence, trained health and other types of professionals are usually on call.

When such facilities violated the standard of care owed to their residents, however, holding them accountable used to be an uphill battle. The difficulty was contractual: Facilities often required their residents to sign an arbitration clause in their admission contracts. This type of clause effectively waived a resident's right to bring a lawsuit against the facility in court.

Admittedly, arbitration can save time and money in certain situations. Instead of filing in a court, parties that have agreed to arbitration use neutral third party, who functions as the arbitrator and issues a decision after hearing both sides. In binding arbitration, the parties have agreed to accept the arbitrator’s decision as final. The outcome of arbitration may also be confidential, and the absence of a court-issued judgment means that no precedent is added to the body of civil jurisprudence.

Yet in areas of society where there may be a pattern of injustice, such as inadequate staffing or poor training in the nursing home industry, the lack of a precedent may allow civil rights abuses to continue. Officials at the U.S. Health and Human Services Department apparently share this view, as an agency within the HHS recently issued a rule banning arbitration clauses in facilities that receive federal Medicare or other types of federal funds. An estimated 1.5 residents of nursing homes across the country could benefit from this new provision.

If you suspect a loved one is not receiving the care that he or she deserves from a nursing home, it is important to consult with an attorney that focuses on this area of the law. Our law firm has the experience to investigate the quality of care your loved one is receiving. If that care is negligent, we can advise you of your legal options, including whether a nursing abuse lawsuit might be viable.

Source: The New York Times, “U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes,” Jessica Silver-Greenberg and Michael Corkery, Sept. 28, 2016

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