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Proposed change may pave way for lawsuits for nursing home abuse

Abuse in nursing homes is something that Illinois residents and people across the United States would prefer not to think about. It is difficult enough to place a loved one in a facility when their loved one can no longer take care of themselves, and the family does not have ability to provide the level of care their loved one needs at home. When there is a believe that the person has been abused or even suffers nursing home death, it can be overwhelming. A legal filing is frequently considered to receive compensation for what happened, but arbitration was an obstacle that prevented many from pursuing a claim. However, the regulatory agency within the Health and Human Services Department has taken steps to change that.

The new rule will mandate that a nursing facility that gets funding from the U.S. government will be required to eliminate the rule that limits the resolution of a complaint for abuse or death to arbitration, thereby allowing a person's case to be brought to court. The nursing homes generally have fine print in their contracts with residents and their families that arbitration is used in lieu of court when there is a complaint that would otherwise be eligible for a lawsuit. The idea was to reduce costs for the facilities, but it also prevented families with legitimate cases from pursuing them.

As expected, the nursing home industry has resisted this change, claiming that arbitration is cheaper than court and the need for these facilities to shield themselves could result in higher costs filtering down to insurers, patients and their families. According to the government, the process of arbitration allows nursing homes to cover up incidents that would otherwise become public knowledge as a result of a court case. With fine print in contracts, many residents and families are unaware that they will have little legal recourse to file a claim if anything goes awry.

Several cases in which arbitration has protected facilities for incidents were cited and the idea behind the elimination of this option is based on protecting patients by allowing them to take a case to court and hold the facilities accountable for what happens to patients. Those who believe that a family member has been subjected to neglect, sexual harassment, nursing home abuse or death need to know all the different rules when considering a lawsuit.

Source: 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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