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New rule makes it easier to sue nursing homes for malpractice

All too often in the past, issues of elder abuse, neglect and even wrongful death were kept from the public view. By using arbitration, nursing homes were able to settle cases with residents and their families in a more private arena, away from the courts.

This will soon change for care facilities that receive federal funding, such as Medicare and Medicaid. On September 28, the Centers for Medicare and Medicaid Services, an agency under Health and Human Services, ruled that nursing homes requiring residents to resolve any disputes in arbitration instead of the court will be barred from funding. This rule will affect about 1.5 million residents in nursing homes across the United States.

Although it is true that arbitration allows for a lower-cost legal option within the nursing home industry, it creates opportunities to keep safety and quality issues a secret from the public. Additionally, it denies residents and their families their right to obtain justice through a courtroom trial.

According to a recent New York Times article, the ruling resulted from the urging of officials in 16 states and the District of Columbia. They argued "that arbitration kept patterns of wrongdoing hidden from prospective residents and their families."

Opponents of this ruling feel that it exceeds the agency's statutory authority. In a statement, Mark Parkinson, the president and chief executive of the American Health Care Association, says the rule is "wholly unnecessary to protect residents' health and safety."

Unless the ruling is challenged in court, it will go into effect by November and apply to all future patient admissions. 

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