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Nursing homes can no longer require arbitration to settle cases

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Elderly and disabled people can face potential dangers even in well-run nursing homes and other long-term care facilities. Aside from accidents that involve slips and falls, they may receive the wrong medication or even be attacked or harmed by fellow residents. Of course, poorly-run or understaffed facilities have been found guilty of neglect and abuse -- sometimes resulting in death.

It's often difficult for victims and family members who seek to take legal action against the facility. Many contracts that people sign when entering or placing a loved one in these facilities include arbitration clauses that prohibit victims from taking them to court.

That's going to change next month. The Centers for Medicare and Medicaid Services has issued a new rule that will forbid mandatory arbitration clauses from being included in nursing home contracts effective Nov. 28. It's part of a larger policy overhaul that seeks to protect nursing home residents.

The rule won't be retroactive. That means that if you signed a contract prior to that date that requires arbitration, you are bound by that. However, as one consumer rights attorney notes, the new rule represents "a tremendous advance in helping ensure effective protections for nursing home residents."

These facilities have cited the high costs of going to court as a key reason for these clauses. Needless to say, they're not happy about the policy. The head of the American Health Care Association said that the ban on mandatory arbitration "clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety."

However, those in favor of the new policy argue that it helps protect people who are often signing these contracts at one of the most vulnerable points in their lives. Too often, they don't realize they're giving up their right to take the appropriate legal action to hold facilities and employees responsible for their actions and negligence that result in harm or worse.

Of course, victims and family members may still prefer to settle a matter involving injury, abuse or neglect via arbitration. A Maryland attorney can provide advice and guidance. Each state also has a long-term care ombudsman who can assist with such issues.

Even with the new rule, it's essential to read any long-term care contract carefully and perhaps have your attorney review it before you sign it. That can help save you from unpleasant and costly surprises later.

Source: Consumer Reports, "Moving Into a Nursing Home? You Will Soon Have More Rights," Aimee Picchi, accessed Oct. 27, 2016

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