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Reversing Obama’s “no sue” nursing home rule could spell trouble

New Yorkers who have tried to board a loved one at a nursing home before may be familiar with “no sue” agreements. These require family members, the future resident or both parties to formally agree not to sue in the event of nursing home abuse, neglect or other allegations of mistreatment. People who refuse to sign are then turned away from the facilities.

Forbes notes that in 2016, the Obama administration put an end to this practice for nursing homes that relied on Medicare or Medicaid. Facilities that received funds from these sources were banned from presenting families with “no sue” agreements.

However, the Trump administration has now made several attempts to overturn this. The move was reportedly prompted by a lawsuit filed by the American Health Care Association against the Department of Health and Human Services and the Centers for Medicare and Medicaid Services. The AHCA resented their attempts to enforce the ruling.

Supporters of overturning the rule argue that if people sue nursing homes, the cost of long-term care may go up. Critics of overturning the ban point out that without the ban on “no sue” agreements, nursing homes can get away with mistreatment at a time when the abuse and neglect of the elderly and others in long-term care is being exposed.

CNN cited a 2019 report from DHHS stating that that one in five visits to the ER from a nursing home is caused by abuse. Another cited report showed that many instances of nursing home abuse go unreported. The nursing homes also often failed to report the incidents to local law enforcements or CMS. What is worse is that in many of these instances, the facility had a legal obligation to report the incident. Yet another report indicated that 89% of injuries between January 2015 and June 2017 showed evidence of possible neglect or abuse.

If the victims or their families cannot seek legal recourse, what are the available reparations in these instances? Sometimes the offer provided by nursing home facilities is third-party arbitration. However, many families and nursing home residents remain wary of any changes that reduce their ability to protect aging parents and grandparents.

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