A landmark decision by the Centers for Medicare & Medicaid Services, a division of the U.S. Department of Health and Human Services, guarantees nursing home residents and their families their right to sue long-term care facilities despite forced arbitration clauses. The agency is directly responsible for Medicare and Medicaid funding. It now prevents these facilities from forcing residents to pursue elder abuse and wrongful death claims via arbitration. This rule extends protections to over 1.5 million residents in nursing homes that receive federal funding, which includes most facilities.

The Problem with Forced Arbitration

Thanks to this new rule, all nursing homes that receive any kind of federal funding are barred from forcing their residents into mandatory arbitration. Arbitration is a dispute resolution method in which two parties agree to resolve a dispute outside of court. When arbitration is forced, it typically leaves the consumer at a severe disadvantage. Throughout the years, such clauses have shielded disputes from the public eye, including serious issues regarding safety and care in nursing home facilities.

In the past, the courts have grudgingly turned away cases of extreme circumstances because the residents had signed a forced arbitration clause. These clauses are often hidden in the contracts residents are required to sign to acquire services; an increasing number of consumers are forced to choose between receiving medical care and their constitutional right to sue for damages. Due to these predatory arbitration clauses, victims of horrible abuse, neglect, and even murder have not been able to receive justice.

Arbitration ensures that your case will never be discovered by the public. Even if you suffered unimaginable levels of abuse at the hand of the care facility, prospective residents will never know your pain. They will also never know what they are likely to receive should they suffer a similar grievance.

old woman at nursing homeThe Case of the 100-Year-Old Murder Victim

Senior resident Elizabeth Barrow was found dead with a plastic bag around her head in a Massachusetts nursing home in 2009. It was discovered that it was her 97-year-old roommate’s doing. Laura Lundquist, diagnosed with dementia, believed that Barrow was going to “take over the room.” Despite her mental state, Lundquist was still charged with second-degree murder. At 102, she was the oldest murder defendant in Massachusetts’s history in 2014. Barrow’s son, Scott, said he never wished for her to be prosecuted. He simply wanted to move forward with the wrongful death lawsuit he filed against the nursing home after the arbitrator found no negligence and ruled in the nursing home’s favor.

All too often, arbitrators side with the defendant; after all, it is the defendant who is paying their salaries. Cases like these are what motivated officials in several states and D.C. to urge the government to cut nursing homes off from federal funds if they force their residents to submit to arbitration clauses.

Nursing Homes Fight Back

While arbitration is commonly portrayed as an inexpensive alternative to dispute resolution, this usually rings true only for the companies and businesses that force their customers into it. Many nursing homes are pushing back against the new rule fearing that it will drive up the costs of operation and force some facilities to shut down.

On the flip side, some government officials and elder care attorneys believe arbitration has the ability to keep ill treatment hidden from the public. At its worst, forced arbitration has the potential to protect systemic wrongdoing and keeps future residents in the dark about negligent and abusive practices.

Right here in Oregon there is very little reliable data to determine which long term care facilities have a clean record. Abuse reports are often omitted by the state’s taxpayer-funded website that helps Oregonians research facilities. If you or a family member has been the victim of abuse, whether from negligence, sexual abuse, or wrongful death in an Oregon nursing home, contact attorney Richard Rizk to discuss your claim for free. Call (503) 245-5677 or contact info@rizklaw.com.