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The deaths of eight Florida nursing home residents during Hurricane Irma bring new attention to a powerful industry serving the vulnerable, and a Trump administration effort to nix a critical safeguard

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AARON MATE: It’s The Real News, I’m Aaron Mate. Florida Police have opened a criminal probe of the deaths of eight nursing home residents during Hurricane Irma. TOMAS SANCHEZ: This is very tragic. It’s very sad. Many of us have loved ones in assisted living facilities and we expect that care to be there for those people. AARON MATE: The Rehabilitation Center at Hollywood Hills didn’t lose power during the storm. But it did lose its air conditioning, leaving residents in sweltering heat. Three of the victims were found dead inside the center, and the rest died after they were evacuated. There are many lingering questions, including why the residents weren’t moved immediately to an air-conditioned hospital that is right across the street. As the investigation unfolds, the center could have one way to avoid accountability. Almost all nursing homes require residents to sign away their right to sue, and instead enter private arbitration. The Obama administration issued a new rule that would make it easier for nursing home residents to bring legal action, but the rule was tied up in court, and now the Trump White House wants to end it for good. Paul Bland is the Executive Director and Senior Attorney at the non-profit law firm, Public Justice. Paul, welcome. PAUL BLAND: Thank you very much for letting me be with you today. AARON MATE: Thank you for joining us. Can you first give us your overall assessment of what happened at this nursing home in Florida? PAUL BLAND: Well, the nursing home has a troubled record. Just within the last year, it had been cited by federal facilities for not having the proper power capabilities and for not having proper backups. Some of the families of the victims have already spoken out to reporters about how they were calling FP&L, they were telling the people of the nursing home that things were going wrong, that their family members were overheated. And that eight people died in a single incident in a nursing home is just extraordinary. This is a huge tragedy. AARON MATE: What does it say overall about the dangers that people in nursing homes face during disasters like Hurricane Irma? PAUL BLAND: Well I mean, there definitely are threats during disasters, and Florida, they do not have nursing homes listed as critical facilities by Florida Power & Light, so in other words, other types of facilitates are considered priorities over nursing homes to come back online when there are power problems, which I think is probably a bad decision by Florida Power & Light. But there’s a lot of problems in nursing homes around the country, just generally. There’s been an enormous amount of concentration in the nursing home industry, so small number of private equity firms have bought up close to a majority of the nursing homes in America, and after that happens, they tend to cut back services fairly significantly. There’s a study that NPR reported where 60% of the time that a nursing home was acquired, that within a short period they cut back staffing enormously. Most of us think that if you’re putting an elderly or a disabled relative into a nursing home, that they’re going to be taken care of. A lot of times, that promise isn’t kept. AARON MATE: What’s particularly striking is that many of these homes, privately run ones, do have public contracts. They house residents who are on Medicare or Medicaid, including I believe this center in Florida. PAUL BLAND: Yeah, that’s right. The vast majority of nursing home residents get some sort of significant help from either Medicare or Medicaid. That’s why the Obama administration’s rule, or the Center for Medicare and Medicaid Services, said you can’t receive Medicare and Medicaid as a nursing home or rehabilitation center if you’re going to use these arbitration clauses that you make people sign before they enter the home. AARON MATE: Right, so President Obama, or his administration, the Center for Medicare and Medicaid Services, said that last year that if you want to receive federal funding for your nursing home, then you cannot have these arbitration clauses. Now President Trump wants to undo that and it’s an issue that’s been brought up by these deaths here. Can you talk more about what this arbitration clause means? PAUL BLAND: So, what the arbitration clauses means is that instead of being able … If something terrible happens to you, whether it’s just medical negligence where people are for example left in the same place where they get bedsores and the bedsores become affected, and a lot of times nursing home residents die from that sort of thing, sometimes they’re really horrible crimes. I’ve handled cases in which nursing home employees raped elderly women or killed people in nursing homes. I mean, there have been some really horrible incidents. Normally what you would think would happen is that if there’s something like this, that the family or the patient would be able to go to court and go in front a jury of regular people and bring their case forward. Instead what the arbitration system does is it takes the case out of court, and it sends it to a private corporate dispute tribunal. The nursing home picks the entity, picks a private arbitration company who’s going to pick who the arbitrator is. What ends up happening is that the companies who are trying to get this work, it’s lucrative work to be an arbitrator. Arbitrators certainly charge $500-600 an hour. They set up systems that are designed to get the nursing homes to pick them and write them into the fine print contracts. So, the vast majority of the time, the arbitrators are people who are usually lawyers who represent other health facilities. So, instead of having your case heard by a jury of 12 people from all walks of life, your case is going to be heard by a single person who’s a lawyer who mostly represents hospitals. If that person ends up ruling for a patient in a significant way, gives a very substantial award, there’s been a lot of evidence over time people who do that get blackballed and they never get to work as arbitrators again. It becomes a closed loop system that’s really unfair. There is some empirical evidence that shows that the awards to families in nursing homes are smaller, substantially smaller at arbitration than they are if a case were to go forward in court. AARON MATE: Have you ever monitored one of these proceedings? PAUL BLAND: I mean, I’ve been at arbitration proceedings. They’re essentially secretive. I mean, I think one of the things that’s really different from a court proceeding is in a court proceeding, anyone can come into the court room and the court room is public. In the arbitration proceeding, it’s in a conference room, usually in a big corporate defense firm some place, and there’s usually a gag order, where the evidence in the case cannot be given to a reporter, can’t be discussed publicly. The outcome of the cases frequently are difficult to find, and people will contact me and say, “Well, do you know how this arbitrator’s ruled?” And there’s no public records, there’s no way to figure that out. So, yeah, I have been involved in these, and they have completely different sets of rules than you would have in court. The arbitrators have enormous discretion, because no matter what they do, it’s incredibly rare for any court to overturn an arbitrator’s decision. If an arbitrator makes an error of law, courts have said even wacky ruling of law, or even glaring errors of law are not grounds for overturning a decision. In a U.S. Supreme Court case, when Justice O’Connor was on the court, she said that a silly finding of fact by an arbitrator wasn’t grounds for returning them. Basically, whatever this person who’s picked essentially by the corporation decides, that’s going to be the end of the case. AARON MATE: You know, listening to all this, I’m just struck by the imbalance of power here. On the one hand you have all these companies you mentioned earlier, hedge funds getting in on the nursing home market, which obviously then leads to a large lobbying operation. Certainly these companies have corporate lobbyists working for them in Washington. Compare that to the patients, the nursing home residents, many of them as you say who are on Medicaid or Medicare. How on a policy level are they supposed to be able to ensure protection for their basic rights when given the, A, the precarious situation that they’re in, and B, who they’re up against? PAUL BLAND: Yeah, that’s exactly right. So, here you’re really talking about probably one of the most vulnerable populations in America. People who are in nursing homes are frequently profoundly disabled, they’re often very senior citizens. When they’re first brought into the home and they’re given the fine print contracts, very few people read the contracts. They just sign every place that they’re pointed to sign. Courts really don’t pay much attention to the imbalance in power. There was a case from a … Excuse me. A case from a state Court of Appeals, a District Court of Appeals in Florida one time where there was a patient who had Alzheimer’s, was taking a variety of medicines and just had a stroke. She was being put into a nursing home and the District Court of Appeals said that it was impossible to imagine that she could have understood the arbitration clause that she put her initials next to. Despite that, the court still enforced it against them. You really have this incredible imbalance of power, and what the Trump administration’s done is they’re really siding with the overdog. This industry which is very concentrated, which makes huge campaign contributions, has really been able to convince the administration to support them against the most vulnerable patients. It’s a really, really sickening situation. AARON MATE: Again, with this specific case, The Rehabilitation Center at Hollywood Hills, we don’t yet for sure if residents were force to sign one of these arbitration clauses, but you’re saying that given the realities of the system, the odds are very likely that they have? PAUL BLAND: Right. So, since our public interest law firm specializes in finding where a company’s screwed up in drafting the arbitration clauses in some way. They overstepped or they messed up the contract rules, where you can find a defense and get around it, tons and tons of consumers contact us and say, “Look, we’ve got an arbitration clause that’s going to block us from being able to go forward. Can you find a way out of it?” I’ve looked at hundreds of nursing home arbitration clauses, and I can tell you from both talking to lawyers who handle these cases, from talking to consumers and from just our case intakes, that at least 95% of nursing homes in the United States has an arbitration clause in the fine print contract. It’s overwhelmingly likely, so I mean, I guess there is some chance that The Rehabilitation Center at Hollywood Hills is one of the few, and that the families of these eight victims are going to be minnows who escape the net and they’re not going to be bound by an arbitration clause, but it is really unlikely. AARON MATE: If that likelihood turns out to be null, that they have in fact signed away their rights to sue, what options if any do the family members of the victims of this tragedy have? PAUL BLAND: Well, then it really turns on the details of the arbitration clause. The vast majority of the time, arbitration clauses are enforceable. The U.S. Supreme Court strongly favored their enforcement. Justice Scalia said that there was supposedly an emphatic policy in favor, a federal law policy in favor of enforcing arbitration clauses. Now, as a matter of history, that’s all sort of made up. If you go back to the 1924 Arbitration Act, it was supposed to be between large commercial enterprises. It wasn’t supposed to be something that a powerful entity was going to impose on an individual. But anyhow, in general, courts both federal and state courts enforce arbitration clauses, except for the rare instance where a company has messed up in some way where they’ve made a mistake. If one of the families of one of these residents did sign an arbitration clause, the first thing I would do is pore over it and look really closely to see if one of the exceptions applies. But otherwise, they’re going to have to go to arbitration, and the case will be handled secretly, and they’ll get somebody who’s probably a corporate defense lawyer deciding the case and that’ll be it. That’ll be their only option. They won’t have an option way over 90% of the time. AARON MATE: We have to leave it there. Paul Bland, Executive Director and Senior Attorney at the non-profit law firm, Public Justice. Paul, thank you. PAUL BLAND: Thanks so much. AARON MATE: And thank you for joining us on The Real News.

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F. Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads Public Justice’s legal and foundation staff, guiding the organization’s litigation docket and other advocacy.