Court to hear license fight after nursing home deaths

February 5, 2020

Jim Saunders

TALLAHASSEE --- More than two years after elderly residents died following Hurricane Irma, an appeals court next week will take up a battle about whether the state should have revoked the license of a Broward County nursing home.

Attorneys for The Rehabilitation Center at Hollywood Hills are asking the 4th District Court of Appeal to find that an administrative law judge made a series of errors in recommending that the facility lose its license. Hurricane Irma knocked out the facility’s air conditioning, with authorities attributing as many as 12 resident deaths to sweltering conditions in the building.

In a brief filed at the appeals court, nursing-home attorneys alleged “politicization” by former Gov. Rick Scott’s administration of the incident, which drew national media attention. They also argued that nursing-home staff members repeatedly sought help in trying to get the air-conditioning system restored, including contacting emergency-management officials and Florida Power & Light and calling Scott’s cell phone.

“Staff made repeated calls attempting to get the AC (air conditioning) power restored,” the brief, filed in July, said. “Government officials promised (the nursing home) its AC restoration would be ‘escalated,’ but help never arrived until it was too late. In the media frenzied, politically charged environment, the governor directed AHCA (the state Agency for Health Care Administration) to take immediate action against (the nursing home) to revoke its license.”

But attorneys for the Agency for Health Care Administration fired back in a brief, saying that the nursing home’s “abject failure to meet its obligations as a licensed facility and the tragic consequences justify AHCA' s decision to revoke its license.”

“Throughout this proceeding, (the nursing home) has sought to blame others for the tragic loss of life,” the agency’s brief, filed in September, said. “But the actions of others are not at issue in this case. Florida law places a non-delegable duty on licensees to provide appropriate care and keep residents safe, even in the event of a natural disaster. (The nursing home) failed to take the steps necessary to prevent the numerous heat related deaths and the suffering of its residents after the loss of the facility's A/C.”

A panel of the South Florida appeals court is scheduled to hear arguments in the case Tuesday.

The issues in the appeal focus heavily on a recommended order issued in 2018 by Administrative Law Judge Mary Li Creasy that backed a decision by the Scott administration to shut down the 152-bed nursing home. Following Creasy’s recommendation, the Agency for Health Care Administration in January 2019 issued a final order to revoke the license.

Hurricane Irma made landfall Sept. 10, 2017 in Monroe and Collier counties and caused damage through much of the state. The nursing home lost power to its air-conditioning system, which was out until Sept. 13, when residents were evacuated.

Authorities have attributed as many as 12 deaths to conditions at the facility, though Creasy wrote that “clear and convincing evidence” was presented during the case that nine of the 12 residents “suffered greatly from the exposure to unsafe heat in the facility.”

In the appeal, however, the nursing home’s attorneys have contended, in part, that Creasy did not have “clear and convincing evidence” of negligence by the facility.

“In the face of overwhelming evidence to the contrary, the ALJ (Creasy) found the facility negligent based upon speculation and conjecture about what they might have done differently, and ultimately applying an ispo facto analysis: residents died, and therefore the facility did not keep them safe,” the July brief said.

But the Agency for Health Care Administration said the nursing home did not comply with state laws that require keeping residents safe.

“(The nursing home’s) license was revoked because it failed to keep its residents safe and allowed an extremely unsafe environment to develop and continue,” the AHCA brief said. “The statutory language placed (the nursing home) on notice that it was responsible for keeping its frail and vulnerable residents safe at all times, including following a hurricane or natural disaster.”