Nursing home takes Irma battle to fed level

Lawsuit challenges exclusion from health-care programs

TALLAHASSEE – A Broward County nursing home where 12 residents died after Hurricane Irma has gone to federal courts — including the U.S. Supreme Court — as it battles decisions that shut it out of government health-care programs and revoked its license.

The Rehabilitation Center at Hollywood Hills on Tuesday filed a lawsuit in U.S. district court in Fort Lauderdale against the U.S. Department of Health and Human Services as the nursing home challenges a decision that excludes it from federal health-care programs.

That case came less than three weeks after the nursing home filed a petition asking the U.S. Supreme Court to take up a challenge to a decision by the Florida Agency for Health Care Administration to revoke the facility’s license.

Both cases argue that the nursing home’s due-process rights were violated by the government agencies. Hurricane Irma in September 2017 knocked out the facility’s air conditioning, with authorities attributing as many as 12 resident deaths to sweltering conditions in the building.

The deaths and an evacuation of the facility drew national media coverage, and the nursing home contends that former Gov. Rick Scott’s administration rushed to take disciplinary action for political reasons.

Part of that disciplinary action was a move by the state Agency for Health Care Administration to suspend the nursing home from the Medicaid program — a move that was the basis of the facility being excluded from federal health-care programs. The state also subsequently revoked the nursing home’s license.

“The rule of law in times of natural disasters cannot sustain itself without loyalty to its requirements, including indispensable due process,” attorneys for the nursing home wrote in the lawsuit filed Tuesday. “Here, however, the rule of law was abandoned to ‘emergency’ orders in an effort for politicians to save face for their failings and

to use Hollywood Hills as a scapegoat. This [district court] should not allow this deprivation to continue any longer.”

In a brief filed in a state appeals court in the license-revocation case, however, attorneys for the Agency for Health Care Administration accused the nursing home of an “abject failure to meet its obligations as a licensed facility” and said it 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“[The nursing home’s] license was revoked because it failed to keep its residents safe and allowed an extremely unsafe environment to develop and continue,” said the agency’s brief, filed last year at the 4th District Court of Appeal. “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.”

The federal court filings are the latest steps in longrunning litigation, with the state and federal agencies prevailing in earlier rounds. The lawsuit filed Tuesday in district court came after what is known as a Departmental Appeals Board in June upheld the U.S. Department of Health and Human Services’ decision to exclude the nursing home from federal health-care programs.

Meanwhile, the petition filed June 18 at the U.S. Supreme Court came after the state’s 4th District Court of Appeal turned down arguments that the Agency for Health Care Administration improperly revoked the facility’s license. The appeals court backed state Administrative Law Judge Mary Li Creasy, who in 2018 issued a recommended order supporting the revocation.

While authorities have attributed as many as 12 deaths to conditions at the facility, 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.” Following Creasy’s recommendation, the Agency for Health Care Administration in January 2019 issued a final order revoking the license.

The nursing home’s attorneys took the case to the U.S. Supreme Court instead of the Florida Supreme Court because the 4th District Court of Appeal did not issue a full written opinion in upholding the license revocation. The Florida Supreme Court does not review such opinions, known as per curiam opinions, the attorneys wrote in last month’s petition.

The U.S. Supreme Court agrees to hear only a fraction of the cases it receives. But the nursing home’s attorneys contend their case should be heard to correct “errors that conflict with the long-established due process requirements of this [Supreme] Court and federal circuit courts.”

“This is a case in which Florida’s Agency for Health Care Administration exercised the most extreme punishment available to long-term care facilities, the regulatory ‘death penalty’ of license revocation, against [The Rehabilitation Center at Hollywood Hills] after some of its residents died in the aftermath of Hurricane Irma in 2017,” the petition said. “This was done without affording the licensee the due process to which it was legally entitled: full and fair discovery and full and fair hearing that included a meaningful opportunity to offer evidence, argument, and afforded consideration pertinent to the applicable law and the licensee’s available defenses.”