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Nursing Home Lawyers A No-show In Records Case

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
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The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Lawyers for an embattled Broward County nursing home failed to show up Monday for a hearing they requested in a public-records legal tangle with the Florida Department of Health.

Attorneys for The Rehabilitation Center at Hollywood Hills, which incurred the wrath of Gov. Rick Scott after elderly residents died following Hurricane Irma last year, had asked Leon County Circuit Judge Terry Lewis to hold the department in contempt in a dispute over death certificates from across the state.

Lewis last month ordered the health department to turn over the death certificates, but lawyers for the nursing home are accusing the state of dragging its feet in producing the records. The lawyers are also challenging the nearly $6,000 price tag for the public documents. The state, meanwhile, maintains it isn’t obliged to turn over the records until it receives payment.

Lewis waited about 10 minutes Monday morning before asking Department of Health Assistant General Counsel Michael J. Williams to call attorneys for the nursing home, represented by Geoffrey Smith, Susan Smith and Stephen Burch, who have offices in Melbourne and Tallahassee. After Williams waited on hold for a short while, Lewis told him to hang up.

Lewis, who had originally scheduled 15 minutes for the hearing, said there appeared to be a “factual dispute” in the case that would require more time for both sides to present evidence.

“They say, ‘Oh this is ridiculous, it shouldn’t take you two months, it shouldn’t cost $6,000.’ I don’t know,” the judge told Williams. “I would suggest, if the plaintiffs were here, that they pay whatever it is and let you get going.”

Saying he would have decided later about “what’s a reasonable time” and “what’s a reasonable fee,” Lewis asked to reschedule a longer hearing to address the contempt issue.

Geoffrey Smith indicated Monday morning’s no-show was a mix-up.

“Due to a misunderstanding related to the scheduling of hearings in several ongoing related matters, the attorney assigned to the motion for contempt hearing in our Tallahassee office had the incorrect time and believed that the hearing had been set for 3 p.m. instead of 11 a.m.,” Smith said in a statement. “Based upon the judge’s ruling that there are factual disputes that will require an hour long evidentiary hearing, the matter is being rescheduled. We continue to look forward to the production of the public record information on deaths that occurred in Florida during the aftermath of Hurricane Irma.”   

The nursing home has faced intense scrutiny and a state move to revoke its license after residents died following Hurricane Irma. The Sept. 10 storm knocked out the nursing home’s air-conditioning system, creating sweltering conditions that led to the evacuation of residents on Sept. 13. Authorities have attributed 12 deaths to the problems at the nursing home.

The nursing home and the state have been locked in a legal battle about the license revocation and other issues, and The Rehabilitation Center at Hollywood Hills filed a public-records lawsuit Jan. 31, alleging that the department had improperly refused to provide copies of death certificates for people across the state from Sept. 9 through Sept. 16 --- a week-long period that included Hurricane Irma and its immediate aftermath.

Court documents have not spelled out why the nursing home wants the death certificates, but Lewis last month said the death certificates are public records and should be provided by the state.

“The records requested by petitioner (the nursing home) are subject to Florida’s Public Record Act … and there is no applicable statutory exemption to permit their withholding from release,” Lewis wrote.

But in the contempt motion filed this month, attorneys for The Rehabilitation Center at Hollywood Hills alleged that the Department of Health “is delaying, attempting to charge illegal fees and otherwise intentionally refusing to comply with this court’s mandate.”

In part, the nursing home objected to a May 7 invoice from the department for $5,928, including $5,907 for “review & redaction” of about 6,000 death certificates records. The nursing home contends that there is not a need to review and redact information from the death certificates, a process that the invoice indicates would require 492.25 hours.

But in a response to the motion filed Wednesday, lawyers for the state argued that, although nothing in the records should require review or redaction, “the department is not permitted to bypass its duty to review and redact any confidential and exempted” information in each of the records.

“Petitioner now seeks to receive records of its choosing, containing information of its choosing, without abiding by well-established, and judicially recognized processes pertaining to public records, including paying for the necessary review and redaction of the requested records” as required by Florida law, Williams wrote.