Petition for Writ of Certiorari — Rehabilitation Center at Hollywood Hills, LLC, Petitioner v. State of Florida, Agency for Health Care Administration

App. 1

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

REHABILITATION CENTER AT

HOLLYWOOD HILLS, LLC,

Appellant,

v.

STATE OF FLORIDA,

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Appellee.

No. 4D19-293

[February 13, 2020]

Appeal from the State of Florida, Agency for

Health Care Administration, L.T. Case No.

2017011570.

Geoffrey D. Smith, Susan C. Smith and Stephen B.

Burch of Smith & Associates, Tallahassee, for appellant.

J. Stephen Menton, Stephen A. Ecenia, Gabriel

F.V. Warren and Tana D. Storey of Rutledge Ecenia,

P.A., Tallahassee, for appellee.

PER CURIAM.

Affirmed.

MAY, CIKLIN and GERBER, JJ., concur.

*

*

*

Not final until disposition of timely filed motion for rehearing.

App. 2

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA,

AGENCY FOR HEALTH

CARE ADMINISTRATION,

DOAH CASE NO.

17-5769

AHCA NO.

2017011570

FILE NO. 100611

LICENSE NO.

1238096

PROVIDER TYPE :

NURSING HOME

RENDITION NO.:

AHCA-19-0038FOF-OLC

Petitioner,

vs.

REHABILITATION CENTER

AT HOLLYWOOD HILLS, LLC,

Respondent.

/

FINAL ORDER

(Filed Jan. 4, 2019)

This case was referred to the Division of Administrative Hearings (DOAH) where the assigned Administrative Law Judge (ALJ), Mary Li Creasy, conducted

a formal administrative hearing. At issue in this proceeding is whether Respondent, Rehabilitation Center

at Hollywood Hills, LLC (“Hollywood Hills”), violated

Florida law as alleged in the Amended Administrative

Complaint issued by the Agency for Health Care Administration (“AHCA” or “Agency”); and, if so, what

sanctions should be imposed. The Recommended Order

entered on November 30, 2018 is attached to this final

order and incorporated herein by reference.

App. 3

RULINGS ON EXCEPTIONS

Respondent filed exceptions to the Recommended

Order, and Petitioner filed a response to Respondent’s

exceptions.

In determining how to rule upon Respondent’s exceptions and whether to adopt the ALJ’s Recommended Order in whole or in part, the Agency for

Health Care Administration (“Agency” or “AHCA”)

must follow section 120.57(1)(l), Florida Statutes,

which provides in pertinent part:

The agency may adopt the recommended order as the final order of the agency. The

agency in its final order may reject or modify

the conclusions of law over which it has substantive jurisdiction and interpretation of

administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation

of administrative rule, the agency must state

with particularity its reasons for rejecting or

modifying such conclusion of law or interpretation of administrative rule and must make

a finding that its substituted conclusion of law

or interpretation of administrative rule is as

or more reasonable than that which was rejected or modified. Rejection or modification of

conclusions of law may not form the basis for

rejection or modification of findings of fact.

The agency may not reject or modify the findings of fact unless the agency first determines

from a review of the entire record, and states

with particularity in the order, that the

App. 4

findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not

comply with essential requirements of law. . . .

§ 120.57(1)(l), Fla. Stat. Additionally, “[t]he final order

shall include an explicit ruling on each exception, but

an agency need not rule on an exception that does not

clearly identify the disputed portion of the recommended order by page number or paragraph, that does

not identify the legal basis for the exception, or that

does not include appropriate and specific citations to

the record.” § 120.57(1)(k), Fla. Stat. In accordance

with these legal standards, the Agency makes the following rulings on Respondent’s exceptions:

In Exception 1, Respondent takes exception to the

ALJ’s evidentiary rulings in this matter, arguing they

took away its legal defenses. An ALJ’s rulings on evidentiary issues are clearly outside of the Agency’s substantive jurisdiction. See Barfield v. Dep’t of Health,

805 So. 2d 1008, 1011 (Fla. 1st DCA 2002). Thus, the

Agency cannot disturb them. § 120.57(1)(l), Fla. Stat.

Therefore, the Agency denies Exception 1.

In Exception 2, Respondent takes exception to Paragraph 51 of the Recommended Order, arguing the

findings of fact contained therein are not based on competent, substantial evidence. Respondent’s argument

is incorrect. The findings of fact in Paragraph 51 of the

Recommended Order are based on competent, substantial record evidence. See Transcript at Pages 412-413,

504, 505-506, 537; Petitioner’s Exhibit 25 at 05:24:20;

App. 5

Respondent’s Exhibit 35, Item 60, 2017-09-13, CH02

from 10:13:33 to 04:56:40. Thus, the Agency cannot

reject or modify them. See § 120.57(1)(l), Fla. Stat.;

Heifetz v. Dep’t of Bus. Reg., 475 So. 2d 1277, 1281 (Fla.

1st DCA 1985) (holding that an agency “may not reject

the hearing officer’s finding [of fact] unless there is no

competent, substantial evidence from which the finding could reasonably be inferred”). While there might

be contradictory evidence in the record, it is the job

of the ALJ to weigh the evidence, and make the resulting findings of fact. The Agency cannot re-weigh the

evidence, or second-guess the ALJ’s determination on

what weight should be given to the evidence. See

Heifetz, 475 So. 2d at 1281. Furthermore, to the extent Respondent’s exception takes issue with the ALJ’s

ruling on an evidentiary issue, the Agency does not

have substantive jurisdiction over that ruling. See

§ 120.57(1)(l), Fla. Stat.; Barfield, 805 So. 2d at 1011.

Therefore, the Agency denies Exception 2.

In Exception 3, Respondent takes exception to the

findings of fact in Paragraphs 50, 104 and 105 of the

Recommended Order, arguing the paragraphs are not

supported by competent, substantial evidence. Contrary to Respondent’s argument, the findings of fact

in Paragraphs 50, 104 and 105 of the Recommended

Order are all supported by competent, substantial record evidence. See Transcript at Pages 412-413, 504506, 537, 542, 655-657, 661-662, 665-666, 1191-1193;

Petitioner’s Exhibit 52, #24 at 05:44:48; Respondent’s

Exhibit 195 at #7737, #7739, #7779. Thus, the Agency

is prohibited from rejecting or modifying them. See

App. 6

§120.57(1)(l), Fla. Stat.; Heifetz, 475 So. 2d at 1281.

Therefore, the Agency denies Exception 3.

In Exception 4, Respondent takes exception to Paragraph 21 of the Recommended Order, arguing the findings of fact contained therein are not based on

competent, substantial evidence. Specifically, Respondent takes exceptions to the ALJ’s finding that “no temperature logs were discovered by the police, casting

serious doubt on the credibility and accuracy of Mr.

Williams’ testimony regarding monitoring temperatures.” The finding at issue is the direct result of the

ALJ’s weighing of witness testimony. See Transcript at

Pages 2639, 2644-2646, 2649, 3729-3733, 3768-3769,

3773-3775. The Agency is prohibited from re-weighing

the testimony, or second-guessing the ALJ’s weighing

of testimony. See § 120.57(1)(l), Fla. Stat.; Heifetz, 475

So. 2d at 1281 (“The agency is not authorized to weigh

the evidence presented, judge credibility of witnesses,

or otherwise interpret the evidence to fit its desired

ultimate conclusion.”). Therefore, the Agency denies

Exception 4.

In Exceptions 5 and 6, Respondent takes exception to Paragraphs 152, 166-169, 212, 220, 228 and

Endnote 9 of the Recommended Order, arguing the

findings of fact and conclusions of law contained

therein are not supported by competent, substantial

evidence, and should not be grounds for revocation of

Respondent’s license. The Agency disagrees. The findings of fact in Paragraphs 152, 166-169 and Endnote 9

of the Recommended Order are supported by competent, substantial record evidence. See Transcript at

App. 7

Pages 2098-2099, 2108, 2128-2129, 2145, 2148-2149,

2155-2156. Thus, the Agency is not at liberty to reject

or modify them. See §120.57(1)(l), Fla. Stat.; Heifetz,

475 So. 2d at 1281. Based on the findings of fact in Paragraphs 152, 166-169 and Endnote 9, the ALJ correctly

concludes in Paragraphs 212, 220 and 228 of the Recommended Order that Respondent created an unsafe

environment for its residents, and thus “negatively affected the health and safety of its residents and led or

contributed to the death of multiple residents.” See

Paragraph 220 of the Recommended Order. The

Agency finds that it has substantive jurisdiction over

the conclusions of law in Paragraphs 212, 220 and 228

of the Recommended Order because it is the state

agency charged with the licensure and regulation of

nursing homes in Florida. However, the Agency is unable to substitute conclusions of law that are as or

more reasonable than those reached by the ALJ in

Paragraphs 212, 220 and 228 of the Recommended Order. § 120.57(1)(l), Fla. Stat. Additionally, Respondent

is essentially asking the Agency to re-weigh witness

testimony in this matter. However, the Agency cannot

lawfully engage in such an exercise. See § 120.57(1)(l),

Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, based

on the foregoing reasons, the Agency denies Exceptions

5 and 6.

In Exception 7, Respondent takes exception to

Paragraphs 21, 64, 66, 71, 73, 74 and 176 of the Recommended Order, arguing the findings of fact contained

therein should be stricken because of the witness testimony from which they are derived. Respondent’s

App. 8

argument is based on its January 5, 2018 Motion in

Limine, which the ALJ denied. The Agency does not

have substantive jurisdiction to review the ALJ’s

ruling on Respondent’s Motion in Limine. See

§ 120.57(1)(l), Fla. Stat.; Barfield, 805 So. 2d 1008.

Therefore, the Agency denies Exception 7.

In Exception 8, Respondent takes exception to

Paragraphs 33, 34, 35, 41, 42, 43, 45, 46, 47, 49, 50, 51,

52, 53, 54, 57, 59, 60, 61, 63, 67, 68, 69, 78, 79, 80, 85,

86, 93, 98, 99, 104, 110, 112, 116, 138, 139 and 140 of

the Recommended Order, using the same argument

from its Exception 7. Based upon the Agency’s ruling

on Exception 7 supra, which is hereby incorporated by

reference, the Agency denies Exception 8.

In Exception 9, Respondent takes exception to

what it deems was the ALJ’s improper refusal to allow

Respondent to conduct discovery on mitigating evidence. As was the case with Respondent’s Exceptions 7

and 8, Exception 9 concerns evidentiary rulings by the

ALJ that are clearly outside of the Agency’s substantive jurisdiction. See § 120.57(1)(l), Fla. Stat.; Barfield,

805 So. 2d at 1011. Therefore, the Agency denies Exception 9.

In Exception 10, Respondent takes exception to

what it deems was the Agency’s improper collusion

with the Hialeah Police Department to obtain Respondent’s alleged attorney-client information. Exception 10 fails to clearly identify the disputed portion

of the Recommended Order to which the exception pertains by page number or paragraph. Thus, the Agency

App. 9

does not need to rule on it. See § 120.57(1)(k), Fla. Stat.

Alternatively, Exception 10 concerns the ALJ’s ruling

on an evidentiary issue that is clearly outside of the

Agency’s substantive jurisdiction. See § 120.57(1)(l),

Fla. Stat.; Barfield, 805 So. 2d at 1011. Therefore, the

Agency denies Exception 10.

In Exception 11, Respondent takes exception to

Paragraphs 6, 7, 14, 15, 40, 41, 192, 195, 196 and 228

of the Recommended Order, arguing

[t]he ALJ, through her ruling on pre-hearing

motions as discussed elsewhere herein, specifically prevented Hollywood Hills from developing, discovering and presenting evidence

concerning the facts and circumstances regarding this deficit in the emergency management system from lack of any rules for

alternate power or alternative cooling systems, and subsequent measures taken by

state officials to try to remedy a deficient system.

See Page 69 of Hollywood Hills’ Exceptions to the Recommended Order. Respondent once again takes exception to evidentiary rulings that the Agency cannot

address because they are outside its substantive jurisdiction. See § 120.57(1)(l), Fla. Stat.; Barfield, 805 So.

2d at 1011. Additionally, Respondent is asking the

Agency to re-weigh the evidence presented and make

findings and conclusions that differ from the ALJ.

However, the Agency cannot engage in such an exercise. See Heifetz, 475 So. 2d at 1281. Therefore, the

Agency denies Exception 11.

App. 10

In Exception 12, Respondent takes exception to

Paragraphs 23, 40, 51, 84, 90, 96, 97, 115, 135, 184, 186,

187, 199, 216, 220 and 221 of the Recommended Order,

arguing the findings of fact and conclusions of law in

these paragraphs are not supported by competent, substantial evidence and should be rejected by the Agency.

The findings of fact contained in Paragraphs 23, 40, 51,

84, 90, 96, 97, 115, 135, 184, 186, 187 and 199 of the

Recommended Order are all supported by competent,

substantial record evidence. See Transcript at Pages

413, 645, 648-649, 1051-1052, 1922-1924, 2221-2222,

2315-2316, 2325-2326, 3174, 3190-3197, 3203, 32903291, 3786-3787, 3792-3793, 4018, 4032-4033; Petitioner’s Exhibit 52, at #3, #21-#24, #25 at 05:24:20;

Respondent’s Exhibit 35, Item 60, 2017-09-13, CH02

from 10:13:33 to 04:56:40, CH10, from 18:59:58 to

23:58:17, and from 00:00:08 to 02:54:36; Respondent’s

Exhibit 193 at #6703; Respondent’s Exhibit 196 at

#8465, #8475; Respondent’s Exhibit 198 at #88838884, #8925, #8964; Respondent’s Exhibit 199 at

#9425, #9428, #9853. Thus, the Agency is prohibited

from rejecting or modifying them. See §120.57(1)(l),

Fla. Stat.; Heifetz, 475 So. 2d at 1281. The findings of

fact, in turn, led the ALJ to correctly conclude in Paragraphs 216, 220 and 221 of the Recommended Order

that Respondent violated the law. The Agency finds

that it has substantive jurisdiction over the conclusions of law in Paragraphs 216, 220 and 221 of the

Recommended Order because it is the state agency

charged with the licensure and regulation of nursing

homes in Florida. However, the Agency cannot substitute conclusions of law that are as or more reasonable

App. 11

than those reached by the ALJ in Paragraphs 216, 220

and 221 of the Recommended Order. § 120.57(1)(l), Fla.

Stat. Therefore, the Agency denies Exception 12.

In Exception 13, Respondent takes exception to

Paragraphs 34, 41, 43, 45, 47, 48, 64 and 140 of the

Recommended Order, arguing Petitioner did not produce any direct evidence regarding the temperature

in Respondent’s facility during the events at issue. The

findings of fact in Paragraphs 34, 41, 43, 45, 47, 48, 64

and 140 of the Recommended Order are all supported

by competent, substantial record evidence. See Transcript at Pages 111-112, 114-115, 116-117, 128, 175,

238, 243-244, 248, 249, 317, 392, 398-399, 402, 403, 405,

406-407, 424-425, 497-498, 501, 502, 510-511, 531-533,

694, 816, 825-826, 1306-1307 and 1465; Respondent’s

Exhibit 193 at #6715; and Respondent’s Exhibit 202

at #11586. Thus, the Agency is not permitted to reject

or modify them. See §120.57(1)(l), Fla. Stat.; Heifetz,

475 So. 2d at 1281. Therefore, the Agency denies Exception 13.

In Exception 14, Respondent takes exception to

the alleged “unconstitutional vagueness” of the statutes and rules the ALJ concluded it violated. Since

there is no express authority given to the Agency by

section 120.57(1), Florida Statutes, to address and rule

on constitutional issues in administrative proceedings,

the Agency will not rule on Exception 14. See also Gulf

Pines Mem’l Park, Inc. v. Oakland Mem’l Park, Inc.,

361 So. 2d 695 (Fla. 1978).

App. 12

In Exception 15, Respondent accuses the ALJ of

basing her findings of fact on “inferences stacked upon

inferences.” See Page 90 of Hollywood Hills’ Exceptions

to the Recommended Order. The Agency does not need

to rule on Exception 15 because it is not a valid exception since Respondent fails to clearly identify the disputed portion of the Recommended Order that it is

taking exception to by page number or paragraph. See

§ 120.57(1)(k), Fla. Stat.

In Exception 16, Respondent takes exception to

the Agency’s denial of its motion for an extension of

time to file exceptions to the Recommended Order. This

too is also not a valid exception to the Recommended

Order since Respondent fails to clearly identify the

disputed portion of the Recommended Order by page

number or paragraph. See § 120.57(1)(k), Fla. Stat.

Therefore, the Agency need not rule on it.

In Exception 17, Respondent takes exception to

the lack of a proper record in this matter. Once again,

Respondent fails to clearly identify the disputed portion of the Recommended Order to which it is taking

exception by page number or paragraph. Thus, the

Agency need not rule on it. § 120.57(1)(k), Fla. Stat.

Alternatively, Respondent’s argument concerns an issue that is clearly outside of the Agency’s substantive

jurisdiction. See, e.g., § 120.57(1)(l), Fla. Stat.; Deep

Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140,

1142 (Fla. 2d DCA 2001) (stating an agency does not

have substantive jurisdiction to decide whether the

doctrine of collateral estoppel applies to a particular

case); Barfield, 805 So. 2d at 1011 (stating a licensing

App. 13

board lacked substantive jurisdiction to reject an ALJ’s

conclusion of law on an evidentiary issue). Therefore,

the Agency denies Exception 17.

In Exception 18, Respondent takes exception to

the ALJ’s alleged improper burden shifting in this

matter, and specifically mentions Paragraph 15 of the

Recommended Order. Paragraph 15 of the Recommended Order contains findings of fact that are based

on competent, substantial record evidence. See Transcript at Pages 1859 and 2727; Respondent’s Exhibit

78. Thus, the Agency cannot reject or modify them.

See §120.57(1)(l), Fla. Stat.; Heifetz, 475 So. 2d at 1281.

Additionally, Respondent’s argument is unfounded.

The Recommended Order clearly states Petitioner had

the burden of proof by clear and convincing evidence

in this matter (See Paragraph 203 of the Recommended Order), and met its burden of proof (See Paragraph 205 of the Recommended Order). Therefore, the

Agency denies Exception 18.

In Exception 19, Respondent takes exception to

Paragraphs 32 and 37 of the Recommended Order,

arguing the findings of fact in these paragraphs are

not based on competent, substantial evidence. Contrary to Respondent’s argument, the findings of fact in

Paragraphs 32 and 37 of the Recommended Order are

based on competent, substantial record evidence. See

Transcript at Pages 2532-2536, 3789-3791; Respondent’s Exhibits 2, 3, 21. Thus, the Agency cannot disturb them. See §120.57(1)(l), Fla. Stat.; Heifetz, 475 So.

2d at 1281. Therefore, the Agency denies Exception 19.

App. 14

In Exception 20, Respondent takes exception to

Paragraphs 36 of the Recommended Order, arguing the

findings of fact contained therein are not based on competent, substantial evidence. Contrary to Respondent’s

assertion, the findings of fact in Paragraph 36 of the

Recommended Order are based on competent, substantial record evidence. See Transcript at Pages 152, 157

and 162-163; and Respondent’s Exhibit 202 at #1133111333 Thus, the Agency is prohibited from rejecting or

modifying them. See §120.57(1)(l), Fla. Stat.; Heifetz,

475 So. 2d at 1281. Therefore, the Agency denies Exception 20.

In Exception 21, Respondent takes exception to

Paragraphs 81, 91, 95, 101, 107, 114, 128, 136, 143

and 146 of the Recommended Order, arguing “[t]he

ALJ improperly relied on the testimony of the medical

examiners despite the clear evidence that these examiners did not follow the National Association of Medical Examiner Guidelines.” The findings of fact in

Paragraphs 81, 91, 95, 101, 107, 114, 128, 136, 143 and

146 of the Recommended Order are all based on competent, substantial record evidence. See Transcript at

Pages 622, 624, 625-626, 639-644, 648-649, 659, 661,

666, 682-684, 694-695, 701, 942, 953, 956, 964, 981, 986,

1000, 1051, 1085-1086; Respondent’s Exhibit 192 at

#5902; Respondent’s Exhibit 193 at #6703; Respondent’s Exhibit 195 at #7778-7779; Respondent’s Exhibit 196 at #8163-#8164; Respondent’s Exhibit 198

at #8884; Respondent’s Exhibit 199 at #9466, #9467,

#9611; Respondent’s Exhibit 200 at #10116; Respondent’s Exhibit 201 at #10685; Respondent’s Exhibit

App. 15

202 at #11333; Respondent’s Exhibit 203 at #12358.

Thus, the Agency is not at liberty to reject or modify

them. See §120.57(1)(l), Fla. Stat.; Heifetz, 475 So. 2d

at 1281. In addition, to the extent Respondent’s argument involves the ALJ’s determination of the credibility of witnesses, the Agency cannot second-guess the

ALJ’s determination on that issue. See Heifetz, 475 So.

2d at 1281 (“The agency is not authorized to weigh the

evidence presented, judge credibility of witnesses, or

otherwise interpret the evidence to fit its desired ultimate conclusion.”). Therefore, the Agency denies Exception 21.

In Exception 22, Respondent takes exception to

Paragraphs 153, 154, 155, 156, 157, 158, 159, 160, 162,

163, 164, 173, 175 and 177 of the Recommended Order,

arguing the findings of fact in these paragraphs are

not supported by competent, substantial evidence.

Contrary to Respondent’s assertion, the findings of

fact in Paragraphs 153, 154, 155, 156, 157, 158, 159,

160, 162, 163, 164, 173, 175 and 177 of the Recommended Order are all supported by competent, substantial record evidence. See Transcript at Pages

2097-2099, 2101-2102, 2108, 2113, 2117, 2121, 2123,

2130-2132, 2133, 2136-2140, 2142, 2143, 2144, 2147,

2148-2149, 2150-2151, 2154, 2155-2156, 3336-3338,

3372, 3402-3403, 3417-3418, 4097; and Deposition

Composite Exhibits 175, 177, 178, 179, 185. Thus, the

Agency is not permitted to reject or modify them. See

§120.57(1)(l), Fla. Stat.; Heifetz, 475 So. 2d at 1281.

In addition, to the extent Respondent’s argument involves the ALJ’s determination of the credibility of

App. 16

witnesses, the Agency cannot second-guess the ALJ’s

determination on that issue. See Heifetz, 475 So. 2d at

1281 (“The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate

conclusion.”). Therefore, the Agency denies Exception

22.

In Exception 23, Respondent does not take exception to anything in the Recommended Order. Instead,

it incorporates by reference its Proposed Recommended Order and “all written motions filed in this

matter, including the arguments contained therein.”

The Agency does not need to rule on Exception 23 because it is not a valid exception since Respondent fails

to clearly identify the disputed portion of the Recommended Order that it is taking exception to by page

number or paragraph. See § 120.57(1)(k), Fla. Stat.

FINDINGS OF FACT

The Agency hereby adopts the findings of fact set

forth in the Recommended Order.

CONCLUSIONS OF LAW

The Agency hereby adopts the conclusions of law

set forth in the Recommended Order.

ORDER

1. Respondent’s nursing home license is hereby

revoked, and an administrative fine of $37,500 is

App. 17

hereby imposed on Respondent. Unless payment has

already been made, payment in the amount of $37,500

is now due from Respondent. Such payment shall be

made in full within 30 days of the filing of this Final

Order unless other payment arrangements have been

made. The payment shall be made by check payable to

Agency for Health Care Administration, and shall be

mailed to the Agency for Health Care Administration,

Attn. Central Intake Unit, 2727 Mahan Drive, Mail

Stop 61, Tallahassee, Florida 32308.

2. Respondent shall also pay the costs of the investigation and prosecution of the case to the Agency

pursuant to section 400.121(8), Florida Statutes. The

parties shall attempt to agree to amount of the costs of

the investigation and prosecution of this matter. If

the parties are unable to reach such agreement, either

party may file a request for hearing with the Division

of Administrative Hearings under this case style

within 30 days of the date of rendition of this Final

Order, and the Administrative Law Judge who presided over this matter shall determine the amount of

such costs.

3. In accordance with Florida law, Petitioner is

responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable

administrative code provisions. Petitioner is advised of

Section 408.810, Florida Statutes.

App. 18

4. In accordance with Florida law, Petitioner is

responsible for any refunds that may have to be made

to the clients.

5. Petitioner is given notice of Florida law regarding unlicensed activity. It is advised of Section

408.804 and Section 408.812, Florida Statutes. Petitioner should also consult the applicable authorizing

statutes and administrative code provisions. Petitioner

is notified that the revocation of its registration may

have ramifications potentially affecting accrediting,

third party billing including but not limited to the Florida Medicaid program, and private contracts.

DONE AND ORDERED in Tallahassee, Florida,

on this 4th day of January , 2019.

/s/ Justin M. Senior

JUSTIN M. SENIOR, Secretary

AGENCY FOR HEALTH CARE

ADMINISTRATION

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY

THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW, WHICH SHALL BE INSTITUTED BY

FILING THE ORIGINAL NOTICE OF APPEAL

WITH THE AGENCY CLERK OF AHCA, AND A

COPY, ALONG WITH THE FILING FEE PRESCRIBED BY LAW, WITH THE DISTRICT COURT

OF APPEAL IN THE APPELLATE DISTRICT

WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES.

App. 19

REVIEW PROCEEDINGS SHALL BE CONDUCTED

IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE

FILED WITHIN 30 DAYS OF THE RENDITION OF

THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I CERTIFY that a true and correct copy of this

Final Order was served on the below-named persons

by the method designated on this 4th day of

January , 2019.

/s/ Richard J. Shoop

RICHARD J. SHOOP, Agency Clerk

AGENCY FOR HEALTH CARE

ADMINISTRATION

2727 Mahan Drive, MS #3

Tallahassee, Florida 32308

Telephone: (850) 412-3630

Copies furnished to:

Jan Mills

Facilities Intake Unit

Agency for Health Care

Administration

(Electronic Mail)

Keisha Woods,

Unit Manager

Assisted Living Unit

Agency for Health Care

Administration

(Electronic Mail)

App. 20

Finance & Accounting

Revenue Management

Unit

Agency for Health Care

Administration

(Electronic Mail)

Arlene Mayo-Davis,

Field Office Manager

Area 10 Field Office

(Electronic Mail)

Katrina Derico-Harris

Medicaid Accounts

Receivable

Agency for Health Care

Administration

(Electronic Mail)

Stephen A. Ecenia, Esquire

J. Stephen Menton, Esquire

Gabriel F. V. Warren, Esquire

Tana D. Storey, Esquire

Jennifer F. Hinson, Esquire

David Mark Maloney, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street,

Suite 202

Tallahassee, Florida 32301

(via electronic mail to

Steve@rutledgeecenia.com,

smenton@rutledgeecenia.com, gwarren@

rutledge-ecenia.com,

tana@rutledgeecenia.com,

Jennifer@rutledgeecenia.com, and dmaloney@

rutledge-ecenia.com)

App. 21

Shawn McCauley

Medicaid Contract

Management Agency

for Health Care

Administration

(Electronic Mail)

Geoffrey D. Smith, Esquire

Susan C. Smith, Esquire

Timothy B. Elliott, Esquire

Corinne T. Porcher, Esquire

Smith & Associates

3301 Thomasville Road,

Suite 201

Tallahassee, Florida 32303

(via electronic mail to

geoff@smithlawtlh.com,

susan@smithlawtlh.com,

tim@smithlawtlh.com, and

corinne@smithlawtlh.com)

Honorable Mary Li Creasy Stephen B. Burch, Esquire

Administrative Law

Smith & Associates

Judge

1499 South Harbor City

Division of

Boulevard, Suite 202

Administrative Hearings Melbourne, Florida 32901

The DeSoto Building

(via electronic mail to

1230 Apalachee Parkway stephen@smithlawtlh.com)

Tallahassee, Florida

32399-3060

(Electronic Filing)

Julie W. Allison, Esquire

Julie W. Allison, P.A.

225 South 21st Avenue

Hollywood, Florida 33020

(via electronic mail to

julie@allisonlaw.net)

App. 22

NOTICE OF FLORIDA LAW

408.804 License required; display. –

(1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers

or provides services that require licensure, without

first obtaining from the agency a license authorizing

the provision of such services or the operation or

maintenance of such provider.

(2) A license must be displayed in a conspicuous place

readily visible to clients who enter at the address that

appears on the license and is valid only in the hands of

the licensee to whom it is issued and may not be sold,

assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee,

provider, and location for which the license is issued.

408.812 Unlicensed activity. –

(1) A person or entity may not offer or advertise

services that require licensure as defined by this part,

authorizing statutes, or applicable rules to the public

without obtaining a valid license from the agency. A

licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for

which he or she actually holds the license.

(2) The operation or maintenance of an unlicensed

provider or the performance of any services that require licensure without proper licensure is a violation

of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health,

App. 23

safety, and welfare of clients. The agency or any state

attorney may, in addition to other remedies provided

in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation

or maintenance of the unlicensed provider or the performance of any services in violation of this part and

authorizing statutes, until compliance with this part,

authorizing statutes, and agency rules has been

demonstrated to the satisfaction of the agency.

(3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or

entity fails to cease operation and apply for a license

under this part and authorizing statutes, the person or

entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of

continued operation is a separate offense.

(4) Any person or entity that fails to cease operation

after agency notification may be fined $1,000 for each

day of noncompliance.

(5) When a controlling interest or licensee has an interest in more than one provider and fails to license a

provider rendering services that require licensure, the

agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each

licensee until such time as the appropriate license is

obtained for the unlicensed operation.

(6) In addition to granting injunctive relief pursuant

to subsection (2), if the agency determines that a

App. 24

person or entity is operating or maintaining a provider

without obtaining a license and determines that a condition exists that poses a threat to the health, safety,

or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed

against a licensee as specified in this part, authorizing

statutes, and agency rules.

(7) Any person aware of the operation of an unlicensed provider must report that provider to the

agency.

App. 25

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH

CARE ADMINISTRATION,

Petitioner,

vs.

Case No. 17-5769

REHABILITATION CENTER

AT HOLLYWOOD HILLS,

LLC,

Respondent.

/

RECOMMENDED ORDER

(Filed Nov. 30, 2018)

Pursuant to notice, a final hearing was held on

January 29 through February 1; March 1, 2, 5 through

9, 19 through 22, 26, 28 and 29; and May 24 and 25,

2018, before Mary Li Creasy, a duly-designated Administrative Law Judge of the Division of Administrative

Hearings (“DOAH”).

APPEARANCES

For Petitioner:

Stephen A. Ecenia, Esquire

J. Stephen Menton, Esquire

Gabriel F. V. Warren, Esquire

Tana D. Storey, Esquire

Jennifer F. Hinson, Esquire

David Mark Maloney, Esquire

Rutledge Ecenia P.A.

App. 26

119 South Monroe Street,

Suite 202

Post Office Box 551

Tallahassee, Florida 32301

For Respondent: Geoffrey D. Smith, Esquire

Susan Crystal Smith, Esquire

Corrine T. Porcher, Esquire

Timothy Bruce Elliott, Esquire

Smith & Associates

3301 Thomasville Road,

Suite 201

Tallahassee, Florida 32308

Stephen B. Burch, Esquire

Smith & Associates

1499 South Harbor City

Boulevard, Suite 202

Melbourne, Florida 32901

Julie W. Allison, Esquire

Julie W. Allison, P.A.

225 South 21st Avenue

Hollywood, Florida 33020

STATEMENT OF THE ISSUES

The issues to be determined in this case are

whether Respondent, Rehabilitation Center at Hollywood Hills, LLC (“Hollywood Hills”), violated Florida

law as alleged in the Amended Administrative Complaint filed by the Agency for Health Care Administration (“AHCA” or “Agency”); and, if so, what sanctions

should be imposed.

App. 27

PRELIMINARY STATEMENT

On October 3, 2017, AHCA issued a four-count Administrative Complaint charging Hollywood Hills with

multiple violations of Florida law and seeking permanent revocation of its nursing home license. The allegations arose from the alleged failure by Hollywood

Hills, after an air conditioning (“A/C”) outage caused

by Hurricane Irma, to comply with its duty to protect

its residents and provide a safe environment, which

AHCA asserts led to the deaths of at least eight residents, the evacuation of the facility, and the declaration of a mass casualty incident (“MCI”).

Hollywood Hills requested a formal administrative hearing and AHCA forwarded this case to DOAH

on, or about, October 16, 2017. By agreement of the

parties, the final hearing was initially scheduled for

January 2 through 5 and 8 through 12, 2018. Without

objection, the hearing was rescheduled for January 29

through February 2; March 1, 2, 5 through 9, 19

through 22, 26, 28 and 29, and May 24 and 25 2018.

On December 22, 2017, AHCA filed a Motion for

Leave to Amend Administrative Complaint (“Motion”)

to include four additional resident deaths as a result of

the investigation conducted by the Broward County

Medical Examiner’s (“ME”) Office. AHCA also sought

to add allegations related to patients who had not

passed away in the aftermath of the storm, but were

nonetheless adversely affected by the conditions in the

facility. The four additional deaths arose from the same

underlying conditions and events as the eight deaths

App. 28

referenced in the original Administrative Complaint.

On January 5, 2018, the undersigned granted the Motion, in part, and allowed the additional allegations related to deceased residents 9 through 12 be added to

the Administrative Complaint (hereinafter referred to

as the “Amended Complaint”). The remainder of the requested amendments were denied.

At hearing, AHCA presented the testimony of the

following witnesses from the Hollywood Hills Fire Rescue and Beach Safety Department (“HFR”): Lieutenant (“Lt.”) Amy Parrinello; Captain Andrew Holtfreter;

Battalion Chief Robert Ladwig; Lieutenant Brian

Ettinger; Lieutenant Christopher Sullivan; Lieutenant

Sidney Doret; Firefighter Luis Santana; and Firefighter Craig Wohlitka; from the City of Hollywood Police Department (“HPD”): Lieutenant Jeff Devlin; and

the deposition of Detective Robert Knapp; from the

Palm Beach County Sheriff ’s Office: Deputy Officer

Xavier Pastrana; from Memorial Regional Hospital

(“MRH”): Judy Frum, Chief Nursing Officer; Tracy

Meltzer, Director of Nursing of Trauma Services and

Critical Care; Randy Katz, MD, Medical Director for

MRH Adult Emergency Room Department and Medical Director for HFR; from Joe Dimaggio Children’s

Hospital: Doug Lamendola, Director of Emergency Services; from Broward County Medical Examiner’s Office: Dr. Wendolyn Sneed, Associate Medical Examiner;

Dr. Marlon S. Osbourne, Associate Medical Examiner;

and Investigator Orlando Portillo; from AHCA: Arlene

Mayo-Davis, Field Office Manager; Anne Sosiak, RN,

Surveyor; and Kathy Allen, RN, Surveyor. AHCA also

App. 29

presented the testimony of the following expert witnesses: Terry Goodman, who was accepted as an expert

on nursing home administration and management; Dr.

Nanette Hoffman, expert in geriatrics; W. Scott Crawford, who was accepted as an expert in mechanical

engineering and Heating, Ventilation, and Air Conditioning (“HVAC”) systems; and Kathryn Hyer, PhD,

MPP, who was accepted as an expert on nursing home

quality of care and nursing home disaster preparedness, planning and evacuations.

Hollywood Hills presented the testimony of the

following witnesses: Natasha Anderson, CEO of Larkin; James Williams, building maintenance supervisor;

Maria Castro, Director of Nursing (“DON”); Jorge Carballo, Nursing Home Administrator; and Sergio Colon,

RN, night shift supervisor. Hollywood Hills also presented testimony from the following experts: David

Dosa, MD, who was accepted as an expert on nursing

home evacuations; Douglas Casa, who was accepted as

an expert on heat-related illnesses; Andrew Grundstein, who was accepted as an expert on climatology;

Dennis Mileti, PhD, who was accepted as an expert on

disaster preparedness; Jeffrey Jentzen, MD, who was

accepted as an expert in forensic pathology and medical examination to determine cause of death; Connie

Cheren, who was accepted as an expert on nursing

home administration; David Deveraux, who was accepted as an expert on health care administration; and

Nick Ganick, who was accepted as an expert on facility

assessment and physical plant diagnosis. Hollywood

Hills submitted the deposition testimony of Orlando

App. 30

Suarez, corporate representative for the surveillance

cameras at Hollywood Hills; and the video depositions

of Sylvia Pistoia, a former resident; Richie Pistoia, Ms.

Pistoia’s son; and Loretta Lynn, a former resident.

AHCA exhibits 5, 7, 13, 15, 16, 31, 32, 34, and 52

through 56 were admitted into evidence. Exhibits 2

and 3 were proffered, but not admitted.

Hollywood Hills offered the following exhibits

which were admitted into evidence: 1, 2 (partial), 3, 7,

8, 15 through 17, 21, 24 through 26, 28 through 31, 35,

40, 42, 45 through 48, 74, 76 through 81, 89, 91, 93

through 95, 97 (list only), 98, 99, 111 (except page 31),

112 through 117, 119, 121 through 126, 139, 156, 186

through 188, 190, 192 through 203, 226 through 228,

230, 232, 233, 241, 243 (only Exhibit 17 from deposition

transcript), 245, 246, 248, 254 through 256, 266, 279,

324, 327, and 329 through 331. Hollywood Hills’ Exhibits 6, 32 through 34, 43, 96, 105, and 183 were proffered, but not admitted.

The Transcript of the hearing consisted of 21 volumes and was filed on June 15 and 28, July 18, and

August 6, 2018. Both parties requested and were

provided an extended period in which to file their proposed recommended orders. The proposed recommended orders were considered in the preparation of

this Recommended Order.

Except as otherwise indicated, citations to Florida

Statutes or rules of the Florida Administrative Code

refer to the versions in effect at the time of the alleged

violations.

App. 31

FINDINGS OF FACT

The Parties

1. AHCA is the licensing and regulatory authority that oversees skilled nursing facilities (also known

as nursing homes) and enforces the state statutes and

rules governing such facilities. See Ch. 408, Part II;

and Ch. 400, Part II, Fla. Stat.; Fla. Admin. Code Ch.

59A-4.

2. Hollywood Hills is a nursing home located in

Hollywood, Florida, with a licensed capacity of 152

beds. It shares a building with Larkin, a mental health

facility. The facilities are separated by locked hallway

corridor doors. They share an A/C chiller. Hollywood

Hills currently holds AHCA nursing home license

number 1238096. Hollywood Hills is located across a

parking lot from MRH. As a licensed nursing home,

Hollywood Hills has an obligation to provide a safe environment and reasonable access to care to the residents who reside in the facility.

Hurricane Irma

3. On September 4, 2017, Florida Governor Rick

Scott declared a state of emergency due to the approach of Hurricane Irma. As the hurricane intensified

and landfall was anticipated in Florida, an estimated

6.5 million Floridians were ordered to evacuate, mostly

those living on barrier islands, in coastal areas, and in

low-lying or flood-prone areas.

App. 32

4. Hurricane Irma first made landfall in the Florida Keys on September 10, 2017, as a Category 4 hurricane1/ with winds of 130 miles per hour. Irma

weakened to Category 3 intensity before making its final landfall later that day in Marco Island, Florida,

with sustained winds of 115 miles per hour. Irma continued to weaken as it passed east of Tampa and

moved northeast across the state, although it retained

a large wind field with most of Florida experiencing

gale force winds. More than 7.7 million homes and

business in Florida were left without electricity in the

wake of the storm.

5. AHCA’s Deputy Secretary Molly McKinstry

testified the power outages were the most extreme she

had ever seen, leaving more than 245 Florida nursing

homes without power. Nursing homes without power

and with inadequate cooling was a “pervasive” problem.

Hollywood Hills’ Pre-Storm Preparation

6. Hollywood Hills had a Comprehensive Emergency Management Plan (“CEMP”), approved by the

Broward County Division of Emergency Management.

AHCA was provided an opportunity to review and

1

The Saffir-Simpson Hurricane Wind Scale is a 1 to 5 rating

based on a hurricane's sustained wind speed. This scale estimates

potential property damage. Hurricanes reaching Category 3 and

higher are considered major hurricanes because of their potential

for significant loss of life and damage.

App. 33

comment on Hollywood Hills’ CEMP prior to its approval, but did not review it or seek any changes to it.

7. There are no allegations in the Statement of

Deficiencies or Amended Complaint that Hollywood

Hills did not follow its CEMP, which provided, “Patient

relocation and evacuation is inherently dangerous to

patients and staff and is to be undertaken only when

conditions of the environment cannot support care,

treatment, and/or services.” Throughout the year, Hollywood Hills’ staff conducted emergency training drills

in accordance with its CEMP and provided monthly

and quarterly training to staff, including drills on hurricanes. The CEMP was approved through August 6,

2018. Notably absent from the CEMP was any plan of

action for an extended loss of A/C.

8. On September 4, 2017, Hollywood Hills activated its emergency plan per its CEMP after Governor

Scott declared the state of emergency. From September

5 through 9, 2017, Hollywood Hills’ staff participated

in the nursing home industry’s hurricane preparedness calls hosted by AHCA and coordinated with State

and local emergency management officials, the Florida

Health Care Association, and Governor Scott. On these

calls, nursing homes were given emergency contact

numbers, including Florida emergency management

telephone numbers, AHCA emergency telephone numbers, and cell phone numbers of key AHCA employees.

Governor Scott also gave his personal cell phone number, encouraging nursing homes experiencing problems to call him for help.

App. 34

9. Hollywood Hills staff took action to prepare

for the storm, including: (a) securing a sufficient supply of food, water, and patient care supplies; (b) stocking up on common hurricane supplies; (c) physically

preparing the facility by taping and boarding up doors

and windows; (d) renting ten spot coolers2/ and purchasing fans; (e) ensuring the generator was working

properly and had adequate fuel for seven days; (f ) initiating an Alpha/Bravo team schedule with staffing ratios above all federal and state requirements; (g)

lowering the A/C; and (h) monitoring evacuation orders.3/

10. On Friday, September 8, 2017, as the storm

approached, Hollywood Hills staff activated its Alpha

team, which was designated to shelter with the residents until Monday after the storm passed.

Hollywood Hills’ Actions September 9 and 10, 2017

11. On Saturday, September 9, 2017, Broward

County started to feel the effects of Hurricane Irma.

The Alpha team, consisting of Hollywood Hills’ Administrator, DON, Building Supervisor, Director of Patient

Care Services, Activities Director, and other supervising directors, as well as full nursing care teams, continued to shelter in place with residents.

2/

Hollywood Hills tried to rent 20 spot coolers but was only

initially able to obtain ten spot coolers because supplies were limited.

3/

Hollywood Hills was never under a mandatory evacuation

order.

App. 35

12. On Sunday, September 10, 2017, at about

3:30 p.m., a fuse to the transformer on a power pole

that provided power to the A/C was dislodged. Hollywood Hills never lost electrical power. Jorge Carballo,

Administrator, and James Williams, Building Supervisor, immediately notified Florida Power & Light

(“FP&L”) and requested priority restoration. In a recorded call at 3:40 p.m., Mr. Williams advised FP&L this

was an “emergency.” He notified FP&L they just

needed to put the fuse back in place. The tropical storm

force winds subsided early Sunday evening in Broward

County. Hollywood Hills had no damage, other than

the loss of A/C.

13. Because the Building Supervisor lowered the

temperature in the building prior to the storm as a precaution against the loss of A/C, the facility reportedly

remained in the lower 70s throughout Sunday night.

Multiple witnesses testified there was no observable

difference in temperatures until after midnight. However, due to the lack of A/C, the DON, Maria Castro,

instructed staff to monitor residents closely, make continuous hydration rounds, and notify the nursing supervisor immediately if residents had changes in

conditions. Her personal observation was that the facility remained cool throughout Sunday.

14. Nursing home patients are generally very

vulnerable and it is well known that a disruption to

their normal daily routine, such as by an evacuation,

results in a higher risk of mortality. The clinical literature shows nursing home residents may double their

risks of dying and quadruple their risks of

App. 36

hospitalization by evacuating. However, at no time did

the administration of Hollywood Hills discuss the possible evacuation or selective evacuation of residents

due to the loss of power to the A/C.

15. Although multiple experts testified at the final hearing that “shelter in place until it is no longer

safe to do so” is the standard of care in the nursing

home industry during a hurricane, no testimony was

presented to show that Hollywood Hills undertook an

evaluation at any time after the loss of A/C whether it

was more dangerous to relocate or evacuate patients

versus continuing to stay in place indefinitely while

waiting on restoration of power to the A/C.

Hollywood Hills’ Actions on September 11, 2017

16. Shortly after midnight on Monday, September 11, 2017, when the A/C lost residual cooling capacity, spot coolers and fans were deployed. Initially, there

were ten spot coolers. Mr. Williams put three on the

second floor of Larkin, three on the second floor of Hollywood Hills, and four on the first floor of Hollywood

Hills. Staff and patients were directed to keep the windows closed to maintain the cooling effect in the building.

17. The spot coolers on the first floor were set up

to blow cooled air into the common hallways. The spot

coolers on the first floor were vented into the ceiling

above the first floor to discharge hot air. This space was

essentially a closed fireproofed box, trapping the

heated air between the first and second floors, heating

App. 37

the second floor slab, and allowing some discharge of

hot air back into the first floor through porous ceiling

tiles. The spot coolers on the second floor were also

placed to cool the nursing stations and hallways. The

heated air generated by the second floor spot coolers

was vented into the plenum between the second floor

and roof which had minimal ventilation to the outside.

18. Hollywood Hills occupied more of the first

floor than the second floor. However, the first floor of

Hollywood Hills primarily consisted of short-term rehabilitation patients. The second floor consisted of

long-term nursing home patients, many of whom were

bed-bound or had significant difficulty ambulating,

and difficulty verbalizing their needs.

19. On Monday, September 11, 2017, Administrator Carballo told Mr. Williams to monitor the facility temperatures and let him know if any exceeded 80

degrees. Mr. Williams used an infrared surface temperature gun to take temperatures throughout the facility,

primarily in the common areas. He also observed the

ambient air temperatures displayed on the spot coolers. Mr. Carballo observed Mr. Williams taking temperatures and he never reported any temperatures

exceeded 80 degrees. During Monday, the temperatures Mr. Williams observed were in the mid to upper

70s, and his perception was the facility felt comfortable, despite him wearing long pants and doing physically demanding work.

20. Mr. Carballo remained in the facility until

around 7:00 p.m. on Monday. Throughout the day, he

App. 38

was also personally monitoring ambient air temperatures in the facility with a handheld thermometer and

observing the ambient air temperatures reflected on

the spot coolers. The temperatures he observed never

exceeded 80 degrees. His perception was the facility

was a little bit warm, but comfortable.

21. Mr. Carballo was not recording his temperature readings, but Mr. Williams testified he was recording the readings he personally took. Mr. Williams

testified his temperature logs disappeared when police

confiscated multiple items from his office. However, no

temperature logs were discovered by the police, casting

serious doubt on the credibility and accuracy of Mr.

Williams’ testimony regarding monitoring temperatures.

22. At 11:00 a.m. on Monday, Broward County issued the “all clear” alert. Hollywood Hills reopened its

facility to families and visitors. Multiple health care

providers, including physicians, nurses, other clinical

staff, and EMS personnel, were in the facility on Monday. There were no complaints to AHCA or the Department of Children and Families (“DCF”) regarding the

climbing temperatures within Hollywood Hills. This is

significant because licensed health care providers, including physicians, nurses, and paramedics, are required by Florida law to report any dangerous

conditions potentially affecting nursing home residents.

23. On Monday afternoon, the Alpha team began

to be relieved by the Bravo team. Each Alpha team

App. 39

clinician had to be replaced with a Bravo team clinician. Instructions about monitoring patients closely,

continuously offering hydration, and reporting any

changes to the nursing supervisor were given to the

Bravo team. However, the nursing notes are devoid of

any confirmation that these instructions were actually

followed.

24. The Bravo team had day and night shift

nursing supervisors. Milina Tellechea, an Advanced

Registered Nurse Practitioner (“ARNP”), who had

worked at Hollywood Hills for over ten years, was the

daytime nursing supervisor. Sergo Colin, the night

shift nursing supervisor, was employed at the facility

for only a few weeks when Hurricane Irma hit. Although Mr. Colin had 17 prior years of experience as a

licensed paramedic, and 11 years as an RN, as of September 11, 2017, he had little to no familiarity with the

patients or the staff of Hollywood Hills.

25. Hollywood Hills continued its efforts to get

the A/C restored. Staff contacted FP&L multiple times

on Monday. Staff also contacted multiple state and local emergency call lines, AHCA, and called the Governor’s cell phone, without receiving a response.

26. On Monday evening, at 5:36 p.m., Natasha

Anderson, the CEO of Larkin, called the Florida 1-800

emergency number she had been provided on the prestorm industry calls. The person she spoke with gave

her the Tallahassee emergency management number

to call, which she did at 5:39 p.m. She spoke with a

person named “George” who assured her he would

App. 40

make sure the A/C restoration was escalated. Ms. Anderson conveyed this information to Mr. Carballo.

27. Ms. Anderson followed up with the state

emergency operations center at 6:57 p.m. and spoke to

“George” again, who assured her the matter had been

made a priority and the restoration was being escalated. She spoke with the emergency operations center

three more times that evening at 7:29 p.m., 9:24 p.m.,

and 9:57 p.m. Each time, she emphasized the urgency

of getting the A/C restored, and each time she was assured they understood and were working on it.

28. Beyond calling FP&L and others, Hollywood

Hills’ staff also tried unsuccessfully to pursue other

means of getting the A/C restored, including: physically chasing a FP&L truck seen driving by, trying to

hire an independent electrician to fix the fuse, and contacting an engineer to see if the facility’s generator

could be configured to operate the chiller or another

generator could power the A/C.

Hollywood Hills’ Actions and the Events of September 12, 2017

29. Hollywood Hills staff members communicated with each other before, during, and after the

storm on a group messaging service, “WhatsApp,”

which included key members of the Hollywood Hills

management and staff, including Mr. Carballo, DON

Castro, Mr. Williams, and others. These messages reveal there were increasing concerns about the impact

of the conditions in the facility by at least the morning

App. 41

of Tuesday, September 12, 2017. At 9:40 a.m. on Tuesday morning, Mr. Carballo ordered no more resident

admissions until the A/C was restored and asked the

staff to secure more fans.

30. Shortly thereafter at 9:58 a.m., Jocelyn Rosario, director of housekeeping and building services,

informed the messaging group that the “patients don’t

look good” and “we need fans.” Despite this alarming

message, Hollywood Hills’ management and supervisors did not follow up with staff present at the facility

to determine which patients showed signs of distress

from the heat.

31. Mr. Carballo also asked the affiliated corporate entities to use their purchasing officers to assist

in finding more spot coolers to rent. They also contacted the “Broward Coalition” made up of multiple

hospitals and health care entities in the nearby area to

borrow spot coolers. Hollywood Hills staff was able to

purchase six large industrial fans (three round orange

ones and three five-foot pedestal ones) and 20 box fans.

Larkin borrowed four additional spot coolers from

MRH, allowing one of the spot coolers it already had to

be relocated to the Hollywood Hills’ side of the building. By 7:00 p.m. on Tuesday, the multiple additional

fans and spot coolers had been assembled and deployed.

32. Later that morning, Ms. Tellechea, nursing

supervisor for the day shift, notified the group that the

residents “had a difficult night.” She advised that the

facility continued to be without A/C and ice, and

App. 42

suggested that staff try to buy ice for the residents.4/

Ms. Tellechea also stated that it was too hot in the facility to conduct normal therapy operations. Again, no

Hollywood Hills management or supervisors responded to this warning or directed specific actions be

taken to protect the patients.

33. Only minutes after Ms. Tellechea sent this

warning to the Hollywood Hills staff, HFR was dispatched to Hollywood Hills for Resident 11. HFR Crew

31 was dispatched to Hollywood Hills in response to a

call regarding a resident with a breathing problem.

HFR Crew 31, consisting of Lieutenant Amy Parrinello, Luis Santana, and Craig Wohlitka, arrived at the

scene shortly before 1:00 p.m. Upon arrival, they found

Resident 11, a 93-year-old man, unresponsive and in

serious condition with labored breathing. EMS noted

Resident 11’s skin temperature at the scene was hot to

the touch.

34. While in the building, the HFR crew noticed

the temperature inside the facility was hot. Lt. Parrinello and her team asked the Hollywood Hills staff

about the temperature and were told the A/C was

down, but Hollywood Hills was working on it.

35. HFR promptly brought Resident 11 to MRH

where he was treated by Dr. Randy Katz, an emergency

room physician and the HFR Medical Director. MRH is

directly across the street from Hollywood Hills. When

4/

Although Hollywood Hills’ ice-makers were operational,

the facility was under a boil water precaution that precluded it

from using the ice from the ice machines.

App. 43

he arrived at the MRH emergency room, Resident 11’s

core body temperature was measured at 106.5 degrees.

HFR expressed their concerns about the lack of A/C in

the facility to medical personnel at MRH, including Dr.

Katz.

36. Dr. Katz diagnosed Resident 11 with heatstroke and severe sepsis based on the lack of A/C

within the facility and the high outside environmental

temperature. Resident 11’s condition prompted Dr.

Katz to direct MRH’s social worker to reach out to Hollywood Hills and determine if the facility had similar

issues with other residents. Resident 11 ultimately

died five days later after the initial treatment he received on September 12, 2017.

37. At 1:53 p.m. on September 12, 2017, DON

Castro issued another warning to the message group

that “the residents upstairs are having a really hard

time.” Efforts to get FP&L to restore the A/C were intensified on Tuesday, including multiple calls to FP&L,

AHCA, and state and local emergency management

centers. Collectively, Mr. Carballo, Ms. Anderson, and

Mr. Early called the Governor’s cell phone four times

on Tuesday between 9:00 a.m. and 5:00 p.m., leaving

voicemails asking for help.

38. In contrast to the increasing concerns expressed in the WhatsApp messages, Mr. Carballo testified, no one expressed concerns about the facility

temperature or suggested evacuation on Tuesday. He

was aware multiple physicians were there throughout

the day. He observed Brian James, the physician’s

App. 44

assistant to Dr. Ibraham, Hollywood Hills’ Medical Director, rounding on patients as late as 9:30 p.m. that

night. He was also aware Dr. Wayne Evancho, Dr.

Frances Cadogan, and another physician assistant for

Optum had rounded on their patients that day as well.

Mr. Carballo testified if these physicians had concerns

about their patients’ safety, they would have contacted

him.

39. When Mr. Carballo left at about 11:00 p.m.,

the outside air temperature was about 83 degrees. He

assumed the facility would continue to cool because it

was nighttime. He planned to come back to the facility

early in the morning to reassess the situation with the

clinical staff. Mr. Carballo’s testimony, that he had no

reason to suspect the temperature in the facility would

increase or that anyone was in danger, is not credible

in light of the WhatsApp messages, and the fact that

no air temperatures were apparently being taken after

Mr. Williams left the facility at 6:30 p.m. on September

12.5/

5/

Hollywood Hills staff claim that temperatures were monitored in the facility throughout Tuesday, September 12, 2017, until 11:00 p.m. and that they believed the building was maintaining

and had not exceeded 80 degrees. However, the testimony demonstrated that Mr. Carballo had no thermometer with him on Tuesday, and he only checked the temperatures displayed on the spot

coolers. This location, directly on the machine, near the cooling

vent, certainly is not a representation of what the temperatures

in the patient's rooms must have been. Notably, the last temperatures purportedly taken by Mr. Williams on the second floor

were at approximately 4:00 p.m. on September 12, 2017.

App. 45

40. By Tuesday, September 12, 2017, Hollywood

Hills was aware of the rising temperature and the potential dangers posed to the residents – some of whom

had already been identified as impacted by the conditions in the facility. Despite clear evidence that the

heat was affecting the residents, Hollywood Hills failed

to document any efforts to provide extra care or monitoring to the residents, nor was the staff instructed on

how to monitor and care for the residents more effectively, or to prepare for possible evacuation of the facility.

September 13, 2017, Events Prior to the Evacuation

41. HFR Crew 31 returned to Hollywood Hills in

the early morning of September 13, 2017, responding

at 3:07 a.m. to a report of a resident with cardiac arrest

who was not breathing and did not have a pulse. Additional HFR backup also responded to assist. The HFR

crews vividly testified about the hot conditions in the

facility. One first responder described the temperature

inside the facility as “ungodly hot.” When the staff at

Hollywood Hills was questioned about the heat, they

again replied they were working on the A/C.

42. When HFR arrived, Resident 1 was completely undressed, not wearing any clothes, and had a

fan blowing on her. HFR measured Resident 1 to have

a tympanic temperature of 107.5 degrees. Lt. Parrinello and Firefighter Wohlitka testified that they had

never seen a patient with a temperature that high.

HFR categorized Resident 1 as a sepsis alert – the

App. 46

same alert noted for Resident 11, who was transported

to the emergency room in the early afternoon of September 12, 2017. A “sepsis alert” is not a medical diagnosis. HFR protocol for initiating a severe sepsis alert

is a temperature greater than 104 degrees, a heart rate

greater than 90, a respiratory rate greater than 20, a

history of urinary tract infection, an altered level of

consciousness, and acute change in mental status. Resident 1 met all of these criteria.

43. HFR documented, in this and subsequent

run reports, the lack of A/C and hot conditions in the

facility. Lt. Parrinello explained, “I noted it because it

was unusual and it was ongoing; it was hot in the facility. I wanted to document that they didn’t have air

conditioning.” HFR accepted the representations of the

Hollywood Hills staff members, including the nursing

supervisor at the time for Hollywood Hills, that the A/C

was being worked on and adequate steps had been

taken to protect the patients.

44. After transport to and treatment at MRH

Emergency Room, Resident 1 ultimately expired several hours later.

45. Less than thirty minutes after transporting

Resident 1 and leaving MRH, HFR Crew 31 was dispatched back to Hollywood Hills. Shortly after HFR arrived back at Hollywood Hills at 4:00 a.m., Resident 2

went into cardiac arrest. HFR noted the A/C was still

not functioning and “the facility was still hot.”

46. When HFR found Resident 2, she was nonverbal, had labored breathing, was hot to the touch,

App. 47

had vomit in her mouth, and had a tympanic temperature of 107.5 degrees. The credible testimony and documentation from HFR contrast sharply with

Hollywood Hills staff notes that Resident 2 was “awake

and alert” without any vomiting or other signs of distress. Despite their many years of experience, the

members of HFR Crew 31 had never seen two patients

in the same facility with temperatures at this level

within such a brief period of time. Resident 2 was immediately transported to MRH, where she died later

that day.

47. The first responders present at the facility in

the early morning hours of September 13, 2017, universally confirmed it was hotter inside the facility than

outside. They explained that they felt extreme heat

upon entering the Hollywood Hills facility, and testified that the heat within the facility was unbearable

and uncomfortable. This is consistent with video of the

staff during the same hours (late September 12, 2017,

and early September 13, 2017), who are seen visibly

sweating through their scrubs. All but one of the 12 deceased residents delineated in the Amended Complaint resided on the second floor of the facility, which

was described by the first responders as noticeably hotter than the first floor.

48. After transporting Resident 2 to MRH and

noting the unprecedentedly high patient temperatures, Lt. Parrinello contacted DCF to report the facility conditions and the impact on the residents. Lt.

Parrinello reported to DCF the residents were exposed

App. 48

to hot conditions “like a sauna” at Hollywood Hills,

with no A/C and only limited fans to cool the residents.

49. While Lt. Parrinello was alerting DCF, HFR

received another dispatch call to respond to Hollywood

Hills. HFR Crew 31 returned to Hollywood Hills,

where they found the night charge nurse, Sergo Colin,

administering cardiopulmonary resuscitation (“CPR”)

to Resident 4 in Room 226.

50. HFR immediately determined that Resident

4 was already deceased. Resident 4 was in a state of

rigor mortis when HFR arrived. Firefighter Wohlitka

determined Resident 4 was dead upon his entry to the

room after finding no pulse and attempting to move the

resident’s left arm, which did not move due to stiffness.

It typically takes at least several hours for rigor mortis

to set in within the body. This strongly suggests that

the staff was not rounding on patients regularly and

providing water and ice.

51. HFR’s observations overwhelmingly contradict the claims by Hollywood Hills’ staff that Resident

4 was awake or alert in a normal capacity approximately an hour prior to EMS arriving. The clear video

evidence shows Hollywood Hills was not monitoring

Resident 4. No one entered Room 226 for nearly seven

hours between approximately 10:00 p.m. on September

12, 2017, and 5:00 a.m. on September 13, 2017, when

he was found by housekeeping staff during routine

housekeeping operations.

52. HFR Captain Andrew Holtfreter responded

to the facility shortly before 6:00 a.m. As he arrived on

App. 49

the second floor, a Hollywood Hills staff member frantically waved for EMS assistance. When he entered

Room 226 on the second floor of the facility, Captain

Holtfreter discovered Resident 5 deceased in his bed.

Captain Holtfreter immediately issued a Signal 7 code

over the HFR radio system to alert other crew members, signifying contact with a deceased resident.

53. At 6:21 a.m., another HFR crew arrived at

the Hollywood Hills facility in response to a distress

call for Resident 8. Resident 8 had a tympanic temperature so high that the thermometer commonly used by

EMS did not display an actual temperature, but instead simply read “HI.” According to the thermometer

manual, this meant the tympanic temperature of Resident 8 was higher than 108 degrees, which the HFR

crew had never before seen.

54. While HFR Crew 31 was attempting to treat

and stabilize Resident 8, another resident in the facility was discovered in serious respiratory distress. Resident 8 was transported to MRH. HFR Crew 105

attended to the resident with respiratory distress

while HFR Crew 31 transported Resident 8, who had

gone into cardiac arrest. Additional HFR units were

dispatched to Hollywood Hills to assist with the residents.

55. At 6:30 a.m. on September 13, 2017, MRH

nurses Judy Frum and Tracy Meltzer learned that a

third Hollywood Hills resident had presented to

MRH’s emergency room with an extremely high temperature. The experienced MRH staff had never seen

App. 50

multiple patients with temperatures in excess of 105

degrees, like those at Hollywood Hills. In light of the

escalating situation, the nurses became extremely concerned for the safety of the residents and walked over

to the Hollywood Hills facility to assess the situation

firsthand.

56. Ms. Meltzer credibly described the conditions

in Hollywood Hills facility when she exited the elevator to the second floor as, “there was like a blast of heat

like when you open your car door at the end of the day

after it’s been sitting out.”

57. MRH staff and HFR vividly described the

scene at Hollywood Hills on September 13, 2017, to include Hollywood Hills staff visibly sweating from the

heat and overwhelmed by the number of critical patients. Staff was heard shouting, “they are dropping

like flies.” Patients were disoriented and visibly uncomfortable inside the facility. One resident was found

in a fetal position on a mattress with no sheet, in a diaper “saturated with urine and feces,” hot and visibly

sweating.

58. HFR and MRH first responders quickly recognized that the residents were in extreme distress

and it was not safe for them to remain inside the facility. After Resident 4 was found deceased, HFR and

MRH staff concluded that other patients were potentially in danger.

59. Earlier that morning, Hollywood Hills staff

members had discouraged HFR from checking on other

residents. Staff members told HFR that they

App. 51

conducted rounds and every resident was within normal limits. However, given the unfolding events, Lt.

Parrinello rejected the contention by Mr. Colin, night

shift supervisor, that the staff had already checked on

the other patients and that everyone was okay, telling

him, “you told me that before and now we have multiple deceased patients so with all due respect I don’t

trust your judgment and we’re going to check on everyone ourselves.”

60. HFR and MRH staff all agreed that evacuation of the Hollywood Hills facility was necessary to

protect the residents. HFR Battalion Chief Robert

Ladwig assumed command and was in charge of operations at the commencement of the evacuation. After

assuming command and assessing the totality of the

situation, Chief Ladwig determined the situation to be

a Level 3 MCI involving immediate harm or threat to

human life. Chief Ladwig had never before in his career experienced a single facility that had endangered

patients as he witnessed at Hollywood Hills.

61. Captain Holtfreter was put in charge of the

second floor, and he reported his findings via radio to

Chief Ladwig. Captain Holtfreter also had never seen

a situation like this before. He remained on the second

floor until all of the residents were evacuated from the

facility. No other facility in Florida experienced a MCI

after Hurricane Irma.

62. MRH’s DON Meltzer initiated a “green alert”

at MRH to notify staff that multiple critical patients

from Hollywood Hills would be arriving for immediate

App. 52

care. MRH staff immediately prepared and organized

the emergency department with equipment, supplies,

intravenous solutions, lab tools, and other supplies to

treat the arriving residents. From what she had personally observed, Nurse Meltzer determined a majority of the residents on the second floor needed medical

attention. Nurse Meltzer alerted MRH that approximately 50 Hollywood Hills residents would be transported to the hospital for care and treatment of heatrelated illnesses.

September 13, 2017 – The Evacuation Process

63. Dozens of MRH staff members arrived at the

facility to assist with the evacuation of the residents.

HFR and MRH staff went room to room on the second

floor of the facility to check on each resident. Based on

what they discovered regarding the condition of the

residents, they made the immediate decision to evacuate all residents from the hot environment. First responders credibly testified that the only appropriate

action was to remove the residents from the life-threatening heat in the facility.

64. The second-floor residents were evacuated

first because of the extremely high temperatures. HPD

officers arrived at the facility to assist with transport

of critical patients out of the hot building. Hollywood

Hills staff also worked with first responders to move

the patients out of the building. Lt. Jeff Devlin, as well

as Dr. Katz, testified that upon their arrival at 7:30

App. 53

a.m. during the evacuation of the facility, it was hotter

inside than outside of the facility.

65. Many MRH staff members ran to the nursing

home to assess critical patients as quickly as possible,

including Dr. Katz. Residents were triaged and moved

from the facility to MRH if they needed critical care.

Residents who did not need immediate acute care were

taken outside in front of the facility where numerous

medical personnel triaged and attended to them.

66. Homicide detectives from HPD soon arrived

at the facility to begin investigating the deaths of the

residents and the conditions of the facility. As explained by Lt. Devlin, “in this instance multiple deaths

under suspicious circumstances, there is always a potential for a crime scene.” After the evacuation was

completed, the facility was quickly designated a crime

scene and sealed off.

67. Lt. Parrinello explained that “the conditions

in the facility were contributing to the seriousness of

the patients.” Captain Sullivan described the conditions inside Hollywood Hills as being comparable to

“toxic gas” inside the building, “it was an unsafe, dangerous environment for the people who were there, and

they needed to be removed.” The first responders relied

on their training to handle the critical situation and

moved quickly to save the residents. Firefighter

Wohlitka tearfully and credibly testified that, “the lack

of care that [the residents] were experiencing, in all

honesty, this call still very much haunts me. Fourteen

people had to die to see the lack of care these people

App. 54

were receiving and just frustration over trying to do as

much as we could for as many as we could.”

68. The first responders who assisted with the

evacuation of the facility provided convincing testimony of the need to evacuate the facility, and established that the evacuation and triaging of the residents

was handled appropriately and in an organized manner, given the size of the facility and the number of patients.

69. Contrary to the position asserted by some of

Hollywood Hills’ witnesses, there was a very systematic approach utilized by the first responders to coordinate the evacuation and triage of all of the residents in

the facility. The overall scene was described as “controlled chaos.” There had been no decisions or efforts to

evacuate the building or provide needed care to the

residents prior to the arrival of the first responders.

Hollywood Hills staff did not object to the evacuation

of the residents.6/

6/

First responders triaged the residents based on signs of

heat-related conditions, such as mental status, physical exam,

and a quick assessment to decide who needed critical care. Medical personnel used color-coded bands to identify the condition of

the patient. Red was used for patients in critical condition in need

of immediate care. A yellow band indicated the patient did not

have a life-threatening condition, but needed medical attention.

Green bands meant the patient was stable and could wait for reassessment by medical personnel. A black band indicated the patient was deceased.

There were numerous residents identified as red by first responders. Dr. Katz, present during the triaging of the residents,

testified that he observed approximately 20 residents identified

App. 55

70. Undoubtedly, the swift and efficient actions

of the first responders and MRH staff, particularly

Nurses Frum and Meltzer, and Dr. Katz, saved lives

and avoided further catastrophe that day. Any insinuation to the contrary is preposterous.

in critical condition and given red bands. Any resident that was a

red or a yellow code was immediately taken to MRH's emergency

room to receive care. Over 100 residents received care in the MRH

emergency department after the triage process was complete. Of

these residents, 34 were admitted to MRH Hospital. Roughly 70

residents had to be moved to other local hospitals to receive the

care they needed.

First responders ensured that the residents triaged outside

were stationed in areas shaded from the sun. Medical personnel

from MRH performed a second triage of the green coded residents

to assess vital signs, glucose, blood sugar, oxygen saturation, and

other important data. This process continued until the building

was completely evacuated. The green coded residents were ultimately moved to the shade of a nearby MRH parking garage, purposefully away from direct contact with the sun. The parking

garage was equipped with fans and cold water, which were distributed to residents to mitigate the effects of the heat they had

been exposed to inside the building. Later, the green coded residents were taken to MRH’s air-conditioned auditorium until an

appropriate transfer destination to another facility, or with family members, was determined.

Hollywood Hills’ staff members did not provide initial documentation or medical records regarding patient assessments that

they had been doing in the time leading up to the evacuation of

the facility. Ultimately, the facility records were made available

to the medical personnel at MRH.

App. 56

September 13, 2017 – the Initial Investigation

71. By 9:40 a.m. on September 13, 2017, the

evacuation of the facility was complete. Pursuant to

normal HPD protocol for active crime scenes, Hollywood Hills was sealed off by HPD for further investigation. HPD seized numerous medical records and

computers, as well as logs and records from the nurse’s

station and desks.

72. At approximately noon on September 13,

2017, AHCA surveyors Anne Sosiak and Kathy Allen

arrived at Hollywood Hills to inspect the premises and

observe the conditions of the facility. HPD did not allow

the surveyors inside the building, because it was an active crime scene and part of an ongoing criminal investigation. HPD also directed the surveyors not to

contact Hollywood Hills’ patients or their family members.

73. Lt. Devlin of HPD directed detectives and

crime scene technicians to immediately document the

temperatures and placement of the spot coolers within

the facility after the evacuation was over. HPD recorded surface temperatures between 11:00 a.m. and

11:30 a.m. on September 13, 2017, at 11 separate locations on the first and second floors of the facility to get

an overall gauge of the conditions inside the facility.

The facility was noticeably cooler when these temperature readings were taken compared to when HPD

first arrived in the midst of the evacuation of the facility around 7:30 a.m.

App. 57

74. HPD recorded surface temperatures in excess of 100 degrees on the second floor of the facility,

including in the patient rooms. The temperature outside Room 226, where three deceased residents resided, measured 99 degrees. The first floor was also hot,

with temperatures in excess of 96 degrees. Surface

temperature readings are a more stable measure of

temperature than ambient air readings because surface temperature takes longer to heat or cool. Although

direct sunlight or other radiant heat can impact surface temperature readings, none of the temperatures

taken by HPD appeared to be impacted by those factors. The HPD surface temperature readings are a

good proxy for the conditions in the facility because

there were no heating elements in the walls, meaning

the surface temperature was based on the air temperature.

75. Hollywood Hills argues that the outside temperature during the early morning of September 13,

2017, contributed to the high temperatures recorded

by the police. The ambient outside air temperature was

only 79 degrees when the evacuation began at 7:00

a.m. The outside air temperature would actually have

relieved heat in the building when the doors were

opened. The suggestion that the HPD temperature

readings can be disregarded because of the number of

people in the facility during the evacuation is not supported by credible evidence. While the exact temperature in the facility at the time the evacuation took

place cannot be established with certainty, the police

readings and the observations of the first responders

App. 58

provide a sufficient basis to conclude that the facility

was not safe for the frail, elderly residents.

Hollywood Hills’ Patient Deaths

76. The Amended Complaint includes specific allegations related to the deaths of twelve residents in

the facility and general allegations as to the failure of

the facility to provide a safe environment for the other

residents. Clear and convincing evidence was presented in this proceeding to establish that nine of the

twelve residents referenced in the Amended Complaint suffered greatly from the exposure to unsafe

heat in the facility. The ME was called upon, as part of

an ongoing criminal investigation, to conduct an independent review of the deaths of residents from the facility in the aftermath of the loss of its A/C. The results

of the autopsies and investigations by the Assistant

MEs, who testified regarding the cause and manner of

death of the 12 patients identified in this proceeding,7/

provide compelling evidence of the consequences of

Hollywood Hills’ failure to provide its residents with a

safe environment and appropriate access to health

care.

77. The MEs’ conclusions confirm, in many instances, the testimony from AHCA’s expert witness, Dr.

Nannette Hoffman. However, Hollywood Hill’s expert

7/

As used by the ME, "cause of death" refers to the medical

condition, disease, or injury that leads to death. "Manner of

death" refers to whether the death is natural, homicide, suicide,

accidental (unforeseen), or undetermined.

App. 59

pathologist, Dr. Jeffrey Jentzen,8/ credibly and convincingly explained that several patient deaths were too

attenuated in time and lacked sufficient evidence that

their deaths were attributable to, or hastened by, environmental heat exposure at Hollywood Hills. Specific

factual findings related to each of the 12 residents

named in the Amended Complaint, presented in this

proceeding, are set forth below.

Resident 1

78. Resident 1 was an 84-year-old female with

multiple medical conditions, which caused her to be

bedridden and entirely dependent upon nursing staff

for attention and care. On September 13, 2017, HFR

was dispatched to Hollywood Hills at 3:01 a.m. to respond to Resident 1 for cardiac arrest. Upon arrival,

HFR found Resident 1 supine in bed unconscious with

shallow, labored breathing. HFR measured her tympanic temperature to be 107.5 degrees and observed

that her skin was pale, moist, and hot.

79. A temperature of 107.5 is reflective of heatstroke or hyperthermia. It is very unusual for individuals with infections to have body temperatures in that

range. Neither HFR nor Dr. Marlon Osbourne, the Assistant ME, had ever seen a body temperature that

8/

Dr. Jeffrey Jentzen is an expert pathologist and medical

examiner, with over 30-years’ professional experience. Dr.

Jentzen is a co-author of the National Association of Medical Examiner Guidelines for Classification of Manner of Death in Heat

Related Illnesses ("Guidelines") and has reviewed over 100 heatrelated deaths.

App. 60

high in individuals with infections. To lower her body

temperature, HFR immediately started a chilled intravenous (“IV”) saline infusion and applied cold packs to

the axilla and groin.

80. HFR transported Resident 1 to the MRH

emergency department, where her axillary temperature was measured at 105.3 degrees. At MRH, Resident 1 was put on a ventilator and admitted to the

intensive care unit (“ICU”) for hyperthermia and respiratory failure. She died 12 hours after transport to

the hospital.

81. The ME’s Office asserted jurisdiction due to

the circumstances surrounding her death and conducted an autopsy. Dr. Osbourne conducted the autopsy and based upon review of the hospital and

available nursing home records, determined the cause

of death for Resident 1 to be heatstroke due to environmental heat exposure. He attributed the manner of

death as homicide, which means the actions or inactions of others contributed to her death. He concluded

that environmental heat was a significant factor to her

high body temperatures. Dr. Osbourne concluded the

patient was not timely removed from unsafe environmental conditions and other measures to alleviate her

elevated temperature were not taken until it was too

late.

82. Dr. Osbourne did not find Resident 1 to have

any conditions or immediate lethal injury at the time

of her death – other than the conditions at the facility.

Resident 1 did not have any illnesses or disease that

App. 61

would explain her elevated temperature or her death.

She had natural underlying issues consistent with her

age, but there was nothing acutely lethal that would

have led to her death, but for the elevated temperature

and documented diagnosis of hyperthermia.

83. A temperature of 97 degrees on September

12, 2017, is the only temperature reading for Resident

1 in the Hollywood Hills facility records. There is no

time associated with the entry and nothing in the records indicates that additional temperatures were

taken on September 13, 2017. As discussed below,

there are serious questions as to the multiple temperature readings of 97 degrees for a number of Hollywood

Hills’ residents.

84. The video evidence shows Resident 1 was ignored by Hollywood Hills staff and not properly monitored given the dangerous conditions on the second

floor. Resident 1 was never brought down to the first

floor and remained on the second floor until HFR

transported her to MRH.

Resident 2

85. Resident 2 was a 78-year-old female who was

non-ambulatory and completely dependent on Hollywood Hills staff for all activities of daily living, including administration of fluids and food through a PEG

tube. HFR was dispatched to Hollywood Hills on September 13, 2017, at 4:01 a.m. to respond to Resident 2

for a breathing problem. HFR recorded Resident 2’s

tympanic temperature at 107.5 degrees. Her skin was

App. 62

hot to the touch, and she had vomit in her mouth and

on the pillow of her bed.

86. During initial treatment by HFR, Resident 2

became apneic and pulseless, and went into cardiac arrest. She was immediately transported to MRH for

emergency treatment. At MRH, she was documented

to have a rectal temperature of 108.3 degrees. Rectal

temperature is the most accurate measure of internal

body temperature, since it measures the body’s core

temperature. A core body temperature of 108.3 degrees

clearly indicates the patient suffered from heatstroke.

87. Resident 2 died at MRH at 5:00 a.m., shortly

after transport. Prior to being exposed to the hot environment at the facility, Resident 2 was observed in her

usual state of health. The ME’s Office assumed jurisdiction over the case that morning.

88. Although Resident 2 had a number of conditions consistent with old age, such as arteriosclerosis

and emphysema, Dr. Osbourne did not identify any

acute or immediate lethal injury or natural disease

that would have resulted in her death. Resident 2’s

liver enzymes and lactic acid levels were elevated,

which is indicative of hyperthermia and heatstroke.

There are many different signs of heatstroke. Some

“soft signs” include hot skin, skin turgor, and low electrolytes. “Hard signs” include actual body temperature

readings. Based on his autopsy and investigation, Dr.

Osbourne determined the cause of death for Resident

2 was heatstroke due to environmental heat exposure.

Dr. Osbourne concluded that Resident 2 clearly had

App. 63

demonstrable hyperthermia and was in a hazardous

environment for too long.

89. Heat greatly exacerbates conditions, such as

hypertension, heart disease, coronary disease, and

edema. The heat inside the facility likely contributed

to Resident 2’s heart failure because she already had

underlying severe coronary disease. The stress of being

in a hot environment, which makes it very difficult to

breathe, would have put significant stress on her heart

and may have sent her into cardiac arrest.

90. Dr. Osbourne concluded the lack of attention

and failure to monitor contributed to Resident 2’s

death. As shown by the video footage from the facility,

Resident 2 was seated in a wheel chair near a spot

cooler, with the air from the cooler barely blowing on

her on the evening of September 12, 2017. Hollywood

Hills staff moved her to her room and at around 4:00

a.m. called 911 because she was in distress. Resident 2

was reported to have had shortness of breath and rhonchi bilaterally on auscultation.

91. Dr. Osbourne concluded that the manner of

death for Resident 2 was homicide. His conclusion was

based in part on what he deemed to be neglect by the

individuals responsible for her care. Resident 2 was elderly and needed assistance with all basic daily activities, including ambulating and being removed from an

unsafe environment.

92. Hollywood Hills suggests that, because Resident 2’s temperature was reduced after Tylenol was

administered, she did not die from heatstroke. This

App. 64

claim is not supported by the evidence. Whether Tylenol is effective in reducing temperature depends on

when it is administered in relation to the body’s ability

to thermo-regulate. Once a person’s body loses the ability to thermo-regulate (i.e. loses the normal homeostasis processes), Tylenol will no longer lower body

temperature because Tylenol depends on the body’s

ability to thermo-regulate. Tylenol can reduce body

temperature for a person exposed to heat until such

time as heatstroke occurs, which eliminates the body’s

ability to regulate temperature.

Resident 7

93. Resident 7 was a 71-year-old female. She had

resided at Hollywood Hills since September 12, 2015.

Since March 15, 2016, Resident 7 required assistance

with her activities of daily living and required a wheelchair to get around. At 6:35 a.m. on September 13,

2017, HFR was dispatched to the Hollywood Hills facility for breathing problems associated with Resident

7. Upon arrival, HFR determined Resident 7 was in severe respiratory distress and a sepsis alert. She had a

tympanic temperature recorded by HFR of 103.3 degrees, and her skin was hot to the touch.

94. Resident 7 was transported to MRH’s emergency room at 7:06 a.m. MRH staff noted Resident 7

arrived with shortness of breath and the patient became unresponsive and asystolic shortly after arrival.

At 7:50 a.m., Resident 7 had a core body temperature

of 108.5 degrees. Hospital blood cultures showed no

App. 65

growth after 72 hours. Despite medical intervention,

Resident 7 was pronounced dead in the emergency

room at 7:54 a.m.

95. Associate ME Dr. Wendolyn Sneed determined that the cause of Resident 7’s death was heatstroke due to environmental heat exposure. Dr. Sneed

did not find any source of inflammation that would

suggest Resident 7 had an infection. Dr. Sneed determined the manner of death for Resident 7 to be homicide. Resident 7 was dependent upon staff for removal

from the hot environment, and she could not vocalize

that she was hot.

96. Dr. Sneed noted the facility records from Hollywood Hills did not reflect increased or continual monitoring of residents, or taking temperatures and vital

signs despite the facility’s loss of air conditioning. Dr.

Sneed noted the highly unusual situation of multiple

patients coming from the same facility within a short

period of time with temperatures in excess of 108

degrees. There was no record of staff taking the steps

expected of medical professionals under the circumstances to bring down temperatures.

97. While Hollywood Hills’ records state Resident 7’s temperature was taken on September 12,

2017, at 11:15 p.m., it is questionable whether this recording is reliable. There was no documentation of continual monitoring of her temperature or vital signs and

Hollywood Hills’ latest progress note for Resident 7

was dated September 7, 2017. Although Resident 7 was

prescribed two 325 mg tablets of aspirin every day by

App. 66

her physician, Hollywood Hills documentation does not

show she was administered her prescribed medication

between September 6 and 13, 2017, even during the

loss of A/C.

Resident 8

98. Resident 8 was a 70-year-old female, who had

been under the care of Hollywood Hills since September 8, 2010. On September 13, 2017, at 6:18 a.m., HFR

was dispatched to Hollywood Hills for a breathing

problem identified with Resident 8. At 6:23 a.m., HFR

found Resident 8 to be in cardiac arrest. HFR tried to

record a tympanic temperature for Resident 8, but the

thermometer simply read “HI.” None of the HFR crew

had ever seen a temperature reading of “HI” before this

encounter. HFR, after consulting the thermometer’s

manual, determined the “HI” meant Resident 8’s temperature was 108 degrees or above.

99. HFR noted Resident 8 became apneic and

pulseless during transfer and CPR was performed.

Resident 8 arrived at MRH’s emergency department at

6:35 a.m. Resident 8 was pronounced dead at 6:49 a.m.

MRH staff took a rectal temperature of Resident 8 and

recorded a core body temperature of 109.9 degrees at

7:04 a.m. 109.9 degrees is clearly within the range of a

heatstroke.

100. Based on the autopsy results, Resident 8’s

records and symptoms, and the circumstances in the

facility, Dr. Sneed determined Resident 8’s cause of

death was heatstroke due to environmental heat

App. 67

exposure. Notably, nothing in Resident 8’s autopsy provided any natural cause for a core body temperature of

109.9 degrees. Dr. Sneed did not find any acute natural

condition to explain why Resident 8 would have died

on September 13, 2017, other than the environmental

heat.

101. Resident 8 was non-ambulatory and fully

dependent on Hollywood Hills for all activities of daily

living, including drinking adequate amounts of fluids

to counteract the effects of the heat. During the autopsy, Dr. Sneed did not find any fluids in her stomach.

Hollywood Hills last documented providing fluids to

Resident 8 on September 12, 2017, at 8:05 p.m. Dr.

Sneed determined Resident 8 was not adequately

cared for. Consequently Dr. Sneed also determined the

manner of death to be homicide.

102. The facility records of Resident 8’s temperatures from September 4 to September 11, 2017,

ranged from 97 to 98.3 degrees. On September 12,

2017, at 4:16 a.m., the facility records indicate she had

a temperature of 102 degrees, which was not her normal baseline temperature. Resident 8 was purportedly

provided with two tablets of Tylenol. A progress note

in the facility records states on September 13, 2017, at

3:31 a.m., Resident 8 was alert, oriented with flushed

and clammy skin. Her blood pressure was 148/76,

heart rate was 79 beats per minute (“BPM”) and respirations were 19 per minute. At that time, Hollywood

Hills recorded her temperature at 101 degrees and

deemed her to be in “stable condition.”

App. 68

103. There are reasons to question the accuracy

of this entry. This information was not documented in

the treatment administration record. The day after

Resident 8’s death, “a late entry” was made to the facility records indicating that Resident 8 had a change

in condition with labored breathing at 4:20 p.m. This

“late entry” makes no sense. Even if it is assumed that

this entry was intended to be for September 13, 2017,

HFR was dispatched to the facility for Resident 8 more

than ten hours before the time noted and Resident 8

died at 6:49 a.m. Furthermore, even if it is assumed

that the “late entry” included a typo and meant to refer

to 4:20 a.m., the entry is still problematic because 911

was not called until two hours later.

Resident 4

104. Resident 4 was a 96-year-old man. He was

completely dependent on Hollywood Hills for all daily

living activities and protection from unsafe conditions.

HFR was dispatched to Hollywood Hills at 5:43 p.m. on

September 13, 2017, in response to reports of chest

pain for Resident 4. When HFR reached Resident 4 at

5:45 a.m., they immediately concluded that Resident 4

was already deceased and noted that rigor mortis had

already set in. He was hot to the touch and his eyelids

were fused closed.

App. 69

105. Rigor mortis is the stiffening of the body after death. It is not present at or around the time of

death. How long it takes for the body to stiffen depends

on multiple factors, including the ambient temperature – in a hotter setting, the body will stiffen quicker.

Even though heat accelerates the stiffening process, it

takes some time for rigidity to set in.

106. Orlando Portillo, an investigator with the

Broward County ME’s Office, arrived at the facility

around noon on September 13, 2017, and took core

body temperatures of the deceased residents, including

Resident 4. Resident 4’s core body temperature was

104.6 degrees.

107. Dr. Sneed’s autopsy did not show any acute

natural conditions that would explain Resident 4’s

death. Based on her investigation, Dr. Sneed could not

identify any logical explanation for his death other

than heat exposure. Dr. Sneed determined his cause of

death to be environmental heat exposure, and the

manner of death to be homicide. This conclusion is supported by Mr. Portillo’s post-mortem temperature recording.

108. Resident 4 was in the same room as two

other residents who died on September 13, 2017, Residents 5 and 11, who were also deemed to have causes

of death attributed to environmental heat exposure.

109. Prior to September 13, 2017, Hollywood

Hills’ records indicate that Resident 4 had a temperature range of 97 to 98.6 degrees between September 6

through 12, 2017. Resident 4 had not exhibited any

App. 70

change in condition prior to being exposure to the heat,

which indicates that he did not die from his existing

conditions.

110. As with Resident 8, there was a late entry

made by Hollywood Hills on September 14, 2017, erroneously stating Resident 4 to be in cardiac arrest at

4:00 p.m. (no date specified); Resident 4 was actually

pronounced dead by HFR at 5:45 a.m.

Resident 5

111. Resident 5 was an 84-year-old man, who

was non-ambulatory and completely dependent upon

Hollywood Hills’ staff for all basic activities. He required a permanent feeding tube, which he needed for

all nutrition, fluids, and medication. He resided in the

same room as Residents 4 and 11, who also died.

112. There are conflicting accounts about the

discovery of Resident 5’s death. It is clear that Mr.

Colin’s claim that Resident 5 was found while HFR was

assessing Resident 4 is not accurate. It appears Resident 5 was found deceased in his bed by HFR or Hollywood Hills staff around 6:30 a.m., about 45 minutes

after Resident 4 was declared a Signal 7, and after

HFR and Memorial staff began going room to room assessing patients.

113. Investigator Portillo took Resident 5’s temperature when he arrived at the facility to conduct his

investigation into the deaths of Residents 4, 5, and 6.

Resident 5’s core body temperature taken shortly after

App. 71

noon on September 13, 2017, was measured at 104.1

degrees.

114. After conducting an autopsy, Dr. Sneed concluded Resident 5’s cause of death was environmental

heat exposure. Dr. Sneed’s autopsy and investigation

did not reveal any catastrophic disease that would explain why Resident 5 died on September 13, 2017,

other than the unsafe conditions to which he was exposed. She attributed the manner of death to be homicide based on the condition of the other residents in the

room and the circumstances in the facility.

115. Hollywood Hills recorded a late entry on

September 14, 2017, indicating Resident 5 as resting

in bed at 11:15 p.m., with unlabored breathing and percutaneous endoscopic gastrostomy (“PEG”) tube intact.

Staff also documented that vital signs were taken and

safety and comfort were provided, however, there are

no temperatures or vital signs actually recorded or an

indication of the date to which this record pertains.

The record does not support the claim that Hollywood

Hills staff continually monitored Resident 5’s temperature or conditions prior to his death.

Resident 6

116. Resident 6 was a 92-year-old man, who was

non-ambulatory and required total assistance for all

activities of daily living. He was found deceased in the

facility by HFR at approximately 6:30 a.m., around the

same time HFR discovered Resident 5.

App. 72

117. As part of his investigation into the deaths

of Residents 4, 5, and 6, Investigator Portillo took photographs and assessed the ambient temperature in the

facility around noon on September 13, 2017. He also

took the body temperatures of the deceased residents.

Investigator Portillo recorded Resident 6’s core body

temperature to be 105.9 degrees.

118. There is no apparent explanation for Resident 6’s high body temperature other than environmental conditions. Body temperature does not rise

naturally after death, unless the ambient air temperature is hotter than the body. Resident 6’s post-mortem

body temperature of 105.9 degrees indicates that the

air temperature in his room at the facility was 105.9

degrees or higher when he died or shortly thereafter.

119. Dr. Osbourne conducted an autopsy and

reasonably concluded that the cause of death for Resident 6 was environmental heat exposure. The autopsy

conducted by Dr. Osbourne did not show any lethal or

natural causes of death. Dr. Osbourne reasonably determined that heat exposure was the cause of death for

Resident 6, irrespective of any natural diseases or conditions he had.

120. Dr. Osbourne credibly explained that a medical examiner cannot isolate a patient from the entirety of the circumstances surrounding the death. His

knowledge of the other deceased residents reasonably

led him to determine that the facility was a hazardous,

hot environment that resulted in the deaths of these

residents.

App. 73

121. The last documented progress note for Resident 6 was on September 4, 2017, prior to the loss of

the air conditioning to the facility, which indicated no

signs of respiratory distress. Hollywood Hills’ records

indicate that Resident 4’s temperature, but no other

vital signs, was taken at 1:42 a.m. on September 13,

2017, however, the video evidence directly contradicts

this note since there is no evidence that any staff entered Resident 6’s room from midnight to almost 4:00

a.m.

Resident 9

122. Resident 9 was a 94-year-old female, who

had been under the care of Hollywood Hills since August 29, 2017. Resident 9 was evacuated from Hollywood Hills on the morning of September 13, 2017, and

was transported to MRH at 7:56 a.m. Initial medical

assessment indicated that she had tachycardia and a

change in mental status. After arrival at MRH, her

blood pressure began to drop. She was suspected of a

urinary tract infection (“UTI”) and possible pneumonia.

123. Around 12:56 a.m. the next day, September

14, 2017, Resident 9 became lethargic, non-verbal and

her blood pressure spiked to 150/111. Her blood pressure remained elevated until the afternoon of September 15, 2017. From September 14 to September 16,

2017, after the evacuation of Hollywood Hills, Resident

9 suffered acute delirium at MRH.

App. 74

124. On September 20, 2017, Resident 9 was discharged to Seasons Hospice and Palliative Care. Upon

discharge from MRH on September 20, 2017, Resident

9’s blood pressure again spiked and she continued to

decline. She subsequently went into cardiac arrest and

died that evening.

125. Prior to Resident 9’s admission to MRH, she

was awake, alert, and able to hold a small conversation, including communicating by writing. Hospice records from September 20, 2017, reflect Resident 9

presented with altered mental status, was non-verbal,

unable to follow commands, and was in need of continual monitoring.

126. The ME’s autopsy found significant coronary artery disease in one vessel, blood pooling around

her heart, and a tear or rupture in the wall of the left

ventricle. These findings indicate she had an acute myocardial infarction (heart attack) that subsequently

bled into the sac around her heart causing hemopericardium cardiac tamponade.

127. The ME concluded that the myocardial infarction began on September 13, 2017, the day Resident 9 was evacuated from Hollywood Hills, and then

about seven days later, the rupture of the ventricle occurred. The ME concluded that the rupture on September 20, 2017, was the direct cause of her death.

Specifically, the ME concluded her cause of death was

atherosclerotic heart disease, complicated by environmental heat exposure, resulting in a ruptured acute

and healing myocardial infarction. In other words, the

App. 75

hot environment caused Resident 9 stress, likely precipitating the initial myocardial infarction which led to

the ventricle rupture from which she died.

128. The manner of death was found by the ME

to be homicide due to exposure to the hot environment

leading to the subsequent changes to her heart and

classified her death as a homicide, meaning it was due

to the action or inaction of others.

129. However, the evidence presented at the final hearing was insufficient to find that Resident 9’s

death was caused by environmental heat exposure.

Her death came a week after evacuation. In light of her

age, underlying coronary artery disease, and her diagnosis at admission to MRH of a UTI and pneumonia,

there is insufficient evidence to find that Resident 9’s

death was caused or hastened by the action or inaction

of Hollywood Hills staff. From the evidence presented

at final hearing, it is not possible to determine if her

heart attack was attributable to the heat at Hollywood

Hills, the evacuation, the care at MRH, the transfer to

hospice, the care at hospice, or natural causes.

Resident 10

130. Resident 10 was a 57-year-old female, who

had been under the care of Hollywood Hills since July

18, 2015. Resident 10 had neuronal ceroid lipofuscinosis – a genetic disorder where cells of the brain do not

break down fatty acid. The human body needs fatty acids to make nerve functions work; without these acids,

the body’s cells cannot function. Because of this

App. 76

condition, Resident 10 had functional quadriplegia,

dysphasia, and failure to thrive. Failure to thrive is defined as no impetus to eat or drink, requiring the external administration of feeding and intake of fluids.

Resident 10 was completely dependent upon Hollywood Hills for all activities of daily living, including

feeding, hydration, and all other basic life needs.

131. Resident 10 was evacuated from Hollywood

Hills on the morning of September 13, 2017, and

brought to MRH Emergency Department at 8:24 a.m.

with dehydration, elevated white blood cell count, and

hyperkinetic high potassium. She was ultimately admitted due to dehydration, electrolyte imbalance, and

cachexia, which is wasting away.

132. MRH found bacteria in her blood culture

which prevented them from regulating or correcting

her electrolyte imbalance. Resident 10 was later discharged to hospice on September 19, 2017, and placed

on comfort care. Resident 10 died 15 days after evacuation on September 29, 2017, while at hospice.

133. Because Resident 10 never returned to

baseline after being exposed to the hot environment at

Hollywood Hills, the ME conducted an autopsy. The autopsy revealed Resident 10 had extreme cachexia with

contractures and had viral pneumonia. Her clinical

signs revealed she had at least some physical changes

associated with the exposure to the hot environment,

namely dehydration.

134. The ME attributed Resident 10’s death to

the failure to thrive complications of well-known

App. 77

neuronal ceroid lipofuscinoses, complicated by environmental heat exposure. The only thing that changed

for her from before the evacuation of the facility on

September 13, 2017, was being in the hot environment

inside Hollywood Hills. After that exposure, she never

went back to her usual state of health.

135. Resident 10 was not in hospice before being

exposed to heat. Only after being exposed to the heat

was she placed at hospice, where she died. Exposure to

the hot environment, and not being timely removed or

continually monitored, affected her and likely hastened her death.

136. The ME found Resident 10’s manner of

death to be homicide. Resident 10 was 100 percent dependent upon caregivers to remove her from the hot

environment and provide her any kind of basic needs,

which Hollywood Hills failed to do.

Resident 11

137. Resident 11 was a 93-year-old male, who

had been under the care of Hollywood Hills since January 24, 2016. He was completely dependent upon Hollywood Hills staff for activities of daily living and did

not have the capability to remove himself from hazardous environments.

138. On September 12, 2017, at 12:50 p.m., HFR

was dispatched to Hollywood Hills in response to a call

that Resident 11 had a breathing problem. At 12:55

p.m., HFR determined Resident 11 had labored

App. 78

breathing and a tympanic temperature of 102 degrees.

Hollywood Hills staff communicated to HFR that he

had a rapid decline in mental status and oxygen saturation.

139 On September 12, 2017, Resident 11 was

transported to the MRH Emergency Department at

1:11 p.m. HFR provided an intravenous fluid infusion

and oxygen to him on route to the hospital. Upon arrival at MRH, Resident 11 was found to have altered

mental status, acute respiratory distress, and fever.

His axillary temperature was 103.2 degrees at this

time. MRH staff subsequently took a rectal temperature, which is the most accurate determination of core

body temperature. Resident 11 was found to have a

core body temperature of 106.5 degrees 20 minutes after his arrival at the emergency department. As discussed above, this temperature is indicative of

heatstroke.

140. MRH records documented a conversation

with HFR after the transfer of Resident 11. HFR reported Resident 11’s room at Hollywood Hills was

“very, very hot.” Resident 11 was in Room 226, which

he shared with Residents 4 and 5, who, as discussed

above, passed away less than 18 hours later and were

found to have extremely high body temperatures.

141. Resident 11’s mental condition improved

somewhat after initial treatment at MRH from September 13 to 14, 2017. However, his respiratory status

continued to be compromised and he also developed

non-sustained ventricular tachycardia. On September

App. 79

15, 2017, Resident 11 was noncommunicative with respiratory congestion. He ultimately suffered with multiple organ failure and was pronounced dead on

September 19, 2017.

142. The ME’s Office investigated the death of

Resident 11. Because of the temporal proximity of his

death to other Hollywood Hills residents who died, the

ME determined Resident 11’s cause of death to be complications of environmental heat exposure with contributing atherosclerotic hypertensive cardiovascular

disease.

143. The ME concluded that Resident 11 unequivocally had hyperthermia as confirmed by the rectal temperature of 106.5 degrees, which is indicative of

heatstroke. Resident 11 experienced complications

upon exposure to heat at Hollywood Hills and was

never able to return to baseline prior to his death. Even

though Resident 11 had several comorbidities and natural disease, his exposure to the stress of heat on his

body severely complicated the effects of his natural disease and ultimately led to his elevated temperatures.

The ME concluded that, given the circumstances, Resident 11’s manner of death was properly classified as

homicide.

Resident 12

144. Resident 12 was a 90-year-old female who

had been under Hollywood Hills’ care since August 18,

2009. Resident 12 was completely dependent upon Hollywood Hills staff for activities of daily living and was

App. 80

not able to remove herself from hazardous environments. Resident 12 was evacuated from Hollywood

Hills on September 13, 2017, and taken to MRH at 7:54

a.m. Resident 12 was admitted for dehydration, elevated body temperature, and systemic inflammatory

response syndrome. MRH’s initial assessment revealed she was dry to the touch, with dry mucus membranes, and a change in mental status. Resident 12’s

vital signs, when she first presented, included blood

pressure of 138/111 and an oral temperature of 99.3

degrees. A half hour after arrival, a second temperature was taken and revealed an elevated body temperature of 100.2 degrees.

145. After Resident 12 passed away on October

9, 2017, 28 days after evacuation, the ME investigated

because of the close proximity to the deaths of other

Hollywood Hills residents following the loss of A/C.

Resident 12’s cause of death, as determined by the ME,

was hypertensive and arteriosclerosis cardiovascular

disease, complicated by environmental heatexposure.

Resident 12 never returned to baseline after being exposed to the hot environment at Hollywood Hills.

146. Because Resident 12 was 100 percent dependent upon Hollywood Hills to be removed from the

unsafe hot environment, which had a deleterious effect

on her conditions and in all likelihood led to her demise, the ME determined her manner of death to be

homicide.

147. The evidence at final hearing was insufficient to find that Resident 12’s death was caused by

App. 81

environmental heat exposure. Her death came almost

a month after evacuation and she did not have a documented temperature consistent with hyperthermia.

Her death was too attenuated from the evacuation to

find that it was caused or hastened by the action or

inaction of Hollywood Hills’ staff.

Resident 3

148. Resident 3 was a 99-year-old woman. Resident 3 was a hospice patient who was terminally ill

and was on “continuous care” because as of September

12, 2017, her hospice doctor believed her death to be

imminent.

149. Her underlying medical conditions included

hypertension, aortic valve stenosis, and congestive

heart failure, which can be exacerbated by the stress

of a hot environment. She died at the facility at 1:55

a.m. on September 13, 2017, with a Vitas hospice nurse

at her side, and was immediately transported to a local

funeral home.

150. Dr. Osbourne conducted an autopsy and

concluded that environmental heat exposure contributed to her death. Based on Dr. Osbourne’s investigation, including an autopsy and analysis of her organs

and tissues, there was nothing to suggest that death

was imminent. The autopsy failed to uncover any other

acute natural causes of death. However, this patient

did not exhibit signs of heat stress and the testimony

at final hearing was insufficient to demonstrate that

her death was hastened by conditions at the facility.

App. 82

The Spot Coolers Had Insufficient Cooling Capacity

and Actually Heated the Building

151. Hollywood Hills failed to provide a safe environment for its residents after Hurricane Irma. The

few steps the facility took to address the loss of A/C,

such as obtaining spot coolers and fans, were woefully

inadequate and exacerbated the problem. The facility

simply did not have nearly enough cooling capacity to

replace the lost A/C chiller.

152. The evidence established that the steps

Hollywood Hills took actually made the facility hotter.

The facility installed the spot coolers inappropriately

by venting them directly into the first and second floor

ceilings, which had little to no venting to the outside.

As a result, the exhaust from the spot coolers actually

heated the inside of the facility, effectively turning the

second floor into an oven.

153. The testimony of Scott Crawford, a mechanical engineer and expert in HVAC systems in nursing

homes confirmed that the facility could not have maintained a temperature of 81 degrees for two primary

reasons. First, Hollywood Hills did not have enough

spot coolers to sufficiently cool the nursing home side

of the facility to an ambient temperature at or below

81 degrees. Second, the spot coolers that were placed

throughout the facility were not installed or used correctly, and as a result, added to the amount of heat inside the facility.

154. Hollywood Hills and the adjacent Larkin

share an HVAC system, including a 125-ton chiller.

App. 83

Typically, 85 tons of this chiller is devoted entirely to

the nursing home side of the building. After the loss of

the chiller, Hollywood Hills and Larkin were only able

to obtain portable A/C units (spot coolers) capable of 15

tons of cooling capacity. Of the nine tons allocated for

the nursing home, eight spot coolers were placed in the

hallways – five on the first floor and three On the second floor.

155. This was far less than needed to maintain a

safe temperature in the facility. The spot coolers are

not designed to cool large areas; they do not have the

capacity to replace a full HVAC system.

156. The patient areas on the second floor, where

the critical residents in the facility were housed, totaled approximately 12,545 square feet. The manufacturer of the spot coolers used by Hollywood Hills

identifies the cooling area for those units as 355 square

feet, or approximately 18 by 18 feet. Using the manufacturer’s recommendations, at least 35 spot coolers

would be needed to maintain the second floor patient

rooms at a temperature of 81 degrees or below.

157. Mr. Crawford conducted an independent

load capacity analysis for the facility. Load capacity is

the amount of refrigeration capacity required to maintain a particular temperature. If a facility does not

have the appropriate load capacity, it is not possible to

maintain that temperature.

158. In calculating load capacity, Mr. Crawford

used the Carrier Hourly Analysis program, which is

common in the mechanical engineering industry. The

App. 84

program considers a number of factors, such as the

building construction and insulation, as well as the

amount of heat emitted from the people, lights, and

equipment, to determine how much capacity is needed

to cool a specific area. Mr. Crawford used values for

each of the factors based on an inspection of the site.

For undetermined values, Mr. Crawford used conservative estimates which generally reflected the best case

scenario for the facility.

159. Mr. Crawford’s load capacity analysis also

considered the outside air temperature on September

11 and 12, 2017. Because load capacity analysis determines the cooling capacity needed to maintain the

building at a specific temperature, Mr. Crawford used

81 degrees – the temperature Hollywood Hills’ witnesses claimed was maintained in the building until

the evacuation. Based on his analysis, Mr. Crawford

concluded that on September 11, 2017, the first floor of

the facility required over 12 tons of cooling capacity to

maintain 81 degrees during the hottest part of the day,

while the second floor separately required over 15 tons.

During the hottest part of the day on September 12,

2017, the first floor of the facility required over 11 tons,

while the second floor required nearly 17 tons.

160. Using this very conservative approach, Mr.

Crawford persuasively explained that a minimum of

27 and 28 tons were needed to maintain a temperature

of 81 degrees in the patient areas of the facility on September 11 and 12, 2017, respectively. Unfortunately,

Hollywood Hills only had nine tons of portable cooling

capacity for the entire nursing home. Hollywood Hills

App. 85

simply did not have enough spot coolers to provide the

load capacity needed to maintain the temperature at

or below 81 degrees on either September 11 or 12,

2017.

161. Although Hollywood Hills made use of a

limited number of fans in some areas of the hallways

and patient rooms, those fans would not have any significant cooling effect – largely serving to just move the

air around inside the facility.

162. Without the necessary load capacity, the

temperature within the facility would unavoidably rise

over time. While there may have been short periods at

night when the facility had the necessary capacity to

maintain the temperature on the first floor, this would

only momentarily arrest the increasing temperature –

not return it to 81 degrees.

163. The lack of the necessary load capacity was

exacerbated by the venting of the exhaust from the

spot coolers into the ceiling. A spot cooler cools the

space around it, but actually gives off more heat than

it cools. Thus, spot coolers must be vented away from

the area being cooled. The hot air discharged by the

spot coolers is typically 15 to 20 degrees above room

temperature.

164. In this case, even if it is assumed the room

temperature in the facility was 81 degrees, the heat

discharged from the spot coolers would have been approximately 95 to 100 degrees.

App. 86

165. Online videos show spot coolers typically

vented into drop ceilings with manufacturer-supplied

venting kits. However, Weltem, the company that

makes the spot coolers used by Hollywood Hills, and

other spot cooler manufacturers warn that spot coolers

should be vented into an area that is well-ventilated

and large enough for the heat load to be absorbed, ideally outside the building. Routing the exhaust to a sufficiently ventilated area or directly outside prevents

the discharged heat from simply being added back to

the space being cooled.

166. Hollywood Hills did not vent the spot coolers into well-ventilated areas, but instead directed the

exhaust into the ceilings on the first and second floors

of the nursing home. The porous tiles of the first floor

ceiling serve as the bottom of a confined space directly

below the concrete slab of the second floor. The distance

between the tiles and concrete slab is less than 24

inches. There is no ventilation to the outside of the

building to release the heat from the spot coolers on

the first floor nor is there any insulation between the

floors of the building that could absorb the heat.

167. Consequently, the heat discharged from the

spot coolers on the first floor went directly into the ceiling space, which was confined and not ventilated in

any way. As a result, the heat did not disappear or escape the facility; it remained in the facility and superheated the concrete slab under the second floor and

heated the air temperature on the second floor.

App. 87

168. The second floor of the facility is divided

into three smoke compartments, which are sealed off

from each other for fire safety purposes. Two of the

smoke compartments did not have any ventilation to

the outside. Only one of the three spot coolers used on

the second floor was located in the smoke compartment

with ventilation. Other than this single ventilated

smoke compartment in the second floor ceiling, there

was nowhere else for the heat discharged from the

three spot coolers to go upon entering the ceiling space

on the second floor. The end result is that the installation and use of the spot coolers resulted in raising the

air temperature in the facility, particularly on the second floor.9/

9/

Mr. Crawford conducted a separate load capacity analysis

that accounted for the effect of the heat discharged from the spot

coolers. This heat added to the load capacity necessary to maintain a temperature of 81 degrees, particularly on the second floor.

Mr. Crawford’s analysis was very conservative and did not account for any added heat from the spot coolers on the second floor

– which were not all properly ventilated and also likely added

some heat. Factoring in the heat from the first floor spot coolers,

Mr. Crawford concluded that the cooling capacity needed on the

second floor during the hottest part of the day on September 11

and 12, 2017, was 23.6 and 24.9 tons, respectively.

For the first floor, Mr. Crawford’s conservative analysis concluded that the cooling capacity needed to maintain 81 degrees

during the hottest part of the day on September 11 and 12, 2017

was at least 12.9 and 11.8 tons, respectively. The clear and convincing evidence established that Hollywood Hills did not have

anything close to enough cooling capacity to maintain 81 degrees

on the second floor, particularly given the impact of the discharged heat from the first floor spot coolers.

Hollywood Hills’ failure to reject the heat to non-confined

space resulted in the discharged heat remaining in the confined

App. 88

169. The unavoidable conclusion is that exhausting the spot coolers into the ceiling without proper ventilation was negligent and contributed to the unsafe

conditions for the residents.

170. Hollywood Hills did not present any corresponding load capacity analysis to rebut Mr. Crawford’s testimony. Instead, Hollywood Hills’ HVAC

expert, Nick Ganick, conducted an evaluation of the capacity of the spot coolers to cool the corridor areas of

the facility. Mr. Ganick’s analysis failed to account for

the patient rooms, where the residents were primarily

housed, as well as the nurses’ stations and other key

areas. His analysis was not persuasive.

171. Mr. Ganick failed to support his conclusions

with any calculations to show how the spot coolers

could have cooled the air temperature in the corridors

to 75 degrees. He also did not perform any analysis involving the impact of outside air temperatures on the

temperature within the facility.

172. According to the manufacturer’s specifications, the effective cooling area for a spot cooler is only

18 by 18 feet. Mr. Ganick conceded that his calculations

of the area of the facility corridors (3,360 square feet)

was more than double the cooling area stated in the

manufacturer’s specifications.

space of the facility. The discharged heat eventually either recirculated into the first and second floors or, for the first floor spot

coolers, traveled to the second floor.

App. 89

173. Hollywood Hills failed to rebut Mr. Crawford’s load capacity analysis, which showed the facility

did not have anywhere near the cooling capacity need

to maintain 81 degrees in the facility.

174. Mr. Ganick admitted that heat cannot be

discharged into a confined space in the ceiling or it

would lead to temperature increase within the facility.

He also confirmed that the first floor plenum area did

not have ventilation to the outside of the building.

Even though Mr. Ganick did not conduct his own heat

load calculations, he speculated that the area above

the first floor ceiling tiles and the facility walls had

enough volume to absorb the heat discharged from the

spot coolers. However, the heat had nowhere to go.

Moreover, the porous tiles in the ceilings would allow

the heat discharged into the plenum area to flow back

into the facility.

175. The suggestion by witnesses for Hollywood

Hills that the outside temperature during the early

morning of September 13, 2017, contributed to the

high temperatures recorded by the police in the facility

is not persuasive. The ambient outside air temperature

was only 79 degrees when the evacuation began at 7:00

a.m. Thus, the outside air temperature would actually

have relieved heat in the building when the doors were

opened.

176. Similarly, the suggestion that the HPD temperature readings can be disregarded because of the

number of people in the facility during the evacuation

is not supported by credible evidence.

App. 90

177. While the exact temperature in the facility

at the time the evacuation took place cannot be established with certainty, the testimony of Mr. Crawford,

coupled with the police readings and the observations

of the first responders, provide a sufficient basis to conclude that the facility was not safe for the frail elderly

residents.

Hollywood Hills Knew Conditions Were Unsafe But

Failed to Take Appropriate Action to Protect Its Residents

178. Hollywood Hills argues that temperatures

remained “comfortable” and that AHCA failed to present evidence of ambient air temperatures in the facility at any time. Hollywood Hills relies on the testimony

of Mr. Williams and Mr. Carballo that the temperatures they observed in the building from Sunday

through Tuesday evening did not rise above 81 degrees.

179. Importantly, the temperatures observed by

Mr. Williams and Mr. Carballo were taken in the common areas, near or on the spot coolers. They are not

indicative of temperatures in the patient rooms, particularly on the second floor.

180. Further, the videotaped evidence shows

Hollywood Hills staff profusely sweating and clearly

uncomfortable as of Tuesday afternoon. As discussed

above, by Tuesday at 10:00 a.m., staff documented

through their WhatsApp messaging that “patients

don’t look good” and “we need more fans.” By 2:00 p.m.,

App. 91

DON Castro wrote, “the residents upstairs are having

a really hard time.”

181. Hollywood Hills also offered the expert testimony of Dr. Grundstein, a bio-climatologist, who explained that perceived temperatures by firefighters,

staff, and residents were attributable to metabolic

rates (activity levels). Dr. Grundstein explained comfort is more than just temperature. It involves humidity, wind speed, metabolic rate, and the clothing a

person is wearing. Altering humidity, wind speed, metabolic rate, and/or the clothing a person is wearing can

significantly impact a person’s perceived comfort. The

model takes all these into account. The model assumed

a constant 81-degree temperature.

182. While firefighters would have perceived the

temperatures as hot, the patients may have felt

slightly cool to slightly warm, according to Dr. Grundstein. Dr. Grundstein’s testimony is of little value. Although it shows perceptions can vary from hot to

comfortable at 81 degrees, the model does not prove it

was exactly 81 degrees or that temperatures in the facility did not exceed 81 degrees. If patients were “comfortable,” why would staff be communicating by

Tuesday about the patients having a difficult night,

scrambling to find more fans, and stationing some patients in the hallways near the spot coolers?

183. According to Hollywood Hills, when the

Bravo team took over on Monday, they were told to

closely monitor the patients, continuously offer hydration, and report any changes to the nursing supervisor.

App. 92

Hollywood Hills offered the testimony of staff and

third parties, including physicians, nurses, and family

members, who testified that they personally observed

the residents being monitored and provided hydration.

184. Unfortunately, the patient records, with the

exception of a few unsupported late entries, are completely devoid of this purported monitoring and hydration. AHCA surveyors attempted to obtain from

Hollywood Hills’ administration all documentation

showing the care and monitoring of the residents

within the facility. The very few vital signs recorded for

the residents are not continuous, and there are no

notes regarding their physiological systems or conditions. As acknowledged by Mr. Colin, a well-known axiom in medicine is, “If it’s not documented in the

records, it didn’t happen.”

185. Compounding this problem, in the immediate aftermath of the evacuation, the nursing staff was

called back to create “late entry” notes that are unsupported by any contemporaneous documentation or corroborating testimony. These notes were clearly

fabricated because some reflect the patients had normal body temperatures at a time when they were already dead or dying at MRH.10/

10/

Prior to September 13, 2017, there are no progress notes

in the facility records regarding Resident l’s condition since August 29, 2017, at 12:33 p.m. An entry by Althia Meggie indicates

that on September 13, 2017, Resident 1 was in respiratory distress at 4:25 a.m. However, HFR and MRH records document that

Resident 1 arrived to MRH at 3:29 a.m. Thus, Resident 1 was not

App. 93

186. Similarly, the video relied upon by Hollywood Hills to show hydration only shows staff and family members carrying cups. It does not show

distribution to patients. Because the cameras were

pointed at nursing stations and common areas, no regular or heightened level of patient-monitoring is

even in the Hollywood Hills facility at 4:25 a.m. as recorded by

Hollywood Hills staff.

Moreover, after Ms. Meggie’s initial entry on September 13,

2017, two more “late entries” were made for Resident 1 that are

clearly copied and, in some aspects, inconsistent with the previous entry made for Resident 1. The two late entries for Resident

1 were made on September 14, 2017, at 7:43 p.m. and 8:17 p.m.,

the day after her death. The late entries on September 14, 2017,

contain exact verbiage and typos from the progress notes for Resident 2. Clearly, somebody from Hollywood Hills inaccurately copied progress notes for one resident and replicated them as

documentation of observations for another resident.

The late entry recorded for Resident 1 on September 14,

2017, at 8:17 p.m. stating Resident 1 was in “stable condition”

when she was transported to MRH by HFR, is not consistent with

the videos and HFR run reports that reveal Resident 1 was clearly

in severe distress upon transfer. Video surveillance footage further shows that from 7:00 p.m. on September 12, 2017, to 3:09

a.m. on September 13, 2017, none of the Hollywood Hills staff

members took vital signs or made any assessments of Resident 1.

Tamika Miller recorded a late entry for Resident 4 on September 14, 2017, at 7:42 p.m. and another late entry for Resident

4 on September 14, 2017, at 7:54 p.m. There is no specific date

identified as to when the events delineated supposedly occurred.

The late entry states that at 4:00 p.m. on some unspecified date,

Resident 4 was noted to have cardiac arrest with shallow breathing. This entry is clearly inaccurate. Resident 4 was found dead

at 5:45 a.m. on September 13, 2017. Neither the video footage nor

the HFR records support a claim that he went into cardiac arrest

at 4:00 a.m. and certainly not 4:00 p.m. on September 13, 2017,

or any other date.

App. 94

demonstrated. To the contrary, there are large periods

of time on the video where there is little to no activity

shown of staff entering patient rooms.11/

187. Contrary to his testimony, the video footage

does not reflect that Sergo Colin, the night shift supervisor, made routine monitoring rounds with any of the

attending nursing assistants or nursing staff on September 12 or 13, 2017, to assess the condition of residents. The video only shows him responding in crisis

situations to patients who had died or later expired

shortly after evacuation.

188. The Hollywood Hills staff present during

the storm through the evacuation of the facility were

never instructed by the DON or the Facility Administrator to monitor patient temperatures. Hollywood

Hills relied on staff members to monitor the patients

and only take vital signs when they saw a change in

condition in a patient. This was obviously an ineffective approach under the circumstances. The standard

of care for dependent and immobilized residents of a

nursing home during a precarious situation, such as

11/

AHCA contends that the large gaps in the video are because

the cameras were motion-activated and there was no activity on

the hallways during the gap periods. However, the expert testimony of HPD Detective Robbie Knapp was not persuasive. He admitted that although the cameras were set to be motion-activated,

he could not be certain. Detective Knapp admitted videos of this

nature routinely have failures that could be attributable to overheating, a lost WiFi connection, or the camera just missing the

motion. Accordingly, the video does not, standing alone, prove a

failure to monitor residents. However, as discussed above, neither

does it demonstrate active monitoring of the residents.

App. 95

the loss of A/C, does not depend simply upon physical

symptoms staff can see. Temperatures within the body

can rise without being visible to the human eye.

189. The medical experts uniformly testified

that elderly patients cannot tolerate heat in the same

fashion as younger people. As temperatures rise, the

body tries to pump more blood and to sweat. The elderly do not have the same cardiac reserve as younger

individuals. Their blood vessels do not dilate as well

nor do they sweat as well to dissipate body heat. At

high temperatures, proteins in the brain break down

causing blood pressure to drop and the heart rate to

increase. The kidneys cannot get enough blood and the

elderly are at risk of dehydration because their bodies

cannot compensate.

190. An elderly person’s ability to cope with excessive heat will obviously be impacted by their underlying medical conditions. Elderly patients are often on

diuretics, which makes them particularly vulnerable to

dehydration. If patients suffer from dementia, it may

be impossible for them to communicate their needs for

hydration. All of this was or should have been known

to the staff at Hollywood Hills, yet there was no effort

by staff to properly monitor their patients or move

them to safety.

App. 96

The Inaction of Others Did Not Mitigate the Responsibility of Hollywood Hills to Maintain a Safe and

Comfortable Environment

191. Throughout this proceeding, Hollywood

Hills argued that its responsibility, if any, for the patient deaths, should be mitigated by the inactions of

others. As set forth in the Order entered in this proceeding on November 22, 2017, the focus of this proceeding is on whether Hollywood Hills met its

obligation to provide a safe environment and appropriate health care to its residents. The efforts by Hollywood Hills to shift the blame by trying to point the

finger at other entities is irrelevant to the issues before

this tribunal.

192. Hollywood Hills highlights FP&L’s inexplicable failure to timely respond to its requests for prioritization and the Governor’s failure to return phone

calls for assistance to his cell phone. Apparently, Hollywood Hills incorrectly assumed that power restoration to its chiller was imminent, and it was therefore

lulled into inaction. However, this is belied by the fact

that Hollywood Hills staff never discussed the risks to

the patients versus benefits of evacuation, or the timing of a possible evacuation if the A/C was not restored.

193. Hollywood Hills also points to the fact that

several physicians and a physician assistant saw patients in the building on September 12, 2017, and none

of them felt that it was dangerous for the residents or

that an evacuation was necessary. The evidence

showed that these physician interactions were limited

App. 97

and primarily on the first floor. The facility’s responsibilities to the residents to provide a safe environment

and reasonable access to health care cannot be delegated to providers who did not have direct and continuous responsibilities for all the second floor residents.

194. Hollywood Hills also claims the first responders should have called for an evacuation as soon

as they arrived to treat the first patient on September

12, 2017, if the conditions were unsafe. This ignores the

fact that the first responders were assured that the A/C

was being fixed, that the nursing staff was continually

monitoring the patients, and they were initially dissuaded by staff from checking the other residents.

195. In its defense, Hollywood Hills also argues

that in response to the Hurricane, it followed its own

CEMP, which was preapproved by the Broward County

Division of Emergency Management. The appendix to

Hollywood Hills’ CEMP references a response plan for

utility failures. However, the evidence revealed that

there was no emergency response plan for utility or

chiller failures within the facility. Hollywood Hills’

CEMP is devoid of any emergency plan or guidance in

the event of the loss of the A/C.

196. Hollywood Hills staff members apparently

received some general disaster training when they

were first hired but no additional training or direction

was provided when a disaster became imminent or actually struck. The night shift supervisor on duty from

September 12 to 13, 2017, Sergo Colin, did not attend

any training or educational drills on how to care for the

App. 98

residents appropriately in the event of the loss of A/C.

The second floor nurses, Tamika Miller and Althia

Meggie, also are not documented to have ever participated in such training or drills. After the failure to the

Hollywood Hills chiller on Sunday, September 10,

2017, it does not appear that any Hollywood Hills management or staff consulted the CEMP for guidance or

direction on how to properly respond to the utility failure.

197. The lack of disaster training and education

was apparent in the staff members’ reactions and decisions leading up to the evacuation of the Hollywood

Hills facility. There was a lack of leadership providing

effective guidance to staff members at the facility on

September 12 and 13, 2017. Prior to the evacuation,

the staff had no plan or course of conduct as to how to

ensure the well-being of the patients in their care during the loss of A/C. Hollywood Hills left the most inexperienced staff in charge of the most vulnerable

residents housed in the facility during the loss of A/C

to the facility. Hollywood Hills management did not

provide any written instructions to the staff on how to

conduct rounds or monitor residents with respect to

the loss of A/C.

Hollywood Hills Failed to Meet the Standard of Care

198. It is a nursing home’s responsibility to ensure its residents are provided a safe and comfortable

environment. Hollywood Hills failed to protect and ensure appropriate health care services to the residents

App. 99

in its care during the loss of A/C to the facility after

Hurricane Irma.

199. Hollywood Hills management team failed to

adequately coordinate and to discuss the situation,

plan patient care, and evaluate the residents. The medical documentation shows that staff was not monitoring the effects of the heat on the vulnerable residents

who were completely dependent on staff for daily living

support and mobilization. Prolonged environmental

heat exposure and heatstroke is preventable, and Hollywood Hills failed to take the appropriate steps to prevent the numerous deaths and suffering of its

residents.

CONCLUSIONS OF LAW

200. The Division of Administrative Hearings

has jurisdiction over the parties and subject matter of

this proceeding. See §§ 120.60, 120.569 and 120.57,

Fla. Stat.

201. As a licensed nursing home in the State of

Florida, Hollywood Hills is subject to the requirements

of part II, chapter 400, and part II, chapter 408, Florida

Statutes.

202. Counts I through III of the four count

Amended Complaint seek the imposition of administrative fines totaling $37,500.00 and assessment of

costs related to the investigation and prosecution of

the Amended Complaint. In Count IV. AHCA seeks to

revoke Hollywood Hills’ nursing home license.

App. 100

203. AHCA bears the burden of proving the allegations in its Amended Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne

Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996); Ferris

v. Turlington, 510 So. 2d 29 (Fla. 1987).

204.

that:

Clear and convincing evidence requires

[T]he evidence must be found to be credible; the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as to

the facts in issue. The evidence must be of

such a weight that it produces in the mind of

the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to be established.

In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting

Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

1983)).

205. AHCA met its burden of proving by clear

and convincing evidence that Hollywood Hills’ actions

and inactions in the wake of Hurricane Irma violated

Florida law and led to or contributed to the death of

multiple residents.

206. The statutes regulating nursing homes provide for classification of deficiencies identified by the

agency. Section 400.23 provides:

(8) The agency shall adopt rules pursuant to

this part and part II of chapter 408 to provide

that, when the criteria established under

App. 101

subsection (2) are not met, such deficiencies

shall be classified according to the nature and

the scope of the deficiency. The scope shall be

cited as isolated, patterned, or widespread. An

isolated deficiency is a deficiency affecting one

or a very limited number of residents, or involving one or a very limited number of staff,

or a situation that occurred only occasionally

or in a very limited number of locations. A patterned deficiency is a deficiency where more

than a very limited number of residents are

affected, or more than a very limited number

of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by

repeated occurrences of the same deficient

practice but the effect of the deficient practice

is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency

in which the problems causing the deficiency

are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility’s

residents. The agency shall indicate the classification on the face of the notice of deficiencies as follows:

(a) A class I deficiency is a deficiency that

the agency determines presents a situation in

which immediate corrective action is necessary because the facility’s noncompliance has

caused, or is likely to cause, serious injury,

harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be

abated or eliminated immediately, unless a

App. 102

fixed period of time, as determined by the

agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000

for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be

doubled for each deficiency if the facility was

previously cited for one or more class I or class

II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A

fine must be levied notwithstanding the correction of the deficiency.

Count I

207. Count I of the Amended Complaint alleges

that Hollywood Hills violated section 400.141(1)(h) by

failing to maintain the facility premises and equipment and by failing to conduct its operations in a safe

and sanitary manner. The agency also alleges that Hollywood Hills violated Florida Administrative Code

Rule 59A-4.122, by failing to provide a safe, clean, comfortable, and homelike environment, including comfortable and safe room temperatures.

208. Section 400.141(1)(h) provides that every licensed facility shall comply with all applicable standards and rules of the agency and shall maintain the

facility premises and equipment and conduct its operations in a safe and sanitary manner.

App. 103

209.

Rule 59A-4.122, provides:

(1) The licensee must provide a safe, clean,

comfortable, and homelike environment,

which allows the resident to use his or her

personal belongings to the extent possible.

(2)

The licensee must provide:

(a) Housekeeping and maintenance services

necessary to maintain a sanitary, orderly, and

comfortable interior;

*

*

*

(e) Comfortable and safe room temperature

levels in accordance with 42 CFR, Section

483.15(h)(6), which is effective October 1,

2014, and is incorporated by reference and

available at http://www.gpo.gov/fdsys/pkg/

CFR-2014-title42-vol5/xml/CFR-2014-title42vol5-sec483-15.xml; and,

(3) Each nursing home licensee must establish written policies designed to maintain the

physical plant and overall nursing home environment to assure the safety and well-being

of residents.

(4) The building and mechanical maintenance programs must be supervised by a person who is knowledgeable in the areas of

building and mechanical maintenance as determined by the facility.

(5) All mechanical and electrical equipment

must be maintained in working order and

must be accessible for cleaning and inspection.

App. 104

(6) All heating, ventilation and air conditioning (HVAC) systems must be maintained

in accordance with the manufacturer’s recommendation to ensure they are operating

within specified parameters to meet manufacturers’ specifications. Operation manuals and

as-built drawings must be maintained for

equipment installed after June 1, 2015.

210. The evidence established that Hollywood

Hills failed to ensure a safe environment for its residents as required by Florida law and the failure to provide a safe environment caused serious injury, harm,

impairment, and/or death to multiple residents receiving care in the Hollywood Hills facility. Further, Hollywood Hills violated section 400.141(1)(h) and rule

59A-4.122 by failing to maintain the facility premises

and equipment and conduct its operations in a safe

manner. AHCA met its burden of proof regarding the

allegations in Count 1.

211. Without referencing any authority, Hollywood Hills contends that these are “general standards,” which are not applicable in response to a natural

disaster. It cites the corresponding rules, which require

televisions and radios being tuned to stations of the

residents’ choosing; and that all mechanical and electrical equipment must be maintained and in working

order. According to Hollywood Hills, “the question

therefore, is whether Hollywood Hills acted reasonably

in terms of providing a safe and comfortable physical

environment for its residents within the context of a

App. 105

natural disaster.” As discussed in detail above, the answer is clearly “no.”

212. AHCA did not cite Hollywood Hills for trivial matters, such as failure to meet radio or television

operations standards. It cited the facility due to the unprecedented level of deaths and an MCI. Hollywood

Hills created an unsafe environment by: (1) failing to

have adequate cooling available; (2) failing to properly

monitor the building temperature; and (3) venting the

spot coolers in an unsafe manner.

213. The violation constitutes a Class I “patterned” deficiency pursuant to section 400.23(8)(a).

The administrative fine of $12,500 sought in Count I

of the Amended Complaint is appropriate for this violation. See § 400.23(8)(a), Fla. Stat.

Count II

214. Count II of the Amended Complaint alleges

that Hollywood Hills violated section 400.022(1)(1) by

failing to ensure that its residents received adequate

and appropriate health care and protective and support services consistent with the resident care plan,

and with established and recognized practice standards within the community.

215.

Section 400.022(1)(1) provides:

(1) All licensees of nursing home facilities

shall adopt and make public a statement of

the rights and responsibilities of the residents

of such facilities and shall treat such

App. 106

residents in accordance with the provisions of

that statement. The statement shall assure

each resident the following:

*

*

*

(1) The right to receive adequate and appropriate health care and protective and support

services, including social services; mental

health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident

care plan, with established and recognized

practice standards within the community, and

with rules as adopted by the agency.

216. Hollywood Hills failed to comply with the

above-quoted statutory mandate to provide adequate

and appropriate health care and protective and support services. Hollywood Hills’ actions violated the

rights of numerous vulnerable and medically fragile

residents, particularly those who resided on the second

floor of its facility, by failing to provide a safe environment. The evidence clearly and convincingly demonstrates Hollywood Hills failed to properly monitor and

hydrate its residents as temperatures continued to rise

in the building, thus failing to provide appropriate

health care and protective services. Hollywood Hills

also failed to evacuate the premises when it became

clearly uncomfortable and dangerous to the well-being

of the patients.

217. This violation of section 400.022(1)(1) constitutes a Class I deficiency pursuant to section

400.23(8)(a) because 81 Hollywood Hills failed to

App. 107

ensure a safe environment for its residents and the

noncompliance caused serious injury, harm, impairment, and/or death to multiple residents receiving care

in the Hollywood Hills’ facility. The administrative fine

of $12,500 sought to be imposed by AHCA is appropriate for this violation.

Count III

218. Count III of the Amended Complaint alleges

that Hollywood Hills’ intentional and/or negligent acts

materially affected the health and safety of its residents resulting in the death of multiple residents and

placing many other residents in harm’s way in violation of section 400.102(1) and (4).

219.

Section 400.102 provides, in pertinent part:

In addition to the grounds listed in part II of

chapter 408, any of the following conditions

shall be grounds for action by the agency

against a licensee:

(1) An intentional or negligent act materially affecting the health or safety of residents

of the facility;

*

*

*

(4) Fraudulent altering, defacing, or falsifying any medical or nursing home records, or

causing or procuring any of these offenses to

be committed.

220. AHCA met its burden of proof regarding

this allegation in Count III of the Amended Complaint.

App. 108

The evidence established that the staff of Hollywood

Hills was negligent in failing to maintain acceptable

temperatures in the facility, negligently venting the

spot coolers, failing to adequately monitor its residents

given the conditions, and failing to timely evacuate its

residents. These failures negatively affected the health

and safety of its residents and led or contributed to the

death of multiple residents.

221. The evidence also establishes that Hollywood Hills violated section 400.102(4) by virtue of the

falsification of its nursing home records. The facility

did not document the care the facility claims to have

provided. Moreover, numerous entries in the nursing

home records are clearly erroneous and not supported

by video evidence. AHCA demonstrated that these entries by Hollywood Hills staff were falsified.

222. Pursuant to section 400.23(8)(a), Hollywood

Hills’ violations of section 400.102 constitute Class I

deficiencies because of the serious injury, harm, impairment, and/or death to residents. The administrative fine of $12,500.00 sought to be imposed by AHCA

is appropriate for these violations. See § 400.23(8)(a),

Fla. Stat.

Count IV

223. In Count IV of the Amended Complaint,

AHCA seeks revocation of the Hollywood Hills license

pursuant to sections 400.121 and 408.815.

App. 109

224. Section 400.121 provides authority for

AHCA to revoke a license and states, in pertinent part:

(1) The agency may deny an application, revoke or suspend a license, and impose an administrative fine, not to exceed $500 per

violation per day for the violation of any provision of this part, part II of chapter 408, or

applicable rules, against any applicant or licensee for the following violations by the applicant, licensee, or other controlling interest:

(a) A violation of any provision of this part,

part II of chapter 408, or applicable rules; or

*

*

*

(3) The agency shall revoke or deny a nursing home license if the licensee or controlling

interest operates a facility in this state that:

*

*

*

(c) Is cited for two class I deficiencies arising

from unrelated circumstances during the

same survey or investigation; or

*

*

*

The licensee may present factors in mitigation of revocation, and the agency may make

a determination not to revoke a license based

upon a showing that revocation is inappropriate under the circumstances.

225.

part:

Section 408.815(1) provides, in pertinent

App. 110

(1) In addition to the grounds provided in

authorizing statutes, grounds that may be

used by the agency for denying and revoking

a license or change of ownership application

include any of the following actions by a controlling interest:

*

*

*

(b) An intentional or negligent act materially affecting the health or safety of a client of

the provider.

(c) A violation of this part, authorizing statutes, or applicable rules.

226. In Count IV of the Amended Administrative

Complaint, the Agency alleged that Hollywood Hills:

(1) violated part II, chapter 400, and part II of chapter

408, Florida Statutes, or the applicable rules; (2) was

cited for two class I deficiencies arising from unrelated

circumstances during the survey or investigation;12/

and (3) committed an intentional or negligent act materially affecting the health or safety of a client of the

provider.13/

12/

The Class 1 deficiency of Count I was premised on the

physical environment. AHCA proved Hollywood Hills did not

have adequate backup cooling, failed to monitor the building temperatures, and improperly vented the spot coolers.

The Class 1 deficiency of Count II was Hollywood Hills’ violation of residents’ rights by failing to provide adequate and appropriate health care. This was the result of the failure to

monitor, hydrate, and evacuate. Accordingly, the deficiencies of

Counts I and II arise from “unrelated circumstances.”

13/

The Agency further alleged that “[o]n September 14, 2017,

the Agency issued an Immediate Suspension Final Order

App. 111

227. AHCA met its burden of proof with respect

to the allegations in Count IV. The clear and convincing evidence established that Hollywood Hills committed three Class I deficiencies by violating provisions of

part II, chapter 400, Florida Statutes, as set forth in

Counts I through III, including an intentional or negligent act materially affecting the health and safety of

the facility’s residents.

Conclusion

228. A confluence of unfortunate circumstances

resulted in the deteriorating conditions at Hollywood

Hills on September 12 and 13, 2017. The unprecedented and widespread power outages caused by Hurricane Irma, the lack of prioritization and a timely

response by FP&L, an inexperienced Bravo team left

on duty after the storm passed, inadequate backup

immediately suspending the Respondent from the state Medicaid

program.”

The Immediate Suspension Final Order (“ISFO”) suspending

Hollywood Hills from the state Medicaid program was affirmed

on appeal by the First DCA. The First DCA determined in pertinent part, that “The order sufficiently alleged an immediate, serious danger to the public health, safety, or welfare. AHCA was

statutorily required to suspend the facility’s Medicaid participation upon evidence of patient abuse or neglect.” The evidence in

this proceeding established the factual allegations that the First

DCA found sufficient for the ISFO.

However, given the clear and convincing evidence presented

by AHCA as to Counts I through III, including a negligent act

materially affecting the health and safety of the facility’s residents, it is unnecessary to rely on the emergency suspension order

as a basis for license revocation.

App. 112

cooling systems, and the improper venting of the spot

coolers culminated in a crisis at Hollywood Hills. However, ultimately the patients were dependent on Hollywood Hills to recognize the danger and to keep them

safe. The exacerbation of underlying medical conditions of extremely vulnerable patients by ongoing and

increasing environmental heat exposure after the loss

of A/C on September 10, 2017, was foreseeable and preventable. Properly monitoring of the patients’ temperatures and a timely evacuation could have avoided this

catastrophe.

229. Pursuant to section 400.121(1) and (3), and

408.815(1)(b), it is concluded that Hollywood Hills’

nursing home license should be revoked.

230. The gravity of the harm done to multiple

residents strongly outweighs any mitigating factors

that might be considered against revocation. See

Bayou Shores SNF, LLC, d/b/a Rehab. Ctr. of St. Petersburg v. AHCA, AHCA Case No. 2015000096 (AHCA Final Order, Aug. 30, 2016), aff ’d, 240 So. 3d 666 (Fla. 2d

DCA 2017) (per curiam) (revoking a nursing home’s license after being cited for three Class I deficiencies, including the “failure to have end-of-life decisions as

reflected in a signed [Do Not Resuscitate] order; failure

to safeguard residents from a sexual offender; and failure to prevent a resident from leaving undetected and

wandering outside the facility”).

231. Because AHCA met its burden of proof relative to Counts I through III, administrative fines totaling $37,500.00, as well as an award of costs related

App. 113

to the

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