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Judge: Nursing home to pay ‘reasonable fee’ for records

The state can’t charge the Rehabilitation Center of Hollywood Hills anywhere close to $30,000 to produce the records of deaths occurring statewide during and immediately following Hurricane Irma, a judge said Tuesday.

The Department of Health wanted the Broward County nursing home, where 12 people died because of sweltering conditions when the power failed, to pay $5 each for paper records of the nearly 6,000 deaths that occurred across the state at the same time.

Circuit Judge Terry Lewis in Tallahassee told an attorney representing the state to produce electronic copies instead, and to charge only reasonable costs of preserving the records on a computer disk or flash drive.

“They don’t even want paper copies,” Lewis told assistant general counsel Michael Williams.

Williams argued that state law required extensive redactions of the records to shield the causes of death. However, Timothy Elliott, of Smith & Associates’ Tallahassee office, representing the nursing home, said officials routinely produce such redacted records at minimal cost.

In light of that, the state’s demand is “inherently unreasonable,” Elliott said. “There has to be a reasonable fee.”

Lewis agreed: “That would make it silly to me, and illogical, to require your department to spend all that time, and have them pay all that money, to redact something that’s not necessary and that the public can get otherwise,” he said.

“If all they want is take that information and put it on a disc, that shouldn’t take that much,” Lewis added.

Lewis also ruled that the nursing home is entitled to recover its costs in litigating its records demand against the state. He told the parties to confer on language summing up his ruling from the bench and return it for review.

The state went after the home’s license following the tragedy, but staff responded that they’d tried phoning Gov. Rick Scott and received no answer. Meanwhile, the Legislature passed a law requiring homes to acquire electric generators, but many remain out of compliance.

Lewis ordered the agency to turn over the records in April, provoking the fresh litigation over its fee demand. Earlier court documents had placed the amount at around $6,000, but the larger figure emerged during Tuesday’s hearing.

The nursing home hopes to establish that its staff acted reasonably in declining to evacuate its residents. The law firm’s Geoffrey Smith said research suggests evacuating frail elderly ahead of a natural disaster can cause more deaths than sheltering in place.

“It’s important to place the whole thing in some perspective,” Smith said. “When we get away from the sensationalism, most people would see it was pretty reasonable to do what they did.”

Written By

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

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