This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello out there and welcome to episode 45 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: Who goes for his cup of coffee every time he’s prompted to give his name, so that’s really interesting. So after 45 times of doing this, he hasn’t learned his lesson.
Anyways, we are trial attorneys and we are occasional co-hosts of the Nursing Home Abuse Podcast. Thank you for joining us. As this goes to air, this is November 20th, 2017, so it’s Thanksgiving week. What are your plans for Thanksgiving, Will?
Smith: I’m going to pick up my mom in Sautee and drive her to her family’s place in Cobb County? Yeah, Cobb County.
Schenk: Cobb County, Georgia. So do you fry your turkey? Do you bake it normally? What do you do in the mountains?
Smith: Well first of all, if it’s just my family, like my immediate family, I don’t like turkey. I think turkey is dry for the most part. It’s not my favorite meat, so we generally eat ham, which is far more moist and succulent, or we’ll do whatever we want. We’ll have lasagna. It doesn’t matter. But as far as her family is concerned, I’m sure somebody is going to bake it. I don’t think I’ve had fried turkey.
Schenk: Fried turkey is actually pretty good because it solves the problem of it being dry.
Smith: The best turkey I ever had was at my aunt’s house, my dad’s side. One of her friends put a turkey in a brine solution, salt, for like 24 hours, and it was very moist. I still prefer ham. I’m not much for traditions.
Schenk: We definitely do turkey – apparently. This is going to be great when we talk about the Christmas episode, but anyways, my mother, for Christmas, would do ham and turkey, but Thanksgiving is generally just turkey. Also this week, Justice League comes out.
Smith: I thought that already came out.
Schenk: No. It has not come out yet.
Smith: What came out? What came out?
Schenk: Well as we recorded this, what had just came out in the previous few weeks was Thor: Ragnorak.
Smith: Oh, okay.
Schenk: Which was amazing, an amazing movie.
Smith: Okay.
Schenk: But what is going on now – and again, this comes out this week, but there is an embargo on reviews within 24 hours of it, which is never a good sign when the studio says, “You’re not allowed to print reviews of this movie until a day before” as opposed to weeks before or several days before. So they don’t want – if it’s bad, they don’t want critics to pan it far enough advance that no one goes to the opening day. But we’ll see. And also Lora Marsh, that’s a friend of mine – it’s her birthday this week on the 25th.
Smith: Awesome.
Schenk: Happy birthday.
Smith: Wasn’t it just Dennis’s birthday?
Schenk: They’re all born in the same time period.
Smith: And Tracy too?
Schenk: Yeah.
Smith: That’s strange.
Schenk: November 1st, November 6th and November 25th – a lot of the Marshes.
Smith: Interesting. Yeah.
Schenk: Anyways, today we’re going to be talking about a tragedy that’s been in the news the past couple months concerning a particular nursing home in Florida. The nursing home is called Rehabilitation Center of Hollywood Hills, and it’s the nursing home in which about 14 people passed away after Hurricane Irma.
Smith: Yeah. They’re auditing the number of people who passed away because of the lack of preparedness versus just natural causes.
Schenk: So 14 people died, but it’s the number of people we can link…
Smith: Directly to…
Schenk: …The lack of care is about 12.
Smith: About 12.
Schenk: So just for those who don’t have an adequate background in what happened, we’ll go through that really quickly and we’ll talk about…
Smith: If you’ve been living under a rock.
Schenk: Yeah. But Rehabilitation of Hollywood Hills Nursing Home in…
Smith: Hollywood Hills.
Schenk: Hollywood Hills, Florida, owned by Dr. Jack J. Michel was in the thick of Hurricane Irma.
Smith: Yeah, this was a South Florida nursing home.
Schenk: Yeah. So when Hurricane Irma hit, it knocked power out in one of their transformers that powered the air conditioning in their facility. And what’s interesting is it said the facility didn’t lose total power, but just by losing the transformer is when the air conditioning went out. So you’ve got about 150 residents in a two-story nursing home facility without air conditioning in September in Florida and it’s humid.
Smith: Yeah, in South Florida.
Schenk: In South Florida. So temperatures, once the air conditioning went out, temperatures went up to the high 90s.
Smith: And they were even, I think at one point, they were even higher on the second floor because as we all know, heat rises.
Schenk: Heat rises. And that’s crazy about this because at least one of the individuals that passed that was taken to the hospital, their body temperature was recorded at…
Smith: 106.
Schenk: Yeah, over 100 degrees. So…
Smith: So just to put that into context, your 98.7 is what you’re shooting for. When you have 99 or 100, you’ve got your febrile, which means you’ve got your fever. Anything above 101, 102, you start to get concerned, and you go to the doctor. But when you’re talking about 106, that is heat exhaustion.
Schenk: Yeah.
Smith: Heat stroke.
Schenk: And so 150 people, you start having residents as old as 99 – the ages there were 79-99, started having respiratory arrest, heat exhaustion, other respiratory conditions, dehydration, and so people started to pass. And what’s really strange is you have all these workers there, CNAs, LPNs, that did not alert any state official, any law enforcement agency or EMS that there was a dangerous condition.
Smith: Yeah, I agree with you on that. Among the dozens of calls that were sent out that went out from the nursing home, only I think one or two mentioned something.
Schenk: That’s correct. So the 911 calls started coming in. We have in terms of us as hosts and the press have got eight calls that were handed over by the city of Hollywood Hills. They total more than 30 minutes. Only one nurse mentioned there was no air conditioning in the nursing home, and not one suggested that an evacuation was urgently needed. And then finally it says the clearest indication of the severity of the health crisis came in the last call. A staff member says the center received a call about multiple residents being ill and possible deaths. It’s almost like the cover-up began immediately it feels like.
Smith: Well you know, I want to give my perspective on this here. The nursing home staff and definitely the owners of the nursing home, the nursing home administration, dropped the ball here. But I think that everyone involved dropped the ball. Everyone from Governor Rick Scott, even though he’s trying to impose new regulations to fix this, to congressional representatives to the emergency services – why is it not a priority for emergency services to say, “Hey, we’re not going to wait for a nursing home to give us a call.”
Schenk: Right.
Smith: “We will assume that is a high-risk facility to begin with,” because that’s the way they treat hospitals.
Schenk: Right. Okay, that’s a good point. So about three days later, this is September 13 when these initial deaths take place in this facility. Three days later, Governor Scott releases an executive order, a governor’s order, that says that within the next 60 days, all assisted living facilities and nursing homes must obtain ample resources including a generator and the appropriate amount of fuel to sustain operations and maintain comfortable for at least 96 hours…
Smith: Which is four days.
Schenk: Yeah, following a power outage. He expresses concern about why it took so long to call 911 and he’s saying at least right now, he’s wanting it to be coded by the legislature, and he says it’ll be a $1,000 per day fine. In the meantime, after eight deaths initially, Governor Scott responds with an executive order – the Centers for Medicare and Medicaid Services impose a penalty on the nursing home for $20,965 a day for the three days there was no power. And then I think another week after that, they pulled the license.
Smith: So yes, all 200-something staff had been let go. It’s shut down. Everyone’s been transferred.
Schenk: Yeah, 245 people laid off from that facility, and as of September 27th, it had closed permanently.
Smith: So I know a question that a lot of people have is were there any rules or regulations to begin with? And there were, clearly. That’s the justification for CMS imposing an almost $30,000 CMP, civil monetary penalty, against the nursing home for failure to meet certain regulations. So what they had before in Florida, there were regulations that required nursing facilities to have an emergency preparedness plan that really didn’t specify exactly what that plan needed to be. It said it needed to follow all the requirements of CMS regulations, and just as a brief aside, CMS regulations, the federal regulations are the baseline. It’s kind of like the U.S. Constitution is to the states in that it provides a floor of the foundation. So you can’t take away any rights. You can’t go below what that baseline is. But the states can add extra protections. So CMS is the baseline for how nursing homes have to operate. They can’t go below that.
Florida didn’t add anything extra and just said, “Look, you need to have an emergency preparedness plan. You need to have an alternate source of power. And you need to make sure you’re following the CMS rules,” which basically say the same thing. You need to have power. You need to have a preparedness plan. So what they’re proposing now is instead of having something that ambiguous, in Florida at least, to explicitly state you must have a backup generator that can provide power for air conditioning or heat for four days. You must have that, and you must have that within the next 60 days.
Schenk: That’s right. That’s what the executive order said, and that’s pretty much verbatim what Debbie Wasserman Schultz’s bill is saying.
Smith: Yeah, so at the conference that I attended at the beginning of November, I actually had the opportunity at the very end of the conference, we went to the Rayburn House.
Schenk: What’s the Rayburn House?
Smith: Well it’s named after Rayburn – I think his name was Sam Rayburn. He was a Democrat during the ‘40s who was a mentor to LBJ, and he was a U.S. Senator, and he was very well known for anti-corruption, like wouldn’t take any money from special interest. So when he passed, they named this administrative building after him the Rayburn House. It’s one of many administrative buildings. It has the Senate Committee for Foreign Affairs in it, and I only know that because I happened to walk by it, and a bunch of other committee rooms in this administrative house. It’s big. It’s on Constitutional Avenue. It’s an enormous building, very beautiful. I sound like Trump right there.
Schenk: Many people.
Smith: Many people are saying this.
Schenk: Beautiful building. It’s not just me.
Smith: It’s not just me. So we were at the Rayburn House and one of their rooms, and Jan Schakowsky, Congresswoman Jan Schakowsky from Illinois, and Debbie Wasserman Schultz, who’s been in the news for many different reasons, among those, this Hollywood Hills Nursing Home is in her district. She is a U.S. Congresswoman, and she spoke on the desire to implement stricter and tougher regulations in CMS and in her home state of Florida that lay out exactly what a nursing home needs to do, because these are already in place for, as you can imagine, hospitals and operating rooms. I mean when disaster hits, an operating room, as you can imagine, when you’re in surgery, has a backup generator. Why doesn’t a nursing home? I mean they’re required to have emergency preparedness plans, but nothing explicitly tells when what they need to do, which allows some wiggle room, right? For example, I think the regulations for CMS now say you need to have some sort of alternative energy source without really saying what it is.
Schenk: Yeah, it could be hamsters on a wheel.
Smith: Solar panels, hamsters on a wheel – it doesn’t matter. What a lot of people, what Rick Scott wants is, “No, this is exactly what you must have. You must have a backup generator just like an OR, just like a hospital. You must have a backup generator that provides four days, no less, of emergency power to your A/C and heat.”
Schenk: I don’t want to body shame Governor Rick Scott, particularly because I could be mistaken for him, but when I look at him when he’s on television shows speaking, doesn’t he look like a cobra or a snake, not like in his temperament or his character. I’m just saying like he looks like the head of a serpent.
Smith: You mean like James Carvile does?
Schenk: Kind of, yeah. He’s kind of more like a skeleton. I think it’s because Rick Scott’s neck is so small and no hair and no facial hair. He looks like something that has shed its skin and is going to eat a mouse.
Smith: I don’t know.
Schenk: I don’t know. Nothing that he can say I can take because he looks like red on yellow, kill a fellow.
Smith: That’s a coral snake.
Schenk: Red on black… Between the two of us, we both know, this can be corroborated by your mother that I know more about snakes?
Smith: Okay, where are the fangs of the coral snake?
Schenk: In its mouth?
Smith: Where in its mouth?
Schenk: In the front.
Smith: In the back.
Schenk: Oh.
Smith: Yeah, that’s why they’re really not quite as dangerous because it’s really hard for them to inject venom, but they are both neuro and hemotoxic, so they’re extremely…
Schenk: That’s going to be very difficult for Dennis to – he’s going to have to look that up, how to spell it for the transcription.
Smith: Okay.
Schenk: So did you tell our listeners that Debbie Wasserman Schultz presented at the conference?
Smith: I literally just said at the Rayburn House, we got to see Jan Schakowsky from Illinois and Ms. Wasserman Schultz from Florida talk about this issue.
Schenk: Yeah. I was actually reading this particular article dealing with the owner, Dr. Jack Michel – I think that’s how you say that. It could be Michel but…
Smith: It is Michel.
Schenk: Okay – is that he never should have been licensed to begin with because it looks like the Justice Department is investigating him for a lot of fraud charges that date back to 2004.
Smith: No, there is a host of issues with overbilling CMS with this nursing home. So not that those necessary go to emergency preparedness, but it’s just one thing in a line of problems for this nursing home. But they’ve been shut down. They’re not going to reopen.
So the issue here for the nursing home industry – and I will say this. I am sympathetic to the argument that the nursing home industry is making in Florida in that what they’re saying is like, “Look, you’re giving us 60 days to implement something that is going to take much longer than 60 days, because it’s not as though you can just back up a generator. It’s not like your house where you go to Lowe’s or Home Depot and you get a generator and you put it in the basement and go, “All right, honey. If the power goes out, at least the kids can watch Netflix for a couple of days.” It’s not like that. In order to put an industrial-sized generator that is strong enough and powerful enough to power a facility that has 200 beds, it takes a lot of time, it takes a lot of money.
Schenk: Oh yeah, we mentioned Dennis’s birthday all the time…
Smith: Well you do.
Schenk: Yeah, well actually he’s an engineer and that’s his job, and he goes around to hospitals and he’s the one that checks the backup systems. And it takes a long time. Somebody’s got to wire that all together, make sure it works, then go and maintain it, like go and test it.
Smith: Yeah.
Schenk: I mean I dig it, but again, I don’t want our audience to assume that it’s Ma and Pa Kent that owns a nursing home and that this is going to cripple their ability to sustain their family. We’re talking about giant companies.
Smith: Yeah, yeah. Yeah.
Schenk: We’re talking about people who defraud the government who are being investigated by the justice department.
Smith: As a matter of fact, if you have less than 50 residents or less than 100 beds and you are a smaller nursing home, you qualify under these proposed regulations for a loan to get the money that you need to get this emergency generator up and running.
Schenk: Do we know the status right now of this in terms of our Georgia state legislature?
Smith: They’re also looking into it.
Schenk: I mean Georgia gets just as hot as Florida and just as humid in many places.
Smith: Sure. And as it stands right now, the Georgia regulations are just as ambiguous as CMS’s current regulations and Florida’s current regulations in that there’s a requirement for an emergency backup plan. Actually I’m not sure if there’s a requirement for a generator in Georgia. We’ll have to look that up and we’ll address that next time.
Schenk: Yeah.
Smith: So a judge has recently sided with the nursing home industry saying that, yeah, this is unfair.
Schenk: This is unfair.
Smith: They can’t do this in 60 days, and I don’t necessarily disagree with that. What I would say is I’d be willing to agree with the nursing home that, look, we’re saying that we can’t get this done in 60 days, and it’s not fair that if we don’t get it done in 60 days, you immediately start fining us. What I would like to see is that everyone, from the governor’s office to CMS to local services work together with the nursing home industry and say, “Let’s get this done within 60 days.” Maybe it takes 70 days, but let’s not stop, let’s not dilly-dally – which my dad used to say, which just means waste your time…
Schenk: I think we…
Smith: What?
Schenk: I think that’s pretty ubiquitous. Dilly-dally? Everybody knows what that is.
Smith: Do they? I don’t know. Anyways, let’s not waste our time and let’s get this done. What I don’t want to see is just throwing it onto the nursing home and going, “All right, we’ve done what we should have. We said you had to have it done in 60 days or we’re going to start fining you,” because it is everyone’s fault as far as I’m concerned. It is the congressional representatives of that district, including Wasserman Schultz, including Rick Scott the governor. It is everyone’s fault, because it’s not as though you were surprised that there was a hurricane in South Florida. It’s not as though you didn’t know that there were explicit specific regulations detailing what a nursing home must do in the event of a hurricane. It’s not as though this is a surprise to anybody. So throwing it all on the nursing home industry – yeah, they’re at fault, but I don’t like everybody pointing their finger at them and going, “Those are just the bad guys.” No, all of you did bad in this. All of you.
Schenk: So what was Debbie Wasserman Schultz like in person?
Smith: She’s very passionate. I didn’t go up and speak with her. She just came in and as any congressional person is, I’m imagining she’s extremely busy, so she popped in, told us her plan to increase safety for nursing home residents in the case of emergencies like this for Florida, and she made some brief comments on the proposed regulations for CMS overall and then left. So good for her. I hope that she brings about some change, but again, my main thing is I don’t like her or Rick Scott or anybody else all pointing the finger at the nursing home industry even though we routinely think they’re bad guys and saying, “This is all your fault.” This is everyone’s fault. To act surprised that a nursing home would lose power in South Florida because of a hurricane is like living in Los Angeles and not having a plan for an earthquake.
Schenk: Yeah, and actually that’s going to be the basis for the multiple lawsuits that have already been filed against that nursing home.
Smith: Oh yeah. Oh yeah, and I’m sure there are going to be suits filed not only against the nursing home but possibly even the state government at some point because they failed as well. This is something that should have been addressed a long time ago and not within a small window that says, “All right, well this happened. Now you guys have 60 days.” This should have happened years ago. Why didn’t it? Hurricanes in South Florida, like they’re not new.
Schenk: And if we understand the statistics, with climate change, they’re only going to be getting more often and more violent, the hurricanes.
Smith: Yeah, absolutely. So this is something that should have been addressed a long time ago. The very fact that a nursing home doesn’t have a backup generator for A/C or heat is absurd, because nursing home residents are – first of all, if you’ve ever worked in a nursing home, they will have the heater on in the summer because they are older individuals and they easily get cold, but that doesn’t mean they can’t take extreme heat. They can’t handle extreme conditions, period, the same way somebody who might be in their 20s or 30s can. So they’re very vulnerable to these emergencies. I mean imagine if a NICU, a neonatal intensive care unit that cares for premature babies and young infants, didn’t have an emergency backup generator. I mean how absurd would that be? So why is that the case with nursing homes? And that’s what makes me so mad is that this is just now coming up. And I want people to take notice that this is on everyone’s radar right now, especially from Florida, but if this happens in Georgia in a year or two and there’s no emergency backup generator, there’s no one to blame but Georgia representatives because you guys saw this happen in Florida and decided, “Well we’re just going to hope it doesn’t happen during our watch.”
Schenk: And it doesn’t take a Superman or a Wonder Woman to make sure these things get…
Smith: No, and yeah, I get the fact that it’s expensive and you can’t just backup a generator to a nursing home and maybe you can’t do it in 60 days, but let’s go ahead and start that process today. Maybe it takes 62 days. I don’t know how long it’s going to take. Maybe it takes 12 months, but what shouldn’t happen is 12 months or four, five years down the road, we’re finally getting around to saying, “Well maybe we should go ahead and make it a requirement.” It should be a requirement in every single nursing home. There are currently 1.5 million residents in nursing homes in this country. This should be a major concern for every one of the 50 states and our not quite a state but almost a state Puerto Rico. So every single place that the U.S. has dominion or control over, this should be a major concern and this should be something we instantly and immediately address.
Schenk: And speaking of dominion and control, we both have dominion and control over the amount of time that we spend on this podcast every week. I was going to segue out with Wonder Woman and Superman, the Justice League connection, but you kept going. But this will conclude – this will conclude this episode of the Nursing Home Abuse Podcast. As always, you can download the audio or MP3 on Stitcher, iTunes or wherever you get your podcast from.
Smith: And Spotify.
Schenk: Yeah, well hopefully by this time, Spotify will have our podcast, but we’ll see. Maybe not this week, but next week.
Smith: We are going to be on Spotify.
Schenk: We better be.
Smith: We’re moving on up.
Schenk: We better be. Next stop – Thursday night on NBC, must-watch TV. Anyways, thanks a lot everybody. We’ll see you next time.
Smith: See you next time.
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