Appeals court cancels fine against Rochester nursing home

A state appeals court has canceled a fine imposed against a Rochester nursing home by the state Health Department and upheld the recommendation of an administrative law judge.

The Brook at High Falls Nursing Home and Rehabilitation Center was fined $14,000 by the New York State Department of Health. The nursing home filed an Article 78 petition challenging the fine.

In June 2022, state Supreme Court Justice Gail Donofrio referred the case to the Appellate Division of state Supreme Court, Fourth Department, to review a determination made by the Department of Health.

The determination found that the nursing home violated an executive order issued during the COVID-19 pandemic. The Fourth Department unanimously annulled the determination and granted the petition.

Initially, an administrative law judge (ALJ) recommended that the charge be dismissed because the state Department of Health failed to meet its burden of establishing that the nursing home violated the executive order.

Health Department Commissioner Dr. Howard A. Zucker rejected the recommendation without issuing any new findings of fact.

“We agree with petitioner that the Commissioner’s determination should be annulled,” the Fourth Department wrote.

“When an administrative official summarily rejects the (ALJ’s) determinations of credibility but fails to make new findings sufficient for judicial review, the determination is arbitrary and capricious,” the court wrote, quoting from Matter of Stevens v Axelrod, a 1990 Fourth Department decision.

“Findings of fact in some form (are) essential so as to permit intelligent challenge by a party aggrieved and adequate judicial review following the determination,” the court wrote, referring to Matter of Simpson v Wolansky, a 1975 New York State Court of Appeals decision.

“The Department asserted that all of the alleged violations were established and that the evidence at the hearing supported the imposition of a $66,000 penalty. The Commissioner, however, imposed a penalty of only $14,000 without any explanation regarding how that figure was derived or which alleged violations were sustained,” the court wrote.

“Because we do not know which alleged violations the Commissioner implicitly sustained and which ones he implicitly dismissed, we are unable to review intelligently the Commissioner’s determination,” the court wrote.

In April 2020, then-Gov. Andrew Cuomo issued an executive order that nursing homes must notify family members or next of kin if any resident tests positive for COVID-19, or if any resident suffers a COVID-19 related death, within 24 hours of the positive test result or death.

On May 21, 2020, the Department of Health sent a team to the Brook to determine if the facility complied with the executive order.

“The Department did not indicate that it had interviewed any family members who were not appropriately notified,” according to the petition filed by the nursing home.

The Department of Health team “indicated that it interviewed the non-familial emergency contact for (one resident) who said he had not been contacted or notified” and issued a citation.

“There is no indication why notification or non-notification of a nonfamilial emergency contact is relevant,” the nursing home lawyers wrote in the petition.

“The only example of non-compliance given by the Department was failure to notify a person who was not a family member or next of kin,” according to the petition.

In the report and recommendation, the ALJ wrote that the state “did not meet its burden and that Brook presented substantial evidence to refute the claimed violation.”

The judge wrote: “The hearing record reflects the (nursing home’s) continued compliance with COVID 19 related notification requirements. Therefore, the charge should be dismissed.”

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