Rehabilitation Center at Hollywood Hills, LLC, Appellant/Petitioner,
State of Florida, Agency for Health Care Administration, Appellee/Respondent.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Agency for Health Care Administration. Justin
M. Senior, Secretary.
for Review of Emergency Administrative Order- Original
for Review of Emergency Suspension Order-Original
Geoffrey D. Smith, Timothy B. Elliott, and Corinne T. Porcher
of Smith & Associates, Tallahassee, for
Stephen A. Ecenia, J. Stephen Menton, Tana D. Storey, Craig
D. Miller, and Gabriel F. V. Warren of Rutledge Ecenia, P.A.,
Tallahassee, for Appellee/Respondent.
William Roberts, Deputy General Counsel, and Tracy C. George,
Chief Appellate Counsel, Agency for Health Care
Administration, Tallahassee, for Respondent.
Center at Hollywood Hills, LLC (the facility) challenges 3
emergency orders entered by the Agency for Health Care
Administration (AHCA) after 8 of the facility's residents
died during the aftermath of Hurricane Irma when the facility
lost power to its air conditioner.
1D17-3883, AHCA issued an Immediate Moratorium on Admissions,
prohibiting the already-evacuated facility from admitting new
residents. In 1D17-3858, AHCA issued an Immediate Suspension
Final Order (ISFO), which suspended the facility's
participation in the Medicaid program. In 1D17-4092, AHCA
issued an Emergency Suspension Order, which suspended the
facility's license to operate as a nursing home.
facility filed petitions for writ of certiorari challenging
the Immediate Moratorium on Admissions and the Emergency
Suspension Order, which were non-final orders, and a notice
of appeal challenging the ISFO, which was a final order.
These cases are consolidated for purposes of this opinion.
facility asserts that all three orders fail to provide
sufficient specific factual allegations justifying emergency
action. In addition, it asserts that AHCA failed to provide
an administrative hearing following the ISFO.
determine the challenge to the Immediate Moratorium on
Admissions in case 1D17-3883 is moot in light of the
subsequent Emergency Suspension Order in case 1D17-4092,
which suspended the facility's license to operate a
nursing home. We find that the orders in cases 1D17-3858 and
1D17-4092 contain sufficient factual allegations to support
the failure to provide an administrative hearing after the
ISFO, we affirm because the record does not demonstrate the
facility requested a hearing, and the facility failed to
raise an issue concerning the order's failure to apprise
the facility of a point of entry into the administrative
proceeding until the reply brief. Therefore, the issue is not
properly before this court on appeal.
Moratorium on Admissions, 1D17-3883
September 13, 2017, AHCA issued the Immediate Moratorium on
Admissions, which prohibited the facility from
"admit[ting] for services any individual." The
order made the following factual findings:
a. On September 10, 2017, [the facility] became aware that
its air conditioning equipment had ceased to operate
b. In addition to contacting the local electrical power
provider, [the facility] situated eight (8) portable air
coolers throughout the facility and equipped the halls with
c. Between 1:30 AM and 5:00 AM on September 13, 2017, several
residents suffered respiratory or cardiac distress. Eight (8)
of those residents ultimately expired.
d. Emergency personnel and law enforcement responding to
these multiple emergency medical events directed [the
facility], as a result of the heat in the building, to
evacuate the second floor of the Facility.
e. [The facility] ultimately evacuated the entire building.
on these facts, AHCA concluded that a moratorium was
necessary because the "practices and conditions at the
[facility]" presented an "immediate serious
danger" or "threat" to the residents. It found
the "[facility's] deficient conduct is widespread
and places all future residents at immediate threat to their
health, safety, and welfare. The [facility] has demonstrated
that its physical plant cannot currently provide an
environment where residents can be provided care and services
in a safe and sanitary manner." AHCA asserted the
moratorium was necessary because the facility's
"deficient practice exist [sic] presently; have existed
in the past, and more likely that not will continue to
exist" without intervention. AHCA reasoned the residents
needed protection from the "unsafe conditions and
deficient practices" at the facility because it was
"ill-equipped to provide for resident health, safety,
and welfare, " and "the statutory and regulatory
mechanisms enacted for their protection have been
breached." AHCA concluded this remedy was the least
restrictive action the agency could have taken and was
supporting authority, AHCA cited sections 120.60 and 408.814,
which permit it to take emergency action when it finds an
immediate threat to public safety, health, safety, or
welfare. §§ 120.60(6), 408.814(1), Fla. Stat.
(2017). It also cited section 400.141, Florida Statutes,
which requires nursing homes to maintain their facilities in
a safe manner, and section 400.102, which permits the agency
to act where nursing home staff commits an intentional or