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Rehabilitation Center at Hollywood Hills, LLC v. State

Florida Court of Appeals, First District

June 20, 2018

Rehabilitation Center at Hollywood Hills, LLC, Appellant/Petitioner,
v.
State of Florida, Agency for Health Care Administration, Appellee/Respondent.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Agency for Health Care Administration. Justin M. Senior, Secretary.

         Petition for Review of Emergency Administrative Order- Original Jurisdiction.

         Petition for Review of Emergency Suspension Order-Original Jurisdiction.

          Geoffrey D. Smith, Timothy B. Elliott, and Corinne T. Porcher of Smith & Associates, Tallahassee, for Appellant/Petitioner.

          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.

          Wolf, J.

         Rehabilitation 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.

         In case 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.

         The 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.

         The 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.

         We 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 their imposition.

         As to 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.

          I. Facts

         Immediate Moratorium on Admissions, 1D17-3883

         On 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 effectively.
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 fans.
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.

         Based 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 narrowly tailored.

         As 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 ...


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