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Florida Association of Homes and Services for Aging, Inc. v. Agency for Health Care Administration

Florida Court of Appeals, First District

July 25, 2018

Florida Association of Homes and Services for the Aging, Inc. d/b/a Leading Age Florida, Petitioner,
v.
Agency for Health Care Administration, Department of Elder Affairs, Respondents.

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

          A Petition to Review Non-Final Agency Action - Original Jurisdiction

          Seann M. Frazier and Marc Ito of Parker, Hudson, Rainer & Dobbs, Tallahassee, for Petitioner.

          William H. Roberts of the Agency for Health Care Administration, Tallahassee; and Stefan R. Grow of the Department of Elder Affairs, Tallahassee, for Respondents.

          M.K. THOMAS, J.

         Petitioners, in these consolidated cases, seek review of Emergency Rules 58AER17-1, Procedures Regarding Emergency Environmental Control for Assisted Living Facilities, and 59AER17-1, Nursing Home Emergency Power Plan. Petitioners contend that the findings of immediate danger, necessity, and procedural fairness on which the rules are based are insufficient under section 120.54(4), Florida Statutes (2017). The petitions for review are denied because we find that the agencies have presented a sufficient factual basis that an immediate danger to the public health, safety, or welfare existed.

         We have jurisdiction pursuant to section 120.54(4)(a)3., Florida Statutes. See also Little v. Coler, 557 So.2d 157, 158 (Fla. 1st DCA 1990). The petitions at issue were previously denied by emergency order, which advised that a substantive opinion would be forthcoming. We write now to provide this Court's reasoning. The petitions are denied because this Court's review is limited to inspection of the four corners of the emergency rules, which sufficiently set forth the immediate danger to the public safety or welfare the rules were designed to address.

         Section 120.54(4)(a) provides an agency with the authority to adopt an emergency rule if it "finds that an immediate danger to the public health, safety, or welfare requires emergency action," and such rule is "necessitated by the immediate danger." The agency may adopt an emergency rule by any procedure, which is fair under the circumstances, so long as: (1) the procedure provides a minimum amount of procedural protection; (2) the agency takes only that action necessary to protect the public interest; and (3) the agency publishes, in writing, the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding the procedure used is fair under the circumstances. Id. "In order to utilize emergency rulemaking procedures, rather than employing standard rulemaking, an agency must express reasons at the time of promulgation of the rule for finding a genuine emergency." Fla. Health Care Ass'n v. Agency for Health Care Admin., 734 So.2d 1052, 1053 (Fla. 1st DCA 1998).

         Because the emergency rulemaking procedures do not afford parties either the full panoply of due process protections or the protections of economic impact analyses as required by the regular rulemaking process, the agencies must strictly adhere to the requirements set forth in section 120.54 when adopting emergency rules. See Krajenta v. Div. of Workers' Comp., Dep't of Labor and Emp't Sec., 376 So.2d 1200, 1202 (Fla. 2d DCA 1979) (noting courts have not been hesitant to strike down emergency rules that were not adopted in strict compliance with the statute). "The courts generally do not concern themselves with the substantive validity of the emergency rule. Instead, the concern is whether the agency followed the requirements of section 120.54(4)(a)." Fla. Democratic Party v. Hood, 884 So.2d 1148, 1151 (Fla. 1st DCA 2004) (internal citation omitted).

         As stated above, section 120.54(4)(a) requires the agencies to set forth the reasons, in writing, both for the finding that an emergency exists and to explain why the procedure utilized to adopt the rule is fair. On review, this Court looks only to the reasons set forth by the agency as the basis for adopting the rule to determine its validity. Hood, 884 So.2d at 1153. It is not this Court's responsibility to determine whether other means may have been more appropriate. Id.

         Additionally, because of the accelerated emergency rulemaking process, our review occurs prior to any hearings or rulings below. Thus, the record on appeal is limited to the four corners of the emergency rules themselves. See § 120.68(4), Fla. Stat.; Pinacoteca Corp. v. Dep't of Bus. Regulation, Div. of Alcoholic Beverages and Tobacco, 580 So.2d 881, 882 (Fla. 4th DCA 1991); Commercial Consultants Corp. v. Dep't of Bus. Regulation, Div. of Fla. Land Sales and Condos., 363 So.2d 1162, 1164 (Fla. 1st DCA 1978). Therefore, this Court must determine whether the four corners of the emergency rules sufficiently identify particularized facts showing an immediate danger to the public welfare. Denney v. Conner, 462 So.2d 534, 535-36 (Fla. 1st DCA 1985).

         Here, the emergency rules at issue, as introduced in the Florida Administrative Register, include almost identical statements setting forth the specific reasons for finding an immediate danger to the public health, safety, or welfare:

The State has experienced extreme shortages of electrical power that have jeopardized, and continue to jeopardize, the health, safety, and welfare of residents in Florida's [regulated facilities]. According to the United States Census Bureau, Florida has the largest percentage of residents age 65 and older in the nation. According to the Centers for Disease Control and Prevention, people age 65 years or older are more prone to heat-related health problems. An incompetent response by a nursing facility to a loss of air conditioning after Hurricane Irma resulted in the tragic loss of eight senior citizens at the Rehabilitation Center at Hollywood Hills. Thousands of frail seniors reside in [regulated facilities] in Florida. Ensuring that [regulated facilities] maintain sufficient resources to provide alternative power sources during emergency situations mitigates the concerns related to the health, safety, and welfare of residents in those [regulated facilities] that experience loss of electrical power. This emergency rule establishes a process for [regulated facilities] to obtain sufficient equipment and resources to ensure that the ambient temperature of the [regulated facilities] will be maintained at 80 degrees or less within the facilities for a minimum of ninety-six (96) hours in the event of the loss of electrical power. Prompt implementation of this rule is necessary to ensure continuity of care and to ensure the health, safety, and welfare of residents of Florida's [regulated facilities].

43 Fla. Admin. Reg. 180 (Sept. 18, 2017).

         The rules also include identical statements regarding the reason for concluding the procedure used was fair under the circumstances:

The procedure used to adopt this emergency rule is fair, as the State of Florida is under a declaration of emergency due to the massive destruction caused by Hurricane Irma, and it is essential to ensure as soon as possible that temperatures in [regulated facilities] are maintained at a level providing for the safety of the residents residing therein; provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution; and takes only the action necessary to protect the public interest under the emergency procedure.

43 Fla. Admin. Reg. 180 (Sept. 18, 2017)

         Given the limited nature of our review, we conclude the reasons given by the agencies are compliant with the standards set forth in section 120.54(4). The factually explicit emergency rules are persuasive and are sufficient to show an immediate danger to the public health, safety, or welfare. Accordingly, the petitions for review are Denied.

          Jay, J., concurs; Wolf, J., dissents with opinion.

          Wolf, J., dissenting.

         In light of the tragedy that took 8 lives at the Rehabilitation Center at Hollywood Hills in September 2017, the State of Florida was justified in taking immediate action against the facility that failed to provide for the safety of its residents. See Rehab. Ctr. at Hollywood Hills v. Agency for Health Care Admin., 43 Fla.L.Weekly D1377 (Fla. 1st DCA June 20, 2018) (upholding emergency suspension of the facility's license). Remedial action, including requiring installation of generators and fuel to operate the generators for 96 hours ...


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