IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT. Petitioner, CASE NO. 1D vs. AHCA NO

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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT RECEIVED, 11/15/ :24 AM, Kristina Samuels, First District Court of Appeal REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC, Petitioner, CASE NO. 1D vs. AHCA NO STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. PETITIONER S AMENDED 1 REPLY TO AHCA S RESPONSE TO ORDER TO SHOW CAUSE REGARDING PETITION FOR REVIEW OF EMERGENCY SUSPENSION ORDER Geoffrey D. Smith Timothy B. Elliott Corinne T. Porcher Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, Florida geoff@smithlawtlh.com tim@smithlawtlh.com corinne@smithlawtlh.com Attorneys for Petitioner Rehabilitation Center at Hollywood Hills, LLC 1 Amended to correct Appendix page numbers throughout Reply.

2 Petitioner, Rehabilitation Center at Hollywood Hills, LLC ( Petitioner or Hollywood Hills ), pursuant to rule 9.100(k), Florida Rules of Appellate Procedure, files this Reply to Response to Order to Show Cause Regarding Petition for Review of Emergency Suspension Order (ESO) issued by the Agency for Health Care Administration (AHCA) on September 20, Petitioner urges this Court to quash the ESO because it is facially deficient as a matter of law. I. A PENDING ADMINISTRATIVE PROCEEDING DOES NOT ALLEVIATE AHCA S BURDEN TO DEMONSTRATE THE ESSENTIAL ELEMENTS OF AN ESO ON THE FACE OF THE DOCUMENT. In its Response to Order to Show Cause, AHCA argues that Hollywood Hills Petition for Review should not be granted because there is a pending administrative proceeding at the Division of Administrative Hearings (DOAH). (Section II of AHCA s Response.) This is not the correct standard of review for emergency orders by a District Court, nor is it a basis for upholding an ESO that is facially deficient of the essential elements of an emergency order prior to the initiation of any administrative proceedings on the merits of AHCA s actions. Florida law is clear that an agency must state, within the four corners of an emergency order entered pursuant to section (6), Florida Statutes, the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and reasons for concluding that the procedure used is fair under 1

3 the circumstances. Mendelsohn v. State, Dept. of Health, 68 So.3d 965, 967 (Fla. 1 st DCA 2011); See, also, Daube v. Florida Department of Health, 897 So.2d 493 (Fla. 1st DCA 2005); Florida Administrative Practice, The Florida Bar (10 th Ed.) The factual allegations of a legally sufficient emergency suspension order must demonstrate: (1) the complained of conduct is likely to continue; (2) the order is necessary to stop the emergency; and (3) the order is sufficiently narrowly tailored to be fair. Kaplan v. State, Dept. of Health, 45 So.3d 19, (Fla. 1 st DCA 2010); Nath v. State Dept. of Health, 100 So.3d 1273 (Fla. 1 st DCA 2012); Bio-Med Plus, Inc. v. Department of Health, 915 So. 2d 669 (Fla. 1st DCA 2005). These essential elements of an emergency order are required because the order allows an agency to take action affected the substantial interests of a licensee prior to an administrative hearing on the underlying facts. There is no such statute or case law that alleviates an agency s duty to comply with the essential elements of emergency orders if an administrative hearing on the underlying merits has been initiated. Section , Florida Statutes, and Rule , Florida Administrative Code, requires the agency to initiate an administrative proceeding within 20 days following the issuance of an emergency order. However, contrary to the argument in AHCA s response, the provision of an administrative complaint and hearing on the underlying facts does not relieve the 2

4 agency from complying with the essential elements of the law with regard to the sufficiency of an emergency order. AHCA also argues, incorrectly, that its obligation to comply with the essential elements of an emergency order is excused because the facility has a current census of zero (0) residents. This fact, which is stated on the face of the ESO, does not alleviate the Agency s burden under the law. Rather, this fact supports the Petitioner s argument that the ESO is legally deficient because no emergency currently exists at the nursing home to justify the finding of an immediate danger to the residents as required section (6), Florida Statutes. 2 AHCA also argues that its ESO contains sufficient particularized facts to demonstrate immediate danger. However, the facts provided by AHCA all relate to past actions of the Respondent and are stated in a conclusory way: Respondent knew or should have known the danger presented to residents in its physical plant, yet failed to monitor, care for, and protect its residents. Respondent s sole identified response was to belatedly call 911 on an individual basis as its residents suffered, one after another, cardiac or respiratory arrest. (App. 16) Thus, the Agency concludes that calling 911 on an individual basis was wrong, but does not cite to a specific violation of any statute or rule to support its 2 The Agency s response also states, on page 9, that contemporaneous newspaper reports indicate that all employees have been laid off and the facility is not currently operating. Petitioner urges the Court to disregard this and other nonrecord evidence provided by AHCA to justify the lawfulness of its ESO. 3

5 conclusion. AHCA also concludes that the 911 calls were belated, but, again, bases this conclusion on some unspoken standard that is not addressed in the ESO. Additionally, the Agency reprimands the Respondent, stating that calling 911 was Respondent s sole identified response to signs of distress from individual residents. However, in the Summary of the ESO, the Agency states that the failure to timely contact 911 during a medical emergency is one of the reasons for the ESO. (App. 5) The Agency contradicts itself by stating in the ESO that took other remedial actions after it lost power to its air-conditioning: In addition to contacting the local electrical power provider, Respondent situated eight (8) portable air coolers somewhere in the facility and equipped the halls with fans and Respondent ultimately evacuated the entire building. (App. 8) The ESO is replete with inconsistencies and conclusory statements by the Agency in an effort to meet the essential elements of an emergency order, but falls short of the requirements. Rather, it is clear that AHCA is retrospectively punishing Hollywood Hills, before the conclusion of an administrative hearing, in the most severe manner possible because of the unfortunate and unexpected deaths that occurred on September 13, There simply was no way that Hollywood Hills could have foreseen the deaths of 8 residents as it was dealing with the power outage in real time. Only in retrospect can such tragedies be understood. Although the events on that day are the subject of much emotion and publicity, the Agency cannot issue an 4

6 ESO without providing specific facts showing an immediate danger to the public health, safety or welfare; and a demonstration that such measures are the leastrestrictive possible. In an effort to punish Petitioner, the Agency tries to impute negligent or intentional conduct onto Hollywood Hills that simply is not reflected in any AHCA rule or statute relating to nursing homes. While ESO states that Respondent didn t call 911 quickly enough, or evacuate the entire facility to a nearby hospital, these admonishments are not based on the violation of specific rules or statutory requirements that regulate nursing homes. In fact, Respondent followed all the rules, statutes and, more specifically, the Emergency Preparedness Plan that was preapproved by AHCA and local agencies prior to the storm. Cases cited by AHCA to support upholding an ESO when there is physical harm are distinguishable to the instant case. In those cases, there was intentional or negligent conduct that foreseeably lead to physical harm and such conduct was in violation of an administrative rule or statute. Tauber v. State Board of Osteopathic Medical Examiners, 362 So.2d 90 (Fla. 4 th DCA)(petitioner repeatedly violated standard of care at multiple hospitals and over extended period of time leading to death of patient); White Construction Company, Inc. v. Florida Dept. of Transportation, 651 So.2d 1302 (Fla. 1 st DCA 1995)(limerock material for road project failed to meet the Department s minimum standards for limerock bearing 5

7 ratios in Rule (2), Florida Administrative Code). In this case, the Petitioner did not cause the power outage and did, in fact, take numerous remedial steps including repeated contacts to the proper authorities for help and situating cooling units and fans while awaiting assistance. Most importantly, as the ESO also alleges, the Respondent did call 911 as each resident showed signs of distress and, ultimately, evacuated the entire facility. (App. 8) Respondent could not have predicted, on day one of the Hurricane, the magnitude of the tragedy that was to unfold. AHCA s emergency order must contain more than a general, conclusory prediction of harm. Premier Travel International, Inc. v. Florida Department of Agriculture & Consumer Services, 846 So.2d 1132 (Fla. 1 st DCA 2003); White Construction Co., Inc. v. State, Department of Transportation, 651 So. 2d 1302 (Fla. 1st DCA 1995); Lawler, III v. State of Florida, Department of Health, 217 So. 3d 208 (Fla. 1 st DCA 2017); Webber v. State of Florida, Department of Business and Professional Regulation, 198 So. 3d 922 (Fla. 1 st DCA 2016). The existence of a genuine emergency must be made within the four corners of the agency s order. White, supra. A showing of a licensee s propensity to commit future violations is not enough. Witmer v. Department of Business and Professional Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994). There must be sufficient specific and particularized facts stated that demonstrate an immediate ongoing danger to the public. Id. at

8 Again, neither the ESO nor AHCA s response to this Court s Order to Show Cause contains any statements of specific conduct on the part of an employee or administrator of Hollywood Hills that intentionally or negligently violated a nursing home rule or statute. Instead, AHCA attempts to allege a causal connection between the conditions of the nursing home (loss of power to air-conditioning) and a failure to evacuate sooner than it did with the unfortunate deaths of the residents. II. THE ESO FAILS TO DEMONSTRATE ANY EMERGENCY, EXISTING OR CONTINUING, BECAUSE THE ESO ACKNOWLEDGES THAT THE FACILITY WAS COMPLETELY EVACUATED AND CURRENTLY HAS ZERO RESIDENTS. The second element that must be demonstrated on the face of the ESO is that the order is necessary to stop the emergency. Kaplan v. State, Dept. of Health, 45 So.3d 19, (Fla. 1 st DCA 2010). In its response, AHCA argues that the emergency was not absolved by the passing of Hurricane Irma and the restoration of Hollywood Hills air-conditioning unit, but rather, the emergency was the woefully inadequate practices, policies and response to the circumstances. (Pg. 17, AHCA s Response.) However, the ESO (and the Agency s Response) fails to state precisely how the Petitioner s practices, policies and response were in violation of any laws. In fact, the practices, policies and response were pre-approved in the Petitioner s Emergency Preparedness Plan prior to the storm. Furthermore, AHCA has not indicated what changes to Hollywood Hills practices and policies should be 7

9 made, either by rule, mandate or otherwise, or why such changes would require emergency action. While the loss of residents at Petitioner s facility has spurred rule development by AHCA to require nursing homes to be equipped with generators capable of powering an air-conditioner for three days. No other rule, emergency or otherwise, has been proposed. Therefore, it s safe to assume that it was, in fact, the lack of power to Petitioner s air-conditioning unit that AHCA deemed the emergency. Petitioner did not intentionally or negligently cause the power outage to its air-conditioning unit. Furthermore, the facility took reasonable remedial steps to address the power outage and sought help from numerous agencies, the Governor and the power company, not foreseeing the extent of the harm to the residents that would ensue. Emergency orders cannot be used to punish past behavior. Daube, 897 So.2d at 495. There is an established procedure under the Administrative Procedures Act, Chapter 120, that permits AHCA to take disciplinary action against Hollywood Hills for alleged violations, with the right to an administrative hearing on the disputed facts. Section (1), Florida Statutes. Because an emergency order deprives the aggrieved party of due process rights, it must adequately demonstrate or explain why the complained-of conduct is likely to continue and why the conduct places the public in immediate danger. Premier Travel International, Inc. v Florida Department 8

10 of Agriculture and Consumer Services, 849 So.2d 1132, 1134 (Fla. 1 st DCA 2003). Unless there is a specific showing that the harmful conduct in question is likely to continue, an agency must forego an emergency order and initiate a Chapter 120 administrative proceeding. Id. at 1135; Duabe, 897 So. 2d at 495; Bio-Med, 915 So. 2d at 673; and Crudele v. Nelson, 698 So. 2d 879, 880 (Fla. 1 st DCA 1997). Here, the Order acknowledges that Hollywood Hills evacuated all remaining residents from the facility prior to issuance of the ESO and that the census at Hollywood Hills is zero (0) residents. Therefore, by virtue of the fact that the facility is empty, there can be no finding of a continuing emergency and the ESO must be quashed. Additionally, there is no factual demonstration within the four corners of the ESO that the complained-of conduct is likely to ever happen again. In fact, the Agency is engaged in rulemaking to require generators at nursing homes specifically to prevent such a reoccurrence from happening again. 3 3 AHCA issued an emergency rule on September 16, 2017, after the events recounted in the emergency order and statewide power outages caused by Hurricane Irma, requiring installation of generators to power AC units in nursing homes within 60 days of the rule s issuance. Emergency Rule 59AER17-1, Florida Administrative Code. The rule was upheld on review by this Court in Florida Association of Homes and Services v. Agency for Health Care Administration, Case No. 1D ; Florida Assisted Living Association, Inc. v. Florida Department of Elder Affairs, Case No. 1D ; and Florida Argentum Inc. v. Florida Department of Elder Affairs, Case No. 1D , but found to be invalid by Final Order following an administrative challenge filed by the same petitioners in DOAH Case Nos RE, RE and RE (consolidated). 9

11 As such, the ESO lacks the recitation of any wrongful conduct and why the Petitioner s conduct creates an immediate danger that is likely to continue absent a suspension of its facility license. Because the facility has been completely evacuated, has zero (0) residents, there has been no sufficient demonstration by AHCA that there is an immediate danger that is likely to continue without the IFSO. III. THE ESO IS NOT NARROWLY TAILORED TO ADDRESS THE ALLEGED EMERGENCY. Finally, and most importantly, AHCA s ESO is not narrowly tailored to offer the least restrictive remedy to stop the alleged harm. An agency must demonstrate on the face of the ESO that the order is necessary to stop the emergency; and (3) the order is sufficiently narrowly tailored to be fair. Kaplan v. State, Dept. of Health, 45 So.3d 19, (Fla. 1 st DCA 2010); Daube, 897 So.2d at 494 ( Because the agency s emergency order was broader than necessary to protect the public interest under the emergency procedure as provided in section (6)(b), a more narrowly tailored emergency order is appropriate. ) In order for the order to be sufficiently narrowly-tailored, the order must explain why lesser sanctions would be insufficient. Burton v. State, Dept. of Health, 116 So.3d 1285 (Fla. 1 st DCA 2013); Preferred RV, Inc. v. Dept. of Highway Safety & Motor Vehicles, Division of Motor Vehicles, 869 So.2d 713 (Fla. 1 st DCA 2004). 10

12 In this case, AHCA s order does not explain why lesser sanctions are insufficient. In fact, AHCA does not even provide the length of time for the suspension to be in effect (for example, until generator installed, air-conditioning is functioning, policies and procedures are changed, Emergency Preparedness Plan is amended, etc.). Nor does AHCA explain why other restrictions would not suffice (administrative fines, additional facility surveys, additional monitoring requirements). Instead, the ESO makes conclusory statements such as: Less restrictive actions, such as the assessment of administrative fines, will not ensure that future residents receive the appropriate care, services, and environment dictated by Florida law. (App. 18) This remedy is narrowly tailored to address the specific harm in this instance. (App. 19) These are conclusory statements and not representative of a sufficient explanation of why lesser sanctions would not suffice. For this reason alone, the Court should quash the ESO issued by AHCA. Overly broad emergency orders are discouraged by Florida courts where immediacy of public harm is lacking. See, e.g., Henson v. Department of Health, 922 So. 2d 376 (Fla. 1st DCA 2006) (department s emergency order suspending doctor s license to practice osteopathic medicine quashed as broader than necessary to protect the public and order could have been narrowly tailored to prevent narcotics prescriptions until administrative proceeding had been completed); Cunningham v. AHCA, 677 So. 2d 61 (Fla. 1st DCA 1996) (emergency suspension of psychiatrist s 11

13 license was too broad in that it could be more narrowly tailored to the specific treatment of prescribing narcotics and treating only the three patients allegedly harmed by doctor s actions); Duabe v. Department of Health, 897 So. 2d 493, 495 (Fla. 1st DCA 2005) (emergency order to suspend petitioner s license before administrative complaint was issued was unnecessary where petitioner stopped using the unapproved product on patients and destroyed his remaining supply before the emergency order was issued). The Agency s ESO in this case has failed to meet the essential elements of an emergency order by failing to state particularized and specific facts on its face that demonstrate an immediate danger to the public health, welfare or safety, and failed to explain why lesser sanctions would not suffice. The ESO was issued for an improper purpose (punishment) and addresses no immediate emergency because the facility has been fully evacuated as stated on the face of the order. Additionally, the Agency failed to demonstrate why the harm to the Petitioner s residents is likely to continue. WHEREFORE, the Petitioner requests this Court to enter an order quashing the ESO as insufficient under the mandates of section (6), Florida Statutes (2017), and controlling case law on emergency orders. Respectfully submitted this 15th day of November,

14 Respectfully submitted, /S/ GEOFFREY D. SMITH GEOFFREY D. SMITH Florida Bar No TIMOTHY B. ELLIOTT Florida Bar No CORINNE T. PORCHER Florida Bar No SMITH & ASSOCIATES 3301 Thomasville Rd., Ste. 201 Tallahassee, Florida Attorneys for Petitioner, Rehabilitation Center at Hollywood Hills, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing has been electronically filed with the Clerk, District Court of Appeal of Florida, First District, this 15th day of November I further certify that copies of the foregoing have been furnished by to the following on this 15th day of November Stephen A. Ecenia, Esq. J. Stephen Menton, Esq. Gabriel F. V. Warren, Esq. Rutledge Ecenia 119 S. Monroe St., Ste. 202 Tallahassee, FL steve@rutledge-ecenia.com 13

15 Counsel for State of Florida, Agency for Health Care Administration Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Building #3, MS # 3 Tallahassee, FL Justin.Senior@ahca.myflorida.com Tracy Lee Cooper George, Esq. Chief Appellate Counsel 2727 Mahan Drive, Tallahassee, FL Tracy.George@ahca.myflorida.com Counsel for State of Florida, Agency for Health Care Administration Leslei Street, Esq., Chief Litigation Counsel Andrew T. Sheeran, Esq., Assistant General Counsel 2727 Mahan Drive, Tallahassee, FL Leslei.Street@ahca.myflorida.com Andrew.Sheeran@ahca.myflorida.com Counsel for State of Florida, Agency for Health Care Administration /S/ GEOFFREY D. SMITH GEOFFREY D. SMITH CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the type size and style requirements and has been prepared in Times New Roman, 14 Point Font. /S/ GEOFFREY D. SMITH GEOFFREY D. SMITH S:\ Hollywood Hills Appeal of ESO\Pleadings\Draft\Reply Brief ESO docx 14