17-005409RE Florida Assisted Living Association, Inc., A Florida Not For Profit Corporation vs. Florida Department Of Elder Affairs Status: Closed DOAH Final Order on Friday, October 27, 2017.

Summary: Respondents failed to demonstrate the existence of an immediate danger. Also, Petitioners demonstrated that the Emergency Rules are invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ASSOCIATION OF HOMES AND

SERVICES FOR THE AGING, INC.,

d/b/a LEADINGAGE FLORIDA,

Petitioner,

vs. Case No. 17 - 5388RE

AGENCY FOR HEALTH CARE

ADMINISTRATION, AND DEPARTMENT

OF ELDER AFFAIRS,

Responden ts.

_______________________________/

FLORIDA ASSISTED LIVING

ASSOCIATION, INC., A FLORIDA NOT

FOR PROFIT CORPORATION,

Petitioner,

vs. Case No. 17 - 5409RE

FLORIDA DEPARTMENT OF ELDER

AFFAIRS,

Respondent.

_______________________________/

FLORIDA ARGENTUM ,

Pe titioner,

vs. Case No. 17 - 5445RE

DEPARTMENT OF ELDER AFFAIRS ,

Respondent.

_______________________________/

FINAL ORDER ON FEES

This matter came before Administrative Law Judge Garnett W.

Chisenhall of the Division of Administrative Hearings (ÐDOAHÑ).

The parties stipulated to the material facts and agreed to submit

written arguments in lieu of an evidentiary hearing.

STATEMENT OF THE ISSUE

Whether there is substantial justific ation or special

circumstances to preclude Petitioners from receiving an award of

attorneysÓ fees and costs pursuant to section 120.595(3), Florida

Statutes (2017). 1/

PRELIMINARY STATEMENT

On October 27, 2017, the undersigned issued a Final Order

(Ðthe Final OrderÑ) holding that Florida Administrative Code

Emergency Rules 58AER17 - 1 and 59AER17 - 1 (Ðthe Emergency RulesÑ)

were invalid exercises of delegated legislative authority as

defined in section 120.52(8). The undersigned reserved

jurisdiction to consi der motions for fees and costs pursuant to

section 120.595(3). Because such motions had already been filed,

the Agency for Health Care Administration and the Department of

Elder Affairs (collectively referred to as Ðthe AgenciesÑ) were

given 10 days to fi le responses to the aforementioned motions.

Via a Notice of Administrative Appeal , filed October 27,

2017, the Agencies sought judicial review of the Final Order

before the First District Court of Appeal (Ðthe First DCAÑ or

Ðthe CourtÑ).

On November 3, 2017, the Agencies filed a ÐJoint Response

and Motion for Abeyance of PetitionersÓ Motions for AttorneysÓ

FeesÑ and requested that proceedings on PetitionersÓ entitlement

to an award of fees and costs be abated pending the outcome of

multiple appeals befo re the First DCA involving the Emergency

Rules.

During the pendency of the appeal from the Final Order, the

Florida Legislature ratified rules proposed by the Agencies to

replace the Emergency Rules . As a result, the Agencies

voluntarily dismissed the ir appeal of the Final Order because the

legislative ratification rendered moot most of the issues between

the parties.

The First DCA issued an Order on March 21, 2018, dismissing

the AgenciesÓ appeal of the Final Order, and Petitioners

subsequently renewed their earlier motions for attorneysÓ fees.

On May 4, 2018, the Agencies filed a motion requesting that

proceedings regarding attorneysÓ fees be abated until the First

DCA issued an opinion expl aining the rationale behind an O rder

that denied cha llenges to the facial validity of the Emergency

Rules. According to the Agencies, the First DCAÓs decision would

impact Ðthe determination of whether [the AgenciesÓ] actions were

substantially justified and/or whether special circumstances

exist which wou ld make an award of attorneysÓ fees unjust as set

forth in section 120.595(3), Florida Statutes.Ñ

On May 17, 2018, the undersigned issued an Order concluding

that the First DCAÓs reasoning as to why the Emergency Rules were

facially sufficient had no bea ring on whether the AgenciesÓ

actions were substantially justified or whether special

circumstances exist which would make an award of fees unjust.

After considering several pleadings filed by the parties,

the undersigned issued an Order on June 5, 2018, stating :

[T ]he undersigned has determined that an

evidentiary hearing is necessary in order to

assess whether the pertinent actions of [the

Agencies] were substantially justified or if

special circumstances exist which would make

an award of attorneysÓ fe es and costs unjust.

If necessary, the reasonableness of the

attorneysÓ fees and costs sought by

Petitioners shall also be considered. As a

result, the parties shall provide the

undersigned with the following information by

June 12, 2018: (a) dates of a vailability in

July and August of 2018, for an evidentiary

hearing; and (b) an estimate as to the amount

of time necessary for the evidentiary

hearing.

The parties indicated that they preferred to schedule the

evidentiary hearing to occur in Septembe r of 2018. Because of

scheduling conflicts, the undersigned issued an Order on June 13,

2018, requiring the parties to identify additional days of mutual

availability in September and October of 2018.

A Notice of Hearing was issued on June 27, 2018, sch eduling

the final hearing to occur on October 29 and 30, 2018.

On July 9, 2018, the undersigned issued an Order regarding

the applicability of the $ 50,000.00 cap on attorneysÓ fees in

section 120.595(3). Because the Florida Association of Homes and

Serv ices for the Aging, Inc. , d/b/a LeadingAge Florida

(ÐLeadingAge FloridaÑ) , was the only Petitioner to challenge

Emergency Rule 59AER17 - 1, the undersigned concluded that

LeadingAge Florida would be entitled to a separate fee award not

in excess of $ 50,000.0 0 unless the Agency for Health Care

Administration (ÐAHCAÑ) could demonstrate that its actions were

substantially justified or special circumstances exist which

would make an award of fees unjust. In contrast, all three

Petitioners challenged Emergency Ru le 58AER17 - 1. Therefore, the

undersigned concluded that Petitioners would have to apportion an

award of fees not exceeding $ 50,000.00 unless the Department of

Elder Affairs (ÐDOEAÑ) could demonstrate that its actions were

substantially justified or specia l circumstances exist which

would make an award of fees unjust.

On October 26, 2018, the parties jointly moved for entry of

an order allowing for the submission of written arguments by

November 9, 2018, in lieu of an evidentiary hearing. In support

the reof, the parties stated that each Petitioner incurred

reasonable costs and reasonable attorneysÓ fees exceeding

$ 50,000.00 . The undersigned advised the parties that the final

hearing would be canceled and thereafter issued an Order on

October 30, 2018, g ranting the aforementioned motion, canceling

the evidentiary hearing scheduled for October 29 and 30, 2018,

and requiring the parties to file written arguments of no more

than 20 pages by November 9, 2018. The parties timely filed

their written submission s, and those submissions were considered

in the preparation of this Final Order.

FINDINGS OF FACT

The following findings of fact are based on the testimony

presented at the final hearing on the merits of the Emergency

Rules conducted on October 12 and 13, 2017, exhibits accepted

into evidence during the aforementioned final hearing, admitted

facts set forth in all pre - hearing stipulations, and matters

subject to official recognition.

The Parties

1. LeadingAge Florida is a trade association whose

membershi p includes 75 nursing homes and 79 assisted living

facilities (ÐALFsÑ). LeadingAge FloridaÓs services include the

provision of legislative and regulatory advocacy on behalf of its

members.

2. The Florida Assisted Living Association, Inc. (ÐFALAÑ) ,

is a professional organization whose membership includes 592

ALFs. FALA advocates on its membersÓ behalf before the

legislative and executive branches.

3. Florida Argentum has 367 members and represents

companies that operate professionally managed senior living

communities, including independent living, assisted living, and

memory care communities, as well as allied companies that serve

senior living operators in the State of Florida.

4. AHCA is the state agency in Florida responsible for

licensing nursin g homes and ALFs. AHCAÓs staff inspects nursing

homes and ALFs in order to ensure compliance with the statutes

and rules governing those facilities.

5. AHCA promulgates the rules governing nursing homes.

6. DOEA is one of the state agencies charge d with

implementing the Assisted Living Facilities Act under Part I of

chapter 429, Florida Statute s . DOEA consults with AHCA in order

to promulgate the rules governing ALFs.

7. Florida Administrative Code Rule 59A - 4.122(1)(e)

requires nursing homes to maintain Ð[c]omfortable and safe

room temperature levels in accordance with 42 CFR,

Section 483.15(h)(6), which is effective October 1, 2014 . . . .Ñ

The version of 42 C.F.R. § 483.15 cited by the rule mandates that

Ð[f]acilities initially certified aft er October 1, 1990 [,] must

maintain a temperature range of 71 - 81 »F.Ñ No exceptions are

mentioned.

8. Florida Administrative Code Rule 65G - 2.007(8)(a)

mandates that indoor temperatures at ALFs Ðshall be maintained

within a range of 68 degrees to 80 degr ees, as appropriate for

the climate.Ñ No exceptions are mentioned.

Hurricane Irma and Its Aftermath

9. Hurricane Irma was approaching Florida during the first

full week of September 2017. There were numerous situations

during the pre - storm evacuation p rocess in which residents of

nursing homes and ALFs could not be successfully evacuated to the

originally planned destinations because those destinations were

already filled with evacuees. In many instances, alternative

arrangements had to be made in the midst of the emergency

conditions and, often, the alternative shelters were not equipped

to provide an appropriate level of care and/or did not have

generators or the ability to house the patients for extended

periods of time.

10. Many nursing homes and ALFs were without power for more

than 72 hours after the storm and had a difficult time

maintaining their indoor temperatures at the required levels.

11. Even facilities that had generators experienced

difficulty due to a shortage of fuel during Hu rricane IrmaÓs

aftermath or because of a lack of generator capacity to power

their air conditioning.

12. Residents at some nursing homes and ALFs suffered from

overheating, and they were transferred to hospitals because

temperatures within the facilitie s had become excessively warm.

13. Temperatures in some facilities became so high that

AHCA ordered them to be evacuated.

14. In the days after Hurricane Irma, AHCA and DOEA

concluded that nursing homes and ALFs needed to be more self -

sufficient. Th at would reduce the need for evacuations and the

need for nursing homes and ALFs to seek emergency assistance if

electricity could not be promptly restored following a hurricane.

The Tragedy at Hollywood Hills Nursing Home

15. In the aftermath of Hurric ane Irma, eight residents at

the Rehabilitation Center of Hollywood Hills, LLC (ÐHollywood

HillsÑ), a nursing home located in Hollywood Hills, Florida,

died. Hollywood HillsÓ air conditioning equipment had ceased to

operate effectively, and the deceased r esidents had arrived at a

hospital with core body temperatures approaching 110 degrees

Fahrenheit.

The Emergency Rules

16. On Saturday, September 16, 2017, AHCA approved the

adoption of Emergency Rule 59AER17 - 1 , which imposed the following

requirements on nursing homes: (a) development of a plan

regarding emergency environmental control within 45 days (i.e.,

October 31, 2017); (b) acquisition of a generator within 60 days

(i.e., November 15, 2017); and (c) acquisition of enough fuel by

November 15, 2017 , to power the aforementioned generator

for 96 hours.

17. On September 18, 2017, DOEA filed Emergency

Rule 58AER17 - 1 with the Department of State. Emergency

Rule 58AER17 - 1 imposed the same requirements on ALFs that were

imposed on nursing homes by Emergency Rule 59AER17 - 1.

18. With regard to the specific reasons why there was an

Ðimmediate danger to the public health, safety or welfare,Ñ the

Emergency Rules stated the following:

The State has experienced extreme shortages

of electrical power th at have jeopardized,

and continue to jeopardize, the health,

safety, and welfare of residents in FloridaÓs

nursing homes. According to the United

States Census Bureau, Florida has the largest

percentage of residents age 65 and older in

the nation. Accord ing 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 los s of eight senior citizens at

the Rehabilitation Center at Hollywood Hills.

Thousands of frail seniors reside in nursing

homes in Florida. Ensuring that nursing

homes 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 nursing homes that

experience loss of electrical power. This

emergency rule establishes a process for

certain nursing homes to obtain sufficient

equipment and resources to ensure that

the ambient temperature of the nursing

homes 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

FloridaÓs nursing homes.

19. As for why the method employed by AHCA and DOEA to

address the situation described above was fair under the

circumstances, the Emergency Rules explained that:

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

possi ble that temperatures in nursing homes

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.

Prior Evaluation of Whether Facilities Could Comply with the

November 15, 2017, Deadline

20. AHCA did not consult with the nursing home or ALF

industries bef ore adopting Emergency Rule 59AER17 - 1. DOEA did

not consult with the ALF industry prior to adopting Emergency

Rule 58AER17 - 1.

21. Before adoption of Emergency Rule 59AER17 - 1, AHCA

did not investigate whether the requirements imposed by the

Emergency Rul es were a workable solution that could address the

alleged emergency described in the preamble to the Emergency

Rules.

22. Before adoption of Emergency Rule 58AER17 - 1, DOEA did

not consider whether it was realistic to expect that ALFs could

comply with the Emergency RulesÓ requirements by November 15,

2017. In addition, DOEA had not: (a) formulated or procured any

estimates regarding the cost of compliance; (b) become aware of

the process and time frame for planning, permitting, procuring,

and installi ng a commercial generator; (c) consulted with any

generator suppliers to ascertain whether this increased need for

generators could be satisfied by November 15, 2017; (d) consulted

with electrical engineers as to whether 60 days was a reasonable

amount of time for compliance; and had not (e) consulted fuel

tank suppliers to ascertain if the fuel tanks necessary to comply

with Emergency Rule 58AER17 - 1 could be procured by November 15,

2017.

The Installation Process for Commercial Generators and Fuel Tanks

23. During the final hearing on October 12 and 13, 2017,

Electrical Engineer Michael Dodane provided persuasive expert

testimony regarding the time line required for nursing homes and

ALFs to comply with the Emergency Rules. Mr. Dodane credibly

testified that it is physically impossible for a facility to have

a new generator installed within the 60 - day time line set forth

in the Emergency Rules.

24. Mr. Jam es R. ÐSkipÑ Gregory, a former c hief of AHCAÓs

Office of Plans and Construction also credibly and persuasively

testified that it is impossible for a generator to be installed

within the 60 - day time frame set forth in the Emergency Rules.

Uncertainty About Compliance with the Emergency Rules

25. On September 22, 2017, the Florida Health Care

Association (Ðthe FHCAÑ) held an open summit in Tallahassee for

discussion about the Emergency Rules and how nursing homes and

ALFs could comply. Attendees included facility operators,

personnel from the Agencies, and industry experts and suppliers

with expertis e regarding generator installation at healthcare

facilities.

26. At the summit, expert panelists opined that 60 days was

an insufficient amount of time to comply with the Emergency

Rules.

27. In addition, the Agencies were notified that generator

manufacturers would not be able to fill orders quickly enough for

every nursing home and ALF needing a new generator to comply with

the Emergency Rules.

28. Justin Senior, AHCAÓs Secretary at the time, spoke at

the summit and indicated that the November 15, 2017, deadline

established by the Emergency Rules would not be extended.

However, Secretary Senior invited nursing homes and ALFs to

utilize the statutory waiver process 2/ if they could not comply

with the Emergency Rules.

29. Despite the AgenciesÓ p ublication between September 21,

and October 10, 2017, of many questions and answers pertaining to

compliance with the Emergency Rules, there were still unanswered

questions about compliance. For example, the Emergency Rules

were silent on how much of a n ursing home or ALFÓs physical space

had to be air conditioned. One of the questions and a nswers

published by the Agencies provided that only part of a facility

needed to be air conditioned, but there was no specification as

to which part. No square foota ge or other clear guidance was

provided. Instead, the answer merely stated that enough space

had to be provided to keep residents Ðcomfortable.Ñ

30. The Emergency Rules provided no guidance on where the

air conditioning should be provided in a nursing home or ALF.

31. The Emergency Rules did not give sufficient specificity

about electrical load requirements. The Emergency Rules required

that a generator power air conditioning for 96 hours, but they

did not specify what type of load the generator mus t power. The

building code in effect , at the pertinent time , required 72 hours

of connected load, but engineers can design generators for 96

hours of connected load, 96 hours of demand load, or 96 hours of

nameplate rating load, each requiring different a mounts of fuel.

32. Another unanswered question concerned permissible types

of fuel. The Emergency Rules would have allowed gasoline as a

fuel source. However, gasoline is generally considered to be a

poor fuel source for powering emergency generators because

gasoline is highly flammable and only remains usable for six

months unless stabilizers are added.

The Emergency Waiver Rules

33. On October 12, 2017, each of the Agencies published an

emergency rule describing how facilities could apply for a wai ver

and/or variance from the Emergency RulesÓ requirements.

The Existence of an ÐEmergencyÑ and Whether Nursing Homes and

ALFs Could Comply by November 15, 2017

34. AHCA and DOEA relied on the same statements in order to

justify the Emergency Rules. However, the greater weight of the

evidence presented during the evidentiary hearing on October 12

and 13, 2017, demonstrated that despite the tragic but singular

events at Hollywood Hills, there was not Ðan immediate danger to

the public health, safety or welfareÑ to constitute an emergency.

35. One justification for the Emergency Rules was that,

ÐAccording to the United States Census Bureau, Florida has the

largest percentage of residents age 65 and older in the nation.Ñ

AHCA admitted during the evide ntiary hearing that Florida has had

a high percentage of residents age 65 and older for decades. The

presence of elderly populations in Florida is not an emergency

situation.

36. Another justification for the Emergency Rules was that,

ÐAccording to the Centers for Disease Control and Prevention,

people age 65 years or older are more prone to heat - related

health problems.Ñ AHCA admitted during the evidentiary hearing

that this situation was not new or emergent. The effects of

prolonged heat exposure on the elderly have been known for years.

37. Another justification for the Emergency Rules was that,

ÐThousands of frail seniors reside in assisted living facilities

[and nursing homes] in Florida.Ñ Again, AHCA admitted that

thousands of frail seniors h ave resided safely in nursing homes

and ALFs for decades. This was not an emergent situation that

might justify the Emergency Rules.

38. In order to justify the Emergency Rules, AHCA and DOEA

also cited Ðan incompetent responseÑ by a nursing home in

Hollywood Hills, Florida, that resulted in the deaths of several

residents.

39. AHCA took appropriate and swift action by immediately

suspending Hollywood HillÓs license to operate a nursing home.

40. There was no evidence at the evidentiary hearing

indicating that the tragic situation at Hollywood Hills was

representative of the situation at any other fac ilities. The

fact that there were no similar incidents at any of the multitude

of other nursing homes and ALFs affected by Hurricane Irma

suggests tha t it was not.

41. The AgenciesÓ position that an emergency existed was

undermined by: (a) the fact that the Secretary of AHCA invited

facilities to consider applying for a variance almost immediately

after adoption of the Emergency Rules; and by (b) th e AgenciesÓ

adoption of the Emergency Variance Rules. Providing for

variances was directly contrary to the assertion that Floridians

were in immediate danger.

42. The AgenciesÓ justification for adopting the Emergency

Rules was further undermined by t he fact that there were only

15 days between November 15, 2017 (the date when the Emergency

Rules went into effect) , and November 30, 2017 (the last day of

the 2017 hurricane season). As a result, the Emergency Rules

were only to be in effect for the fina l two weeks of the 2017

hurricane season, and the requirements of the Emergency Rules

were not to be realized until well after the end of the 2017

hurricane season.

43. Furthermore, Hurricane Irma was a unique storm in that

it impacted the vast majority o f the State due to its sheer size

and the course it took directly northward through the Florida

peninsula.

44. While FloridaÓs emergency response personnel performed

admirably, they and the resources they utilized were severely

taxed due to the amount o f the State impacted by Hurricane Irma.

45. The evidence presented at the hearing indicated it was

meteorologically unlikely that another storm like Hurricane Irma

would strike Florida that late in the 2017 hurricane season.

46. While not cited in th e preamble as a justification

for the Emergency Rules, Molly McKinstry, AHCAÓs agency

representative, testified about how facilities needed to be more

self - sufficient during natural disasters such as Hurricane Irma.

In other words, facilities should be ab le to take care of their

residents on - site if disaster strikes and emergency response

personnel are unable to quickly restore public services.

47. None of the Petitioners argued that requiring nursing

homes and ALFs to be more self - sufficient was not a go od idea ,

nor did they argue that they had already achieved an adequate

amount of self - sufficiency.

48. Even if one were to conclude that a lack of self -

sufficiency for nursing homes and ALFs required prompt action,

the greater weight of the evidence dem onstrated that it was not

an ÐemergencyÑ that could be resolved by November 15, 2017.

49. As evident from the findings of fact above, the greater

weight of the evidence presented at the evidentiary hearing

demonstrated that it was impossible for the vast majority of

nursing homes and ALFs to achieve compliance with the Emergency

Rules by November 15, 2017.

CONCLUSIONS OF LAW

50. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. § 120.595(3), Fla. Stat.

51. Section 120.595(3), Florida Statutes, provides that :

[ I ]f the appellate court or administrative

law judge declares a rule or portion of a

rule invalid pursuant to s. 120.56 (3) or (5),

a judgment or order shall be rendered against

the agency for reasonable costs a nd

reasonable attorneyÓs fees, unless the agency

demonstrates that its actions were

substantially justified or special

circumstances exist which would make the

award unjust . An agencyÓs actions are

Ðsubstantially justifiedÑ if there was a

reasonable basis in law and fact at the time

the actions were taken by the agency. If the

agency prevails in the proceedings, the

appellate court or administrative law judge

shall award reasonable costs and reasonable

attorneyÓs fees against a party if the

appellate cour t or administrative law judge

determines that a party participated in the

proceedings for an improper purpose as

defined by paragraph (1)(e). No award of

attorneyÓs fees as provided by this

subsection shall exceed $50,000.

(emphasis added).

52. T he parties stipulated that each Petitioner incurred

reasonable attorneysÓ fees and costs exceeding $ 50,000.00 .

Therefore, the only issue to be resolved is whether the Agencies

can demonstrate that their adoption of the Emergency Rules was

substantially justified or that special circumstances exist which

would make an award of fees unjust . See Hely v. DepÓt of Bus. &

ProfÓl Reg. , 707 So. 2d 366, 368 (Fla. 1st DCA 1998); DepÓt of

HRS v. S . Beach Pharmacy, Inc. , 635 So. 2d 117, 121 (Fla. 1st DCA

1994); DepÓ t of ProfÓl Reg. v. Toledo Realty, Inc. , 549 So. 2d

715, 717 - 18 (Fla. 1st DCA 1989).

53. The AgenciesÓ primary argument against awarding fees to

Petitioners is that the First DCAÓs decision in Florida

Association of Homes and Services for the Aging, Inc . v. Agency

for Health Care Administration , 252 So. 3d 313 (Fla. 1st DCA

2018) , precludes any award of fees under section 120.595(3). In

that opinion, the Court held that Ðthe agencies have presented a

sufficient factual basis that an immediate danger to the public

health, safety, or welfare existed.Ñ Id. at 315.

54. However, the AgenciesÓ argument overlooks the fact that

the CourtÓs review was strictly limited to Ðwhether the four

corners of the emergency rules sufficiently identify

particularized facts showing an immediate danger to the public

welfare.Ñ Id. at 316. In other words, the CourtÓs review was

limited to whether the emergency rules, on their face,

demonstrated that an emergency existed.

55. In marked contrast, the proceedings during th e final

hearing were intended to give Petitioners an opportunity to

subject the AgenciesÓ position to the scrutiny afforded by an

evidentiary hearing. See Pinacoteca Corp. v. DepÓt of Bus. Reg. ,

580 So. 2d 881, 882 (Fla. 4th DCA 1991)(denying a petition f or

review, but noting the denial Ðdoes not, however, affect any

subsequent administrative proceedings under section 120.57(1),

Florida Statutes (1989), at which proceedings petitioner may

introduce evidence to contradict the findings in the emergency

order .Ñ); Field v. DepÓt of Health , 902 So. 2d 893 , 895 (Fla. 1st

DCA 2005)(noting that Ð[s]ection 120.60(6)(c) requires, in cases

of summary suspension, that the [d]epartment promptly institute a

formal suspension or revocation proceeding pursuant to

sections 120.569 and 120.57, Florida Statutes (1999).Ñ); Ampuero

v. DepÓt of ProfÓl Reg. , 410 So. 2d 213, 214 (Fla. 3d DCA

1982)(quashing an emergency order and stating Ð[w]hen the state

undertook to temporarily restrict the petitionerÓs privilege to

practice medicine it had an affirmative duty to grant a post -

suspension hearing and one that would be concluded without

appreciable delay.Ñ). 3/

56. Having established that the First DCAÓs decision in

Florida Association of Homes and Services for the Aging, Inc. ,

does not control the outcome of the instant case, the analysis

turns to whether the Agencies can satisfy the standard for

defeating a request for fees pursuant to section 120.595(3).

57. Section 120.595(3) provides that Ð[a ]n agencyÓs actions

are Òsubstant ially justifiedÓ if there was a reasonable basis in

law and fact at the time the actions were taken by the agency.Ñ

This standard has been described as Ðfall[ing] somewhere between

the no justiciable issue standard in Section 57.105 . . . and an

automatic award of fees to a prevailing party.Ñ Helmy , 707 So.

2d at 368. See also DepÓt of HRS v. S.G. , 613 So. 2d 1380, 1386

(Fla. 1st DCA 1993)(explaining that non - frivolous does not equate

to substantially justified).

58. Making nursing homes and ALFs mor e self - sufficient in

the aftermath of a natural disaster is a laudable goal and the

Agencies were substantially justified in taking action to make

that goal a reality. However, the Agencies did not consult with

the nursing home or ALF industries before ad opting the Emergency

Rules. The Agencies performed no independent evaluation as to

whether it was physically possible for nursing homes and ALFs to

satisfy the Emergency RulesÓ requirements by the November 15,

2017, deadline. During the final hearing, Pe titioners presented

credible and persuasive testimony demonstrating that it was

impossible for a facility to have a new generator installed

within the 60 - day timeline set forth in the Emergency Rules.

59. Because they sought to impos e requirements that could

not be satisfied in the time frame given, the Agencies had no

substantial justification for adopting the Emergency Rules.

60. The fact that the Agencies allowed nursing homes and

ALFs to seek variances from the Emergency Rules does not remedy

the lack of forethought that preceded the adoption of the

Emergency Rules. By providing for such variances, the Agencies

undermined their assertion that Florida was facing an emergency

that had to be addressed by November 15, 2017.

61. Despite the lack of substantial justification, the

Agencies can still avoid an award of fees and costs if special

circumstances exist which would make an award to Petitioners

unjust.

62. Section 120.595(3) does not define the term Ðspecial

circumstances.Ñ However, the Flo rida Equal Access to Justice Act

and the F ederal Equal Access to Justice Act provide for a special

circumstances defense, and cases construing the federal act

describe the defense as being based on equitable considerations .

See RHC & Assoc . , Inc. v. Hills borough Cnty . Sch . Bd. , Case

No. 02 - 3922F (Fla. DOAH Feb. 3, 2003) (describing how the special

circumstances defense is grounded in equitable considerations and

acts as a safety valve when unusual circumstances do not justify

awarding fees against the gove rnment ) .

63. The Agencies argue that equitable considerations

support denial of Petitioners Ó fee requests because the State of

Florida was facing an emergent situation and lives were at stake.

64. However , and as discussed above, the AgenciesÓ state d

justifications for finding that an emergency existed did not

stand up to scrutiny during the final hearing.

65. Indeed, the AgenciesÓ justification for adopting the

Emergency Rules was undermined by the fact that there were only

15 days between the dat e when the Emergency Rules went into

effect and the last day of the 2017 hurricane season.

66. In short, there are no special circumstances that would

make an award of fees and costs to Petitioners unjust.

ORDER

Based on the foregoing Findings of Fact a nd Conclusions of

Law, Petitioners are entitled to an award of attorneysÓ fees and

costs pursuant to section 120.595(3). In addition, the Agencies

have failed to demonstrate that their actions were substantially

justified or that any special circumstances exist which would

make an award of fees and costs unjust. Accordingly, it is

ORDERED that :

1. AHCA shall pay LeadingAge Florida $ 50,000.00 as

compensation for attorneysÓ fees incurred by LeadingAge Florida

in its challenge to Emergency Rule 59AER17 - 1 , and costs of

$8,951.8 5 , which represents half of all costs incurred by

LeadingAge Florida in its challenge to the Emergency Rules;

2. DOEA shall pay Petitioners a total of $50,000.00 as

compensation for attorneys Ó fee incurred by Petitioners in their

challenge to Emergency Rule 58AER17 - 1 . The aforementioned amount

shall be apportioned by agreement of Petitioners. LeadingAge

FloridaÓs portion shall not exceed $20,729.50 . If Petitioners

cannot reach an agreement on apportioning the fee award, then any

Petitioner can file a motion requesting that the undersigned

determine the amounts attributable to each Petitioner.

3 . DOEA shall pay LeadingAge Florida costs of $8,951.8 5 ,

which represents half of all costs incurred by LeadingAge in its

challenge to th e Emergency Rules;

4 . DOEA shall pay FALA $2,664 .00 for costs incurred by FALA

in its challenge to Emergency R ule 58AER17 - 1.

5 . DOEA shall pa y Florida Argentum $4,156.50 for costs

incurred by Florida Argentum in its challenge to Emergency Rule

58AER17 - 1.

DONE AND ORDERED this 21st day of December, 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of December, 2018 .

ENDNOTE S

1/ Unless stated otherwise, all statutory references will be to

the 2017 version of the Florida Statutes.

2/ Section 120.542(2 ) provides that Ð[v]ariances and waivers

shall be granted when the person subject to the rule demonstrates

that the purpose of the underlying statute will be or has been

achieved by othe r means by the person and when application of a

rule would create a substantial hardship or would violate

principles of fairness.Ñ

3/ Please refer to note 10 of the Final Order for an in - depth

description of the different scope of reviews applied by the

First DCA and DOAH to the Emergency Rules.

COPIES FURNISHED:

Seann M. Frazier, Esquire

Parker, Hudson, Rainer & Dobbs, LLP

Suite 750

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Marc Ito, Esquire

Parker Hudson Rainer & Dobbs, LLP

Suite 750

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Craig D. Miller, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Stefan Robert Grow, General Counsel

Agency for Health Care Admin istration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

William H. Roberts, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A .

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32302 - 0551

(eServed)

Stephen A. Ecenia, Esquire

Rutled ge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

(eServed)

John F. Loar, Esquire

Nelson Mullins Broad and Cassel

Suite 400

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Frank P. Rainer, Es quire

Nelson Mullins Broad and Cassel

Suite 400

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

M. Stephen Turner, Esquire

Nelson Mullins Broad and Cassel

Suite 400

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Amy W. S chrader, Esquire

Baker Donelson

Suite 925

101 North Monroe Street

Tallahassee, Florida 32301

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

Mail Stop 1

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Shena Grantham, Esq uire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

T h omas M. Hoeler, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 323 08

(eServed)

Jeffrey Bragg , Secretary

Department of Elder Affairs

Suite 315

4040 Esplanade Way

2727 Mahan Drive

Tallahassee, Florida 32399 - 7000

(eServed)

Francis Carbone, General Counsel

Department of Elder Affairs

Suite 315

4040 Esplanade Way

2727 Mahan Drive

Tallahassee, Flori da 32399 - 7000

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appe llate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.