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

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

Nos. 1D17-4024
1D17-4025
1D17-4102
(Consolidated for disposition)
_____________________________

FLORIDA ASSOCIATION OF HOMES
AND SERVICES FOR THE AGING,
INC. d/b/a LEADINGAGE FLORIDA,

Petitioner,

v.

AGENCY FOR HEALTH CARE
ADMINISTRATION, DEPARTMENT
OF ELDER AFFAIRS,

Respondents.
_____________________________

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

July 25, 2018

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

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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

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 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)

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 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.

_____________________________

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

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 in all nursing homes and assisted living
facilities in the state, is certainly a reasonable action if done in a
manner that is fundamentally fair. 1

The agency, however, implemented this generator policy
through emergency rules requiring compliance within 60 days. In
order to guarantee due process for parties effected by the rules,
there are very specific statutory requirements concerning the
contents of an emergency rule. See § 120.54(4), Fla. Stat. (2017).
The emergency rules in this case, however, did not sufficiently

1 For instance, see Rules 58A-5.036 and 59A-4.1265 of the
Florida Administrative Code, which were adopted through the
regular rulemaking process.

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demonstrate that the substantial expenditures required within a
short period of time were “necessitated by [an] immediate danger”
and that the adoption process “was fair under the circumstances,”
which are two of the required elements for a legitimate emergency
rule. See § 120.54(4)(a), Fla. Stat. In light of the short time period,
substantial expense, and logistical problems involved with
complying, these failures require reversal of the emergency rules.

In fact, these emergency rules were ultimately declared to be
invalid based on these deficiencies after a post-adoption
administrative hearing. Fla. Ass’n of Homes & Servs. for the Aging,
Inc., v. Agency for Health Care Admin., Case No. 17-005388RE
(DOAH Oct. 27, 2017). While this court did not have the benefit of
this order at the time of our original decision and it cannot be used
as precedent in this case, the findings of that order are instructive.
As will be explained later in this opinion, the order declaring the
emergency rules to be invalid demonstrates the reason for the
court’s obligation to carefully scrutinize emergency rules to
determine whether there has been a demonstration of fairness in
the adoption process.

FACTS

Both emergency rules contain specific requirements for the
installation and maintenance of generators. Rule 59AER17-1
pertains to nursing homes and requires:

(1) . . . .

(a) The acquisition of a sufficient generator or
sufficient generators to ensure that current licensees of
nursing homes will be equipped to ensure ambient
temperatures will be maintained at 80 degrees or less for
a period of a minimum of ninety-six (96) hours in the
event of the loss of electrical power.

(b) The acquisition and safe maintenance of
sufficient fuel to ensure that in an emergency situation
the generators can function to maintain ambient
temperatures at 80 degrees or less for a period of a
minimum of ninety-six (96) hours in the event of the loss
of electrical power.

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 (c) The acquisition of services necessary to install,
maintain, and test the equipment and its functions to
ensure the safe and sufficient operation of the generator
system installed in the nursing home.

(2) Each nursing home shall, within sixty (60) days
of the effective date of this rule, have implemented the
plan required under this rule.

....

(9) The Agency for Health Care Administration may
revoke the nursing home’s license for failure to comply
with this rule.

(10) In addition to other remedies provided by law,
violation of this rule shall result in a fine or sanction of $
1,000 per day.

....

Emergency Rule 59AER17-1, 43 Fla. Admin. Reg. 180 4004 (Sept.
18, 2017); see also Emergency Rule 58AER17-1, 43 Fla. Admin.
Reg. 180 at 4002 (Sept. 18, 2017) (imposing the same requirements
on assisted living facilities).

In sum, the rules required acquisition of a generator and
acquisition and retention of sufficient fuel to power the generator
for 96 hours within 60 days, which would have been November 15,
2017. Failure to comply may result in the revocation of a license or
a fine of $1,000 a day. See Emergency Rules 58AER17-1(9)-(10)
and 59AER17-1(9)-(10), 43 Fla. Admin. Reg. 180 at 4002-4004
(Sept. 18, 2017).

The agency’s statement explaining its reasons for concluding
the procedure it used was fair under the circumstances, which is
required by section 120.54(4)(a), stated:

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

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 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. Amin. Reg. 180 at 4002, 4004 (Sept. 18, 2017).

ANALYSIS

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 that is fair
under the circumstances, so long as:

1. The procedure provides at least the procedural
protection given by other statutes, the State
Constitution, or the United States Constitution;

2. The agency takes only that action necessary to
protect the public interest under the emergency
procedure; and

3. The agency publishes in writing at the time of, or
prior to, its action the specific facts and reasons for
finding an immediate danger to the public health, safety,
or welfare and its reasons for concluding that the
procedure used is fair under the circumstances.

§ 120.54(4)(a), Fla. Stat. (emphasis added).

In order to utilize emergency 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).

Here, the agencies failed to express the reasons
demonstrating that emergency rules were necessary or that the
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procedure was fair under the circumstances. Significantly, the
emergency rules in this case do not address the following:

(1) Number of facilities effected by the proposed
rules;

(2) The size or type of generators needed to
accommodate the requirements of the rules;

(3) The availability and costs of the generators in
question;

(4) The type of facilities necessary to accommodate
the amount of fuel required to be stored;

(5) The availability of space and materials to
accommodate the fuel storage facility;

(6) The local and state licenses and permits required
to install the generators and store the amount of fuel
involved;

(7) The need to obtain specialized professional
services to comply with the rules;

(8) Whether the agency conducted any hearings or
workshops or did any research to judge the feasibility of
compliance; 2

(9) The necessity for compliance within 60 days, a
period that is too short to file for any kind of
administrative hearing, especially in light of the
necessity for the facilities to immediately begin the

2 In fact, prior to adoption of the rule, the agencies did not
consult with the nursing home or assisted living facility industries
on whether compliance was economically or practically feasible.
See Fla. Ass’n of Homes & Servs. for the Aging, Inc., v. Agency for
Health Care Admin., Case No. 17-005388RE (DOAH Oct. 27,
2017).

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 purchase and installation of equipment as well as
beginning the required permitting requirements;

(10) Why compliance by November 15, 2017, was
necessary to prevent an ongoing immediate danger since
the rules would only be in effect for the last 15 days of
hurricane season, which ended on November 30.

Normally when agencies demonstrate on the face of
emergency orders that an immediate danger requires immediate
action, economic impact statements and feasibility evaluations are
not required. Under the unique circumstances of this case,
however, where the rule contains little or no justification for the
short time period allowed for compliance, the failure to address the
obvious complexity and cost of compliance, and the failure of the
order to contain any statement that the agency did anything to
assure that compliance was feasible, the mere conclusory
statement that the procedure was fair under the circumstances
was legally insufficient.

The majority correctly states that review of an emergency rule
is limited to the face of the emergency order. See Commercial
Consultants Corp. v. Dep’t of Bus. Regulation, Div. of Fla. Land
Sales & Condos., 363 So. 2d 1162, 1163-64 (Fla. 1st DCA 1978).
This requirement, however, is one placed on the agency writing the
regulation to demonstrate within the rule itself the necessity of
issuing an emergency rule without the due process protections of
the APA. It is not a check on our ability to review the agency’s
determination of fairness.

The majority also correctly states that we generally do not
concern ourselves with the substance of an emergency rule; rather,
our 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). Section 120.54(4)(a) requires the
agencies to set forth in writing their reasons for finding that an
emergency exists and that the procedure utilized to adopt the rule
was fair, and on review, we look only to those reasons to determine
the rule’s validity. Hood, 884 So. 2d at 1153.

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 The majority even acknowledges that the agencies must
strictly adhere to the requirements set forth in section 120.54
when adopting emergency rules because the emergency
rulemaking procedures do not afford parties full due process
protections or the protections of economic impact analyses. See
Krajenta v. Div. of Workers’ Comp., Dep’t of Labor & Emp’t Sec.,
376 So. 2d 1200, 1202 (Fla. 2d DCA 1979) (noting courts have
frequently struck down emergency rules that were not adopted in
strict compliance with the statute).

The four corners requirement is not to protect an agency from
judicial scrutiny. We, thus, have struck numerous emergency
orders for what they do not contain (deficiencies). See, e.g., Fla.
Health Care Ass’n., 734 So. 2d at 1054 (overturning an emergency
order that failed to state facts demonstrating consumers had been
misled, and in regard to fairness, failed to consider how the
emergency rule would effect “the facility’s business, from
marketing and standing in the community to staff morale and
attitudes toward caregiving”).

The rules in this case contain similar deficiencies. In
determining whether deficiencies exist, the four corners review
rule does not prohibit us from looking at existing statutes, rules,
and regulations, nor does it require us to ignore common sense or
common knowledge to determine whether the agency has met its
strict burden under the statute. For instance, it is common
knowledge that hurricane season ends on November 30; the
agencies did not justify why compliance by November 15 was
necessary to prevent an ongoing immediate danger, since the rules
would only be in effect for the last 15 days of hurricane season.
They also failed to address whether they considered the fact that
compliance would be costly and time consuming based on existing
statutes, rules, ordinances, and regulations regarding the
installation of generators and fuel tanks.

There was a reason the agencies did not address these factors;
they simply did not consider fairness to the regulated parties as
demonstrated by findings of fact 45-47 by the administrative law
judge who ultimately struck these rules. Fla. Ass’n of Homes &

11
Servs. for the Aging, Inc., v. Agency for Health Care Admin., Case
No. 17-005388RE (DOAH Oct. 27, 2017). 3

The agencies should have addressed these matters within the
emergency rules. If they had, the facilities may not have been
required to take costly steps to begin compliance, only to have the
rules struck down. It was our job to identify these deficiencies in
the rules.

I, therefore, would strike the emergency rules.

_____________________________

3 45. AHCA did not consult with the nursing home or ALF
industries before adopting Emergency Rule 59AER17-01. DOEA
did not consult with the ALF industry prior to adopting Emergency
Rule 58AER17-1.

46. Before adoption of Emergency Rule 59AER17-1, AHCA did
not investigate whether the requirements imposed by the
Emergency Rules were a workable solution that could address the
alleged emergency described in the preamble to the Emergency
Rules.

47. Before adoption of Emergency Rule 58AER17-1, DOEA did
not consider whether it was realistic to expect that ALFs could
comply with the Emergency Rules’ 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 timeframe for planning, permitting, procuring, and
installing 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 (3) 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.

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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.

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