STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION, AND DEPARTMENT OF ELDER AFFAIRS,

Respondents.

/ FLORIDA ASSISTED LIVING ASSOCIATION, INC., A FLORIDA NOT FOR PROFIT CORPORATION,

Petitioner,

vs.

FLORIDA DEPARTMENT OF ELDER AFFAIRS,

Respondent.

/ FLORIDA ARGENTUM,

Petitioner,

vs.

DEPARTMENT OF ELDER AFFAIRS,

Respondent.

/

Case No. 17-5388RE

Case No. 17-5409RE

Case No. 17-5445RE

FINAL ORDER ON FEES

This matter came before Administrative Law Judge Garnett W. Chisenhall of the Division of Administrative Hearings (“DOAH”). 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 justification or special circumstances to preclude Petitioners from receiving an award of attorneys’ 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 (“the Final Order”) holding that Florida Administrative Code Emergency Rules 58AER17-1 and 59AER17-1 (“the Emergency Rules”) were invalid exercises of delegated legislative authority as defined in section 120.52(8). The undersigned reserved jurisdiction to consider 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 “the Agencies”) were given 10 days to file 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 (“the First DCA” or “the Court”).

On November 3, 2017, the Agencies filed a “Joint Response and Motion for Abeyance of Petitioners’ Motions for Attorneys’ Fees” and requested that proceedings on Petitioners’ entitlement to an award of fees and costs be abated pending the outcome of multiple appeals before 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 their 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 Agencies’ appeal of the Final Order, and Petitioners subsequently renewed their earlier motions for attorneys’ fees.

On May 4, 2018, the Agencies filed a motion requesting that proceedings regarding attorneys’ fees be abated until the First DCA issued an opinion explaining the rationale behind an Order that denied challenges to the facial validity of the Emergency Rules. According to the Agencies, the First DCA’s decision would impact “the determination of whether [the Agencies’] actions were substantially justified and/or whether special circumstances

exist which would make an award of attorneys’ fees unjust as set forth in section 120.595(3), Florida Statutes.”

On May 17, 2018, the undersigned issued an Order concluding that the First DCA’s reasoning as to why the Emergency Rules were facially sufficient had no bearing on whether the Agencies’ 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 attorneys’ fees and costs unjust. If necessary, the reasonableness of the attorneys’ 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 availability 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 September 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, scheduling 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 attorneys’ fees in section 120.595(3). Because the Florida Association of Homes and Services for the Aging, Inc., d/b/a LeadingAge Florida (“LeadingAge Florida”), 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 $50,000.00 unless the Agency for Health Care Administration (“AHCA”) 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 Rule 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 (“DOEA”) could demonstrate that its actions were substantially justified or special 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 thereof, the parties stated that each Petitioner incurred reasonable costs and reasonable attorneys’ 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, granting 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 submissions, 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 membership includes 75 nursing homes and 79 assisted living facilities (“ALFs”). LeadingAge Florida’s services include the provision of legislative and regulatory advocacy on behalf of its members.

2. The Florida Assisted Living Association, Inc. (“FALA”), is a professional organization whose membership includes 592

   
   

   ALFs. FALA advocates on its members’ 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 nursing homes and ALFs. AHCA’s 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 charged with implementing the Assisted Living Facilities Act under Part I of chapter 429, Florida Statutes. 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 “[c]omfortable and safe room temperature levels in accordance with 42 CFR,

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

   
   

   The version of 42 C.F.R. § 483.15 cited by the rule mandates that “[f]acilities initially certified after October 1, 1990[,] must maintain a temperature range of 71-81 ºF.” No exceptions are mentioned.

   
   

8. Florida Administrative Code Rule 65G-2.007(8)(a) mandates that indoor temperatures at ALFs “shall be maintained within a range of 68 degrees to 80 degrees, as appropriate for the climate.” 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 process 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 Hurricane Irma’s 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 facilities 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. That 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 Hurricane Irma, eight residents at the Rehabilitation Center of Hollywood Hills, LLC (“Hollywood Hills”), a nursing home located in Hollywood Hills, Florida, died. Hollywood Hills’ air conditioning equipment had ceased to operate effectively, and the deceased residents 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 “immediate danger to the public health, safety or welfare,” the Emergency Rules stated the following:

    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 nursing homes. 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 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 Florida’s 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 possible 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 before 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 Rules 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 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 time frame 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 (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. James R. “Skip” Gregory, a former chief of AHCA’s 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 (“the FHCA”) 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 expertise 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, AHCA’s 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 process2/ if they could not comply with the Emergency Rules.

29. Despite the Agencies’ publication 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 nursing home or ALF’s physical space had to be air conditioned. One of the questions and answers 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 footage or other clear guidance was provided. Instead, the answer merely stated that enough space had to be provided to keep residents “comfortable.”

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 must 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 amounts 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 waiver and/or variance from the Emergency Rules’ requirements.

    The Existence of an “Emergency” 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 “an immediate danger to the public health, safety or welfare” to constitute an emergency.

35. One justification for the Emergency Rules was that, “According to the United States Census Bureau, Florida has the largest percentage of residents age 65 and older in the nation.” AHCA admitted during the evidentiary 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, “According to the Centers for Disease Control and Prevention, people age 65 years or older are more prone to heat-related health problems.” 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, “Thousands of frail seniors reside in assisted living facilities [and nursing homes] in Florida.” Again, AHCA admitted that thousands of frail seniors have 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 “an incompetent response” 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 Hill’s 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 facilities. The fact that there were no similar incidents at any of the multitude

    
    

    of other nursing homes and ALFs affected by Hurricane Irma suggests that it was not.

41. The Agencies’ 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) the Agencies’ adoption of the Emergency Variance Rules. Providing for variances was directly contrary to the assertion that Floridians were in immediate danger.

42. The Agencies’ justification for adopting the Emergency Rules was further undermined by the 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 final 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 of the State due to its sheer size and the course it took directly northward through the Florida peninsula.

    
    

44. While Florida’s emergency response personnel performed admirably, they and the resources they utilized were severely taxed due to the amount of 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 the preamble as a justification for the Emergency Rules, Molly McKinstry, AHCA’s 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 able 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 good 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 demonstrated that it was not an “emergency” 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 and reasonable attorney’s fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency’s actions are “substantially justified” 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 attorney’s fees against a party if the appellate court 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 attorney’s fees as provided by this subsection shall exceed $50,000.

    
    

    (emphasis added).

    
    

52. The parties stipulated that each Petitioner incurred reasonable attorneys’ 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. Dep’t of Bus. &

    
    

    Prof’l Reg., 707 So. 2d 366, 368 (Fla. 1st DCA 1998); Dep’t of HRS v. S. Beach Pharmacy, Inc., 635 So. 2d 117, 121 (Fla. 1st DCA

    1994); Dep’t of Prof’l Reg. v. Toledo Realty, Inc., 549 So. 2d 715, 717-18 (Fla. 1st DCA 1989).

53. The Agencies’ primary argument against awarding fees to Petitioners is that the First DCA’s 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 “the agencies have presented a sufficient factual basis that an immediate danger to the public health, safety, or welfare existed.” Id. at 315.

54. However, the Agencies’ argument overlooks the fact that the Court’s review was strictly limited to “whether the four corners of the emergency rules sufficiently identify particularized facts showing an immediate danger to the public welfare.” Id. at 316. In other words, the Court’s review was limited to whether the emergency rules, on their face, demonstrated that an emergency existed.

55. In marked contrast, the proceedings during the final hearing were intended to give Petitioners an opportunity to subject the Agencies’ position to the scrutiny afforded by an evidentiary hearing. See Pinacoteca Corp. v. Dep’t of Bus. Reg.,

    
    

    580 So. 2d 881, 882 (Fla. 4th DCA 1991)(denying a petition for review, but noting the denial “does 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.”); Field v. Dep’t of Health, 902 So. 2d 893, 895 (Fla. 1st DCA 2005)(noting that “[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).”); Ampuero

    
    

    v. Dep’t of Prof’l Reg., 410 So. 2d 213, 214 (Fla. 3d DCA 1982)(quashing an emergency order and stating “[w]hen the state undertook to temporarily restrict the petitioner’s privilege to practice medicine it had an affirmative duty to grant a post- suspension hearing and one that would be concluded without appreciable delay.”).3/

56. Having established that the First DCA’s 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 “[a]n agency’s actions are ‘substantially justified’ if there was a reasonable basis in law and fact at the time the actions were taken by the agency.”

    
    

    This standard has been described as “fall[ing] somewhere between the no justiciable issue standard in Section 57.105 . . . and an automatic award of fees to a prevailing party.” Helmy, 707 So.

    2d at 368. See also Dep’t 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 more 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 adopting 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 Rules’ requirements by the November 15, 2017, deadline. During the final hearing, Petitioners 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 impose 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 “special circumstances.” However, the Florida Equal Access to Justice Act and the Federal 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. Hillsborough 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 government).

63. The Agencies argue that equitable considerations support denial of Petitioners’ fee requests because the State of Florida was facing an emergent situation and lives were at stake.

64. However, and as discussed above, the Agencies’ stated justifications for finding that an emergency existed did not stand up to scrutiny during the final hearing.

    
    

65. Indeed, the Agencies’ justification for adopting the Emergency Rules was undermined by the fact that there were only

    15 days between the date 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 and Conclusions of Law, Petitioners are entitled to an award of attorneys’ 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 attorneys’ fees incurred by LeadingAge Florida in its challenge to Emergency Rule 59AER17-1, and costs of

   $8,951.85, 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’ fee incurred by Petitioners in their challenge to Emergency Rule 58AER17-1. The aforementioned amount shall be apportioned by agreement of Petitioners. LeadingAge Florida’s 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 $8,951.85, which represents half of all costs incurred by LeadingAge in its challenge to the Emergency Rules;

4. DOEA shall pay FALA $2,664.00 for costs incurred by FALA in its challenge to Emergency Rule 58AER17-1.

5. DOEA shall pay 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

Tallahassee, 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.

ENDNOTES

1/ Unless stated otherwise, all statutory references will be to the 2017 version of the Florida Statutes.

2/ Section 120.542(2) provides that “[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 other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness.”

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 Administration 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 Rutledge 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, Esquire 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. Schrader, 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, Esquire

Agency for Health Care Administration Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308 (eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308 (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, Florida 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 Appellate 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.

Docket for Case No: 17-005409RE

Orders for Case No: 17-005409RE