IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT. vs. AHCA NO PETITION FOR REVIEW OF EMERGENCY SUSPENSION ORDER

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1 REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC, IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT RECEIVED, 10/2/2017 2:31 PM, Jon S. Wheeler, First District Court of Appeal Petitioner, CASE NO. vs. AHCA NO STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. PETITION FOR REVIEW OF EMERGENCY SUSPENSION ORDER Geoffrey D. Smith Timothy B. Elliott Corinne T. Porcher Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, Florida Attorneys for Petitioner Rehabilitation Center at Hollywood Hills, LLC

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF CITATIONS ii GLOSSARY OF REFERENCES iv JURISDICTIONAL STATEMENT STATEMENT OF THE FACTS NATURE OF RELIEF SOUGHT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF CITATIONS Cases Bio-Med Plus, Inc. v. Department of Health, 915 So. 2d 669 (Fla. 1st DCA 2005) Broyles v. Department of Health, 776 So. 2d 340 (Fla. 1 st DCA 2001) Burton v. State of Florida, Department of Health, 116 So. 3d 1285 (Fla. 1 st DCA 2013) Cunningham v. AHCA, 677 So. 2d 61 (Fla. 1 st DCA 1996) Duabe v. Department of Health, 897 So. 2d 493, 495 (Fla. 1 st DCA 2005) Henson v. Department of Health, 922 So. 2d 376 (Fla. 1 st DCA 2006) Lawler, III v. State of Florida, Department of Health, 217 So. 3d 208 (Fla. 1 st DCA 2017) Robin Hood Group, Inc. v. Florida Office of Insurance Regulation, 885 So. 2d 393, 396 (Fla. 4 th DCA 2004) St. Michael s Academy, Inc. v. State, Department of Children and Families, 965 So. 2d 169 (Fla. 3rd DCA ,13 Webber v. State of Florida, Department of Business and Professional Regulation, 198 So. 3d 922 (Fla. 1 st DCA 2016) White Construction Co., Inc. v. State, Department of Transportation, 651 So. 2d 1302 (Fla. 1st DCA 1995) ,12 Witmer v. Department of Business and Professional Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994) ii

4 Florida Statutes Chapter 120, Florida Statutes , Fla. Stat (2)(n), Fla. Stat , Fla. Stat , , Fla. Stat (6), Fla. Stat (1), Fla. Stat (1)(b), Fla. Stat. (2016) (3)(a), Fla. Stat. (2016) (4), Fla. Stat. (2016) (1)(h), Florida Statutes (1), Florida Statutes (3), Florida Statutes Other Authorities Article V, 4(b)(1), of the Florida Constitution provides district courts of appeal Rule 9.100(c), Florida Rules of Appellate Procedure Rule 59AER17-1, Florida Administrative Code ,9 iii

5 GLOSSARY OF BRIEF REFERENCES AHCA App. Hollywood Hills Agency for Health Care Administration, State of Florida Appendix Rehabilitation Center at Hollywood Hills, LLC iv

6 PETITION FOR REVIEW OF EMERGENCY ADMINISTRATIVE ORDER Petitioner, Rehabilitation Center at Hollywood Hills, LLC ( Petitioner or Hollywood Hills ), pursuant to rule 9.190(b)(2), Florida Rules of Appellate Procedure, requests an immediate review of an Emergency Suspension Order (ESO) issued by the Agency for Health Care Administration (AHCA or the Agency ) on September 20, 2017, which suspends indefinitely the Petitioner s license to operate a nursing home. While this ESO contains additional facts relating to patients medical records, the ESO lacks the requisite facts necessary to establish that an emergency condition currently exists at Petitioner s facility and fails to establish reasonable limitations to the suspension of all operations. I. BASIS FOR INVOKING JURISDICTION Article V, section 4(b)(1), of the Florida Constitution provides district courts of appeal with jurisdiction to issue writs of certiorari. Additionally, section (1), Florida Statutes, provides that a preliminary, procedural or intermediate order of the agency is immediately reviewable by district courts if review of the final agency decision would not provide an adequate remedy. The ESO of Petitioner s license to operate a nursing home is immediate and provides no other adequate remedy to the Petitioner unless and until the Agency files an administrative action against the Petitioner for the alleged wrongdoing underlying 1

7 the emergency order. Petitioner is currently suffering irreparable harm as a result of this ESO as the order prevents Petitioner from any and all operations as a nursing home. As such, the District Court has jurisdiction to review this order. This Petition is timely filed pursuant to Rule 9.100(c), Florida Rules of Appellate Procedure. II. BACKGROUND This is the second emergency order that AHCA has issued against Petitioner s license due to events arising from the catastrophic damage wrought by Hurricane Irma on the State of Florida and its residents. Approximately Six Million Florida residents were left without electrical power for days beginning on September 10, 2017, including Hollywood Hills, which lost power to its Air Conditioning system (AC power) when a transformer owned and maintained by Florida Power and Light (FPL) was knocked out of service. Although the AC power was lost, the facility otherwise maintained its electric power and placed spot cooling units and fans were throughout the facility in order to alleviate the discomfort until power to the AC was restored. Tragically, before power was restored on September 13, several nursing home residents suffered cardiac distress and died. AHCA s first emergency order was styled as an Immediate Moratorium on Admissions, issued at 6:51 p.m., September 13, 2017, after all residents of the 2

8 nursing home had been previously evacuated and power to the facility s AC unit was restored. On September 14, 2017, AHCA issued an Immediate Suspension Final Order suspending Hollywood Hills from further participation in the state Medicaid program. Appellant filed a Notice of Appeal of a Final Administrative Order on September 19, On September 20, 2013, AHCA issued the Emergency Suspension Order, which is the subject of this petition for review before the Court. During all times since the first emergency order was issued by AHCA on September 13, 2017, the Petitioner s facility has zero (0) residents and the AC unit remains fully operational. (App. 1, 3.) III. STATEMENT OF THE FACTS Petitioner is the licensee of a 152-bed, licensed nursing home located in Broward County at 1200 North 35 th Avenue, Hollywood, Florida (App. 2.) The Respondent is the Agency for Health Care Administration (AHCA), the state licensing authority that oversees the regulation of nursing homes. (App. 2.) The current census of the nursing home is zero (0) residents. (App. 3) The ESO provides a listing of facts justifying the Agency s entry of the order. (App. 3.) As stated in the ESO, the Petitioner first became aware that the facility s air conditioner stopped working due to an electrical power outage on September 10, 3

9 2017. (App. 4.) Petitioner immediately contacted Florida Power and Light (FPL) for emergency help. (App. 4.) 1 While awaiting the arrival of Florida Power and Light, staff for Petitioner situated eight (8) large portable cooling units and fans throughout the facility to provide relief to its residents. (App. 4.) On September 13, 2017, while still awaiting power restoration to the facility s AC unit and monitoring its residents, several residents exhibited symptoms of respiratory or cardiac distress and were transported from the facility via emergency transportation. (App. 4.) The facility promptly called 911 to report each medical emergency as it occurred and requested assistance from local EMS/Fire Rescue for those patients in distress. (App. 4.) Tragically, eight of the nursing home residents died during aftermath of the storm and/or subsequent to their transfer to Memorial Hospital in Broward County. (App. 4.) Eventually, EMS officials assisted Hollywood Hills in the evacuation of all residents from the nursing home. (App. 4.) A summary provided in the order states that Petitioner failed to maintain 1 In fact, Hollywood Hills, through its staff, made repeated calls to FPL s emergency service line, the Florida Emergency Operations Center, the Agency for Health Care Administration and Governor Scott s personal cell phone number that had been distributed to nursing home operators, including Petitioner, for emergency use during the storm. In response to the multiple calls, Hollywood Hills was advised repeatedly that the problem had been escalated as a priority response item by FPL, and that power would be restored promptly. 4

10 safe conditions in its Facility, and faults the facility for failure to timely evacuate its facility and contact 911. (App. 1.) It also states that, even though the Florida Emergency Operations Center was actively staffed to assist with critical incidents, Hollywood Hills never specifically requested an evacuation. (App. 4.) However, AHCA s order devoid of any specific statutory section, administrative rule, standard or emergency policy that Hollywood Hills either intentionally or negligently violated to warrant an emergency license suspension. Instead, AHCA cites to section (1)(h), Florida Statutes, for the general requirement that [e]very licensed facility shall comply with all applicable standards and rules of the agency and shall Maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner. (App. 3.) It also cites to section (1), Florida Statutes, which authorizes the Agency to act against a license in the event of an intentional or negligent act material affecting the health or safety of the licensee s residents. (App. 3.) Unlike the September 13, 2017, emergency order, the September 20 th ESO includes a summary review of certain medical records for each of the eight residents from the nursing home that died, which included body temperatures taken at various times while resident was at the facility and after the resident was transported from the facility to a hospital emergency department. (App ) 5

11 AHCA includes details of significantly elevated body temperatures for each of the residents that were charted sometime after their arrival to the hospital emergency department. (App ) The Agency also notes that there were discrepancies between some of the nursing notes charted in resident records by facility staff, characterized in the ESO as late entries, and medical records obtained by the hospital. (App ) Some of the nursing notes were characterized as late entries. (App. 5, 7, 9.) As stated in the ESO, it is uncontroverted that eight of Hollywood Hills residents ultimately expired before, or subsequent to, emergency transport from the facility during the power outage. (App ) It is also uncontroverted that this was a tragic occurrence during a Governor-declared State of Emergency with unprecedented impacts to the residents of Florida. While this is an emotional case, it is important to recognize that AHCA s ESO completely fails to state specific, particularized facts supporting that an emergency condition at the facility existed at the time the order was entered, failed to state any cause of death or causal connection between the deaths and any deficiency in the operation of the nursing home, failed to cite to any rule or regulation that the facility negligently or intentionally violated, failed to state any deficiencies in the facility s hurricane preparedness policies, and failed to name any individual that would be harmed absent the issuance of the emergency order. 6

12 IV. NATURE OF RELIEF SOUGHT The nature of the relief sought by this Petition is an order quashing the Agency s Emergency Suspension Order on the grounds that the order does not meet the essential requirements of law for entry of an emergency order by a state agency. V. ARGUMENT Although this case deals with tragic and emotional events resulting from a destructive storm, it s important for the Court to uphold the strict legal standards for the issuance of an emergency order imposed by an administrative agency that has the effect of stripping Hollywood Hills rights to a fair hearing on the merits. Simply, the ESO should be quashed because it fails to meet the essential requirements of law. The order lacks the required specificity and particularity as to any improper conduct or wrongdoing on the part of the facility and fails to cite to any violation of the controlling statutes or administrative rules which was intentionally or negligently carried out. The Order fails to state any continuing emergency and actually recites that the facility lost power to its AC unit and contact FPL (as well as governmental sources, although not stated in the order) for emergency help. The order also acknowledges that all residents were eventually evacuated from the facility and, as such, admits that there is not one identifiable person that would be protected by the ESO. The Agency points to future, unidentified residents who might be harmed by unspecified, future conduct or 7

13 conditions at the facility, which are speculative and insufficient grounds for an emergency order. It is important to note that, at the time the Agency issued the ESO on September 20, 2017, the Hurricane had completely passed through Florida, and power to the facility s AC unit was fully restored. Additionally, AHCA issued an emergency rule on September 16, 2017, requiring the installation of generators to power AC units in nursing homes within 60 days of the rule s issuance. Rule 59AER17-1, Florida Administrative Code. Because the dangerous and emergent conditions were no longer present, the order lacks the required immediacy to demonstrate that only the emergency order can protect the public interest until normal due process is afforded through administrative proceedings pursuant to Chapter 120, Florida Statutes. Finally, the emergency order is not narrowly tailored to offer the least restrictive remedy to stop the alleged harm. For example, the order should be limited to state that no further admissions will be allowed unless the facility demonstrates that AC power has been restored to the facility and that there is availability of backup 8

14 generator power for the AC unit in the event of another natural disaster. 2 Instead, AHCA s order relies upon innuendo, implied speculation and conjecture to conclude that the tragic deaths of eight residents of the nursing home must have been caused by some unstated, improper action or inaction by the facility. Issuance of emergency final orders by state agencies is generally governed by section (2)(n), Florida Statutes, which provides: (Emphasis added.) If an agency head finds that an immediate danger to the public health, safety, or welfare requires an immediate final order, it shall recite with particularity the facts underlying such finding in the final order, which shall be appealable or enjoinable from the date rendered. Additionally, as to actions taken in relation to a state licensee, including health facility licenses such as Hollywood Hills license, section , Florida Statutes, provides: (6) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances if: 2 There was no rule, regulation or policy promulgated by AHCA prior to Hurricane Irma requiring a back-up generator at nursing homes. However, an emergency rule was issued on September 16, 2017, after the storm and events recounted in the emergency order, which now requires installation of generators to power AC units in nursing homes within 60 days of the rule s issuance. Rule 59AER17-1, Florida Administrative Code. 9

15 (Emphasis added.) (a) The procedure provides at least the same procedural protection as is given by other statutes, the State Constitution, or the United States Constitution; (b) The agency takes only that action necessary to protect the public interest under the emergency procedure; and (c) The agency states 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. The agency s findings of immediate danger, necessity, and procedural fairness are judicially reviewable. Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss and shall also be promptly instituted and acted upon. The applicable standard of review for immediate emergency orders is whether, on its face, the order sufficiently states particularized facts showing an immediate danger to the public welfare. Robin Hood Group, Inc. v. Florida Office of Insurance Regulation, 885 So. 2d 393, 396 (Fla. 4 th DCA 2004). See also Broyles v. Department of Health, 776 So. 2d 340 (Fla. 1 st DCA 2001). Florida courts have kept agencies from abusing the imposition of emergency moratoriums where immediacy of public harm is lacking. See, e.g., Henson v. Department of Health, 922 So. 2d 376 (Fla. 1 st DCA 2006) (department s emergency order suspending doctor s license to practice osteopathic medicine quashed as 10

16 broader than necessary to protect the public and order could have been narrowly tailored to prevent narcotics prescriptions until administrative proceeding had been completed); Cunningham v. AHCA, 677 So. 2d 61 (Fla. 1 st DCA 1996) (emergency suspension of psychiatrist s license was too broad in that it could be more narrowly tailored to the specific treatment of prescribing narcotics and treating only the three patients allegedly harmed by doctor s actions); Duabe v. Department of Health, 897 So. 2d 493, 495 (Fla. 1 st DCA 2005) (emergency order to suspend petitioner s license before administrative complaint was issued was unnecessary where petitioner stopped using the unapproved product on patients and destroyed his remaining supply before the emergency order was issued). In this case, AHCA s ESO provides a very general statement that the facility failed to maintain safe conditions for the resident (power outage during hurricane), failed to timely evacuate (during the hurricane), failed to properly monitor its patients and failed to timely report an ongoing medical emergency by contacting 911. Although Hollywood Hills can refute the allegations during a administrative hearing on the merits, the ESO lacks a showing of immediate serious danger to the public health, safety, or welfare requiring emergency suspension, restriction, or limitation of Petitioner s license. In fact, the Agency s order acknowledges the power was lost to the facility s AC unit and that emergency personnel were called to the facility to assist medical emergencies during the power 11

17 outage. The Agency s order also acknowledges that the Petitioner, with the help of EMS, ultimately evacuated the entire facility until the power could be restored. Thus, the order lacks any specific facts to show that an emergency continued to exist at the facility when the ESO was issued. Case law requires that facts stated in AHCA s emergency order be more than a general, conclusory prediction of harm. White Construction Co., Inc. v. State, Department of Transportation, 651 So. 2d 1302 (Fla. 1st DCA 1995); Lawler, III v. State of Florida, Department of Health, 217 So. 3d 208 (Fla. 1 st DCA 2017); Webber v. State of Florida, Department of Business and Professional Regulation, 198 So. 3d 922 (Fla. 1 st DCA 2016). The existence of a genuine emergency must be made within the four corners of the Agency s order. White, supra. Furthermore, even a showing of a licensee s propensity to commit future violations (not present here) is not enough. Witmer v. Department of Business and Professional Regulation, 631 So. 2d 338 (Fla. 4th DCA 1994). There must be sufficient specific and particularized facts stated that demonstrate an immediate ongoing danger to the public. Id. at 341. Rather, AHCA s order essentially implies that the reason for immediate harm is that the Petitioner and its staff are bad people who have a propensity to provide substandard care. This does not satisfy the requirements for an emergency order. In St. Michael s Academy, Inc. v. State, Department of Children and Families, 965 So. 2d 169 (Fla. 3rd DCA 2007), the court rejected the necessity of a moratorium 12

18 issued by the Department of Children and Families because the facts alleged in the emergency order did not establish an immediate serious danger to the public health, safety or welfare. Id. at 170. The department alleged four separate incidents to support its moratorium: first, a child walked away from the facility, into a street, unsupervised; second, the facility did not have adequate personnel records; third, a child was bitten and injured by another child; and fourth, the facility failed to have a credentialed director on site. Id. at 171. In its analysis, the court ruled that the moratorium must present facts that the complained of conduct was likely to continue, the order was necessary to stop the emergency, and the order was sufficiently narrowly tailored to be fair. Id. at 172, citing Bio-Med Plus, Inc. v. Department of Health, 915 So. 2d 669 (Fla. 1st DCA 2005). The court concluded that the facts alleged by the department did not identify particularized facts demonstrating an immediate danger and are merely speculative as to general future harm to the children at St. Michael s. Id. at The emergency order in this case lacks any specificity or particularity as to the alleged emergency condition purportedly being addressed by its issuance. Notably, the administrative order does not provide: a. any specific rule, regulation or policy with regard to hurricane preparedness, hurricane or disaster planning, or evacuation protocols that were violated by the Petitioner; 13

19 b. whether Petitioner had in place, and strictly followed, a hurricane preparedness and comprehensive emergency management plan that was reviewed and approved by AHCA and Department of Health, County Emergency Management officials; c. whether Petitioner took timely and appropriate actions to notify all appropriate agencies of the loss of power to the AC unit at the facility; d. whether there was any evidence of excessive heat or high temperature in the Petitioner s facility at any time; e. whether the medical conditions of any resident that suffered cardiac or respiratory conditions had any causal relationship or nexus to temperature in the facility; f. whether any resident deaths that occurred would have occurred even in the absence of any hurricane or loss of power such as terminally ill hospice patients or patients who had signed authorization for a Do Not Resuscitate order due to the patient s existing medical conditions and the desire that the patient not be resuscitated in the event of cardiac or respiratory distress; g. whether any resident deaths may have resulted from transfer trauma which is a well-documented and recognized medical condition for elderly patients who are abruptly transferred to a new medical facility; h. whether the actions of EMS or the hospital caused or contributed to the death of any of the residents who ultimately expired ; i. whether residents identified in the emergency order as having ultimately expired were located at Hollywood Hills or at another facility at the time that they suffered distress and expired; j. whether any actions or inactions on the part of Petitioner caused or contributed in any way to the death of the residents at issue; k. whether it was reasonably foreseeable that any act or failure to act by Petitioner would cause the deaths at issue; 14

20 l. whether power for air conditioning had already been restored at the Petitioner s facility at the time the emergency order was entered; m. the existence of any continuing emergency conditions at the Petitioner s facility at the time the emergency order was entered. There is no indication from the order that an emergency would continue to exist once the hurricane passed and power was restored to the facility s AC unit. There is no indication from the order that the facility tried to readmit patients before the power was restored to the AC unit. There is no indication that the facility did not do everything in its power to alleviate and protect the residents during the power outage, including setting up cooling units and fans throughout the affected parts of the facility and calling various sources for emergency help, including 911 each time a patient was observed to be in distress. There is no rule or statute cited by AHCA that was intentionally or negligently violated by Petitioner. Additionally, The ESO fails to identify any officer, director, employee, or contractor of the nursing home who is alleged to have engaged in some specific deficient care for a resident or some other specific conduct that is contrary to properly promulgated statutes, rules or regulations. Nursing homes are operated by a team of licensed health care professional such as: Physicians and Physician Assistants (see Chapter 458, Florida Statutes, and Chapter 64B8, Florida Administrative Code); Registered Nurses, Licensed Practical Nurses, and Certified Nursing Assistants (Chapter 464, Florida Statutes, and Chapter 64B9, Florida 15

21 Administrative Code); and licensed Nursing Home Administrators (Chapter 468, Florida Statutes). All of these regulated professionals are subject to rules and regulations governing their respective duties and roles in operation of the facility and care for residents. Yet, AHCA fails to identify a single individual or single specific alleged act of deficient conduct. Instead, AHCA recites temperature readings of some residents taken at points in time after the residents were evacuated from the facility, and offers a conclusory allegation that the facility and its professional staff failed to properly monitor residents. The assumption baked into this conclusion is that the facility, and all of its administrators and clinical care team are so deficient in abilities that they cannot be trusted with providing care to nursing home residents. The emergency powers granted to AHCA are not boundless. The Agency is required to state with particularity and specificity what conduct was deficient, who engaged in such conduct, and what are the narrowly tailored actions needed to ensure protection of the public, while normal due process protections are afforded to the licensed facilities (or its caregivers) before punitive sanctions such as unconditional suspension of a license is imposed. In fact, the ESO provides some of the remedial steps the Petitioner took to address the power loss to the AC unit and acknowledges the facility eventually evacuated all residents until there was a census of zero (0) residents. As such, the 16

22 moratorium does not (and cannot) identify a single individual who is at risk of suffering immediate harm at the facility or even whether any dangerous or unsafe conditions exist at the facility. It would be speculative, at best, to suggest that there would be harm to potential, future residents. The emergency order also appears to be premised upon the implied notion or innuendo that an immediate threat to public safety and welfare exists because Petitioner has an inadequate hurricane preparedness plan and did not require immediate evacuation of patients to a nearby hospital upon the loss of electrical power for the AC unit or timely request a facility-wide evacuation by EMS. Both of these innuendos are insufficient to support entry of an emergency order. Medical record summaries provided in the ESO indicate that nursing home staff members called 911 for emergency transport of residents when individual symptoms warranted the emergency call. This is routine protocol for nursing homes in Florida. There was no indication based on actual conditions at the time of the power outage which caused the belief that a global emergency was occurring. The facility staff and administrators are heartbroken over the loss of its residents during the storm and its aftermath, but this does not mean that the facility poses an immediate, serious danger to the public health, safety or welfare requiring emergency suspension. 17

23 Finally, even if the ESO articulated the necessary facts showing an immediate risk of harm, the order should be quashed for not being narrowly-tailored to provide the least restrictive option available to address the Agency s concerns. See, e.g., Burton v. State of Florida, Department of Health, 116 So. 3d 1285 (Fla. 1 st DCA 2013). If, for example, AHCA believes it was the lack of power to the facility s AC unit that posed a danger to future admittees of the facility, then the Agency could have ordered the Petitioner to demonstrate that its AC unit is operational before residents could be admitted or readmitted. Alternatively, AHCA could have limited the duration of the moratorium until such time that the Petitioner s AC unit was operational. Another option would be to order the facility to obtain a back-up generator and supplies within a stated period (as now required by a new emergency rule issued by AHCA on September 16, 2017). Additionally, to address the failure to evacuate allegation, AHCA could require the facility to amend its approved emergency preparedness plan to state that all residents are to be immediately evacuated upon a loss of electrical power. Likewise, AHCA could require that additional patient monitoring protocols be adopted in the event of a hurricane to the area. Instead, the ESO contains no parameters or limitations to the emergency action other than a full shut-down of the facility. In doing so, the order offers no due 18

24 process rights, or opportunity for the Petitioner to remedy any alleged violation or wrongdoing, until an administrative hearing is held on the merits. The harm imposed on the Petitioner by virtue of the Agency s issuance of the ESO is ongoing and cannot be remedied by a future administrative hearing. Despite restoration of power to the Petitioner s AC unit, Hollywood Hills currently sits empty despite being fully staffed and operational. Except for a review of the emergency order for legal sufficiency, it will take months for the Petitioner to obtain an administrative hearing on the merits of the Agency s actions. Hollywood Hills will have to wait for an Administrative Complaint to be issued by the Agency, before it can get a formal hearing at the Division of Administrative Hearings (DOAH) on the merits. Thereafter, the facility will have to await entry of a Recommended Order at DOAH and a Final Order by AHCA. Quite simply, the facility will not be able to remain non-operational until the conclusion of the administrative process on the merits. Additional harm to Hollywood Hills as a result of the ESO is the Agency s use the ESO as grounds to impose future penalties against Petitioner s license regardless of the outcome of the administrative hearing. Section (3)(a), Fla. Stat. (2016), provides that AHCA may revoke or deny a nursing home license if the licensee operates a facility that has had two moratoria issued within any 30-month period. Section (4), Fla. Stat. (2016), provides that AHCA may suspend the 19

25 license of any nursing home that has been placed on a moratorium within two times within a seven-year period. The ESO at bar is the second emergency order issued by AHCA against the Petitioner for the same alleged violations. (An Immediate Moratorium on Admissions was issued on September 13, 2017.) AHCA can also use the ESO to attack other health care facility licenses held by the same controlling interest of Hollywood Hills pursuant to sections (1)(b) and (3), Florida Statutes. In fact, AHCA has already issued a Notice of Intent (NOI) to Deny the license renewal of an Assisted Living Facility that shares a common controlling interest with Hollywood Hills since the issuance of its emergency order. VI. CONCLUSION For all of the above reasons, the Agency s ESO issued against Petitioner Hollywood Hills on September 20, 2017, is facially insufficient and fails to meet the requirements established by section (6), Florida Statutes (2016). WHEREFORE, Petitioner, Rehabilitation Center at Hollywood Hills, LLC, respectfully requests this Honorable Court to enter a judgment quashing the Emergency Suspension Order filed by the Agency for Health Care Administration. Respectfully submitted this 2 nd day of October, Respectfully submitted, 20

26 /S/ GEOFFREY D. SMITH GEOFFREY D. SMITH Florida Bar No TIMOTHY B. ELLIOTT Florida Bar No CORINNE T. PORCHER Florida Bar No SMITH & ASSOCIATES 3301 Thomasville Rd., Ste. 201 Tallahassee, Florida Attorneys for Petitioner, Rehabilitation Center at Hollywood Hills, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing has been electronically filed with the Clerk, District Court of Appeal of Florida, First District, this 2 nd day of October I further certify that copies of the foregoing have been furnished by to the following on this 2 nd day of October Stephen A. Ecenia, Esq. J. Stephen Menton, Esq. Gabriel F. V. Warren, Esq. Rutledge Ecenia 119 S. Monroe St., Ste. 202 Tallahassee, FL steve@rutledge-ecenia.com smenton@rutledge-ecenia.com gwarren@rutledge-ecenia.com 21

27 Counsel for State of Florida, Agency for Health Care Administration Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Building #3, MS # 3 Tallahassee, FL Justin.Senior@ahca.myflorida.com Tracy Lee Cooper George, Esq. Chief Appellate Counsel 2727 Mahan Drive, Tallahassee, FL Tracy.George@ahca.myflorida.com Counsel for State of Florida, Agency for Health Care Administration Leslei Street, Esq., Chief Litigation Counsel Andrew T. Sheeran, Esq., Assistant General Counsel 2727 Mahan Drive, Tallahassee, FL Leslei.Street@ahca.myflorida.com Andrew.Sheeran@ahca.myflorida.com Counsel for State of Florida, Agency for Health Care Administration /S/ GEOFFREY D. SMITH GEOFFREY D. SMITH CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the type size and style requirements and has been prepared in Times New Roman, 14 Point Font. S:\ Appeal of ESO\Pleadings\Draft\Petition for Review on ESO # (003).docx /S/ GEOFFREY D. SMITH GEOFFREY D. SMITH 22