Rehabilitation Center at Hollywood Hills, LLC v. State of Florida, Agency for Health etc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Nos. 1D17-3858
1D17-3883
1D17-4092
_____________________________
REHABILITATION CENTER AT
HOLLYWOOD HILLS, LLC,
Appellant/Petitioner,
v.
STATE OF FLORIDA, AGENCY FOR
HEALTH CARE ADMINISTRATION,
Appellee/Respondent.
_____________________________
On appeal from the Agency for Health Care Administration.
Justin M. Senior, Secretary.
Petition for Review of Emergency Administrative Order—
Original Jurisdiction.
Petition for Review of Emergency Suspension Order—Original
Jurisdiction.
June 20, 2018
WOLF, J.
Rehabilitation Center at Hollywood Hills, LLC (the facility)
challenges 3 emergency orders entered by the Agency for Health
Care Administration (AHCA) after 8 of the facility’s residents
died during the aftermath of Hurricane Irma when the facility
lost power to its air conditioner.
In case 1D17-3883, AHCA issued an Immediate Moratorium
on Admissions, prohibiting the already-evacuated facility from
admitting new residents. In 1D17-3858, AHCA issued an
Immediate Suspension Final Order (ISFO), which suspended the
facility’s participation in the Medicaid program. In 1D17-4092,
AHCA issued an Emergency Suspension Order, which suspended
the facility’s license to operate as a nursing home.
The facility filed petitions for writ of certiorari challenging
the Immediate Moratorium on Admissions and the Emergency
Suspension Order, which were non-final orders, and a notice of
appeal challenging the ISFO, which was a final order. These
cases are consolidated for purposes of this opinion.
The facility asserts that all three orders fail to provide
sufficient specific factual allegations justifying emergency action.
In addition, it asserts that AHCA failed to provide an
administrative hearing following the ISFO.
We determine the challenge to the Immediate Moratorium
on Admissions in case 1D17-3883 is moot in light of the
subsequent Emergency Suspension Order in case 1D17-4092,
which suspended the facility’s license to operate a nursing home.
We find that the orders in cases 1D17-3858 and 1D17-4092
contain sufficient factual allegations to support their imposition.
As to the failure to provide an administrative hearing after
the ISFO, we affirm because the record does not demonstrate the
facility requested a hearing, and the facility failed to raise an
issue concerning the order’s failure to apprise the facility of a
point of entry into the administrative proceeding until the reply
brief. Therefore, the issue is not properly before this court on
appeal.
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I. FACTS
Immediate Moratorium on Admissions, 1D17-3883
On September 13, 2017, AHCA issued the Immediate
Moratorium on Admissions, which prohibited the facility from
“admit[ting] for services any individual.” The order made the
following factual findings:
a. On September 10, 2017, [the facility] became aware
that its air conditioning equipment had ceased to
operate effectively.
b. In addition to contacting the local electrical power
provider, [the facility] situated eight (8) portable air
coolers throughout the facility and equipped the halls
with fans.
c. Between 1:30 AM and 5:00 AM on September 13,
2017, several residents suffered respiratory or cardiac
distress. Eight (8) of those residents ultimately expired.
d. Emergency personnel and law enforcement
responding to these multiple emergency medical events
directed [the facility], as a result of the heat in the
building, to evacuate the second floor of the Facility.
e. [The facility] ultimately evacuated the entire
building.
Based on these facts, AHCA concluded that a moratorium
was necessary because the “practices and conditions at the
[facility]” presented an “immediate serious danger” or “threat” to
the residents. It found the “[facility’s] deficient conduct is
widespread and places all future residents at immediate threat to
their health, safety, and welfare. The [facility] has demonstrated
that its physical plant cannot currently provide an environment
where residents can be provided care and services in a safe and
sanitary manner.” AHCA asserted the moratorium was necessary
because the facility’s “deficient practice exist [sic] presently; have
existed in the past, and more likely that not will continue to
exist” without intervention. AHCA reasoned the residents needed
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protection from the “unsafe conditions and deficient practices” at
the facility because it was “ill-equipped to provide for resident
health, safety, and welfare,” and “the statutory and regulatory
mechanisms enacted for their protection have been breached.”
AHCA concluded this remedy was the least restrictive action the
agency could have taken and was narrowly tailored.
As supporting authority, AHCA cited sections 120.60 and
408.814, which permit it to take emergency action when it finds
an immediate threat to public safety, health, safety, or welfare.
§§ 120.60(6), 408.814(1), Fla. Stat. (2017). It also cited section
400.141, Florida Statutes, which requires nursing homes to
maintain their facilities in a safe manner, and section 400.102,
which permits the agency to act where nursing home staff
commits an intentional or negligent act that materially affects
the health and safety of residents. §§ 400.141(1)(h), 400.102(1),
Fla. Stat. (2017).
Immediate Suspension Final Order, 1D17-3858
On September 14, 2017, AHCA issued an ISFO suspending
the facility from participating in the Medicaid program. The
order incorporated by reference the factual findings from the
Immediate Moratorium on Admissions and added the following
findings:
3. Between 1:30 a.m. and 5:00 a.m., on September 13,
2017, several residents suffered respiratory or cardiac
distress. Eight (8) of those residents ultimately expired.
4. Shortly after 4:00 a.m. on September 13, 2017, the
City of Hollywood Police Department and Hollywood
Fire Rescue responded to a call for service at the []
facility. Several patients were found in varying degrees
of medical distress, three patients were found deceased,
and others were in need of immediate transport.
5. Due to the conditions of the facility, Hollywood Police
Department and Hollywood Fire Rescue mobilized nine
(9) rescue units to evacuate all of the remaining
patients.
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6. . . . The facility is located directly across the street
from a hospital . . . .
7. The hospital . . . was operational and able to receive
patients.
....
11. The matter remains under active criminal
investigation.
The order reiterated the conclusion from the moratorium
that the “practices and conditions” at the facility presented an
immediate serious danger to the residents.
As authority, the order cited section 409.913, Florida
Statutes, and Florida Rule of Administrative Procedure 59G-
9.070, which permit AHCA to suspend Medicaid participation
upon information of patient abuse or neglect, and section
120.569(2)(n), which permits agencies to enter immediate final
orders if an immediate danger to public health, safety, or welfare
so requires.
Emergency Suspension Order, 1D17-4092
On September 20, 2017, AHCA entered an Emergency
Suspension Order, suspending the facility’s license to operate as
a nursing home. This order contained significantly more factual
findings. As to the availability of assistance for the residents,
AHCA found:
Due to the active state of emergency of Hurricane
Irma, the Florida Emergency Operations Center was
actively staffed to assist with critical incidents.
Additional emergency resources through several state
and local government agencies were also available. This
includes potential assistance with timely evacuation,
which the Facility never requested.
After reviewing medical records, AHCA made specific factual
findings for the 8 deceased residents, several of whom had
documented body temperatures of between 107-109.9 degrees
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when they died, though facility staff later went back and entered
logs reflecting relatively normal body temperatures.
Residents number 2, 1, 8, and 7 all died at the hospital with
elevated body temperatures. For resident number 2, facility
records showed that at 7 p.m. on September 12, the resident’s
temperature was 99.8 degrees. At 4:32 a.m. on September 13,
hospital records show the resident arrived in cardiac arrest with
a body temperature of 108.3 degrees. However, 10 minutes later,
at 4:42 a.m., a nurse at the facility entered a note that the
patient’s temperature was 101.6 degrees. AHCA found the
“nursing note, though not so designated by staff, is an apparent
‘late entry’ as the resident had already been transported to the
hospital at the time of the note’s entry. . . . It is extremely
disturbing that the facility made a late entry claiming the
temperature of 101.6, when the resident was already dying at the
hospital with a temperature of 108.3.” (Emphasis supplied).
Similarly for resident number 1, a “late entry” in the
facility’s records reflected a temperature of 97 degrees at
midnight. The resident was discovered in respiratory distress
with blue lips at 1:30 a.m. and emergency services were
contacted. At 3:43 a.m., the hospital documented the resident’s
temperature to be 107 degrees. The patient died “with a diagnosis
of heat stroke.”
Resident number 8 had a temperature of 98.2 degrees on the
afternoon of September 12, and a temperature of 101 degrees at
3:31 a.m. on September 13, according to facility records. A “late
entry” with no time description stated the resident went into
respiratory distress. Emergency services were called. The
resident arrived at the hospital at 6:42 a.m. with complaints of
heart attack and “severe hyperthermia.” The patient died 7
minutes later with a body temperature of 109.9 degrees.
Resident 7 had a body temperature of 97 degrees at 10:34
p.m. on September 12 according to facility records. At 6:55 a.m.
on September 13, emergency medical records reflected the
patient had an altered mental state, hyperthermia, and
respiratory distress. The resident’s temperature at the time was
documented as 103.3 degrees and the skin was “hot.” Hospital
records stated the patient was admitted at 7:03 a.m. without a
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pulse. The patient was pronounced dead at 7:54 a.m. with a body
temperature of 108.5 degrees.
For patient 5, facility records reflected a temperature of 98.6
degrees at 2:20 p.m. on September 12. A “late entry” dated
September 14 at 8:15 documented that the patient was resting in
bed with even and unlabored breathing. However, the resident
“had expired before this entry was made.” AHCA found that no
other documentation regarding the patient’s condition or
hospitalization was made for review.
Residents 4, 6, and 3 died at the facility between midnight
and 1:30 a.m. on the morning of September 13. The facility did
not record their body temperatures at the time of death.
Resident 4 died of cardiac arrest, resident 6 was found
unresponsive by facility staff, and no circumstances surrounding
the death of resident 3 were provided.
AHCA found that the facility “knew or should have known
the danger presented to its residents in its physical plant, yet
failed to monitor, care for, and protect its residents. [Its] sole
identified response was to belatedly call ‘911’ on an individual
basis as its residents suffered, one after another, cardiac or
respiratory arrest,” and they arrived at the hospital “too far gone
and far too late to be saved.” The facility was “located across the
street from a large, air-conditioned public hospital,” which was
“fully functional,” yet the facility “failed to transfer its residents .
. . in a timely fashion.” “These core body temperatures are the
product of the facility’s failure to maintain a safe environment at
the facility, failure to properly monitor its patients, and failure to
timely report an ongoing medical emergency. [The facility]’s
records are replete with late entries.”
The agency “conclude[d] that this facility’s administrator and
medical professionals did not know to call ‘911’ in an ongoing
emergency. As such, this facility presents a danger to every
person on its premises . . . .” AHCA determined the facility’s
deficient practices were an immediate, serious danger to public
health, safety, and welfare, were likely to continue without
intervention from AHCA, and less restrictive actions, such as the
assessment of fines, would not ensure future residents’ safety.
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Thus, AHCA found the emergency suspension of the facility’s
license was a necessary and narrowly tailored remedy.
II. ANALYSIS
A. Sufficiency of the Immediate Order on Moratorium of
Admissions
The facility petitions this court for a writ of certiorari to
quash the Immediate Moratorium on Admissions, arguing it
contained insufficient factual allegations to justify emergency
action. This order contains the least factual allegations of the
three emergency orders. However, AHCA argues this issue is
moot because this order suspending the admission of new
patients was subsumed by the Emergency Suspension Order,
which suspended the facility’s license to operate.
The facility argues this issue is not moot for two reasons.
First, the facility argues AHCA may use the moratorium as
grounds to impose future penalties. Section 400.121(3)(a), Florida
Statues, provides that AHCA “shall revoke or deny a nursing
home license” if a facility “[h]as had two moratoria issued
pursuant to this part or part II of chapter 408 which are imposed
by final order for substandard quality of care . . . within any 30-
month period.” (Emphasis added). However, the moratorium was
not issued “by final order.” It is a non-final order. Thus, this
argument is without merit.
Second, the facility argues the harm imposed by the
moratorium cannot be remedied by an administrative hearing
because it will be unable to resume operations until after the
administrative proceedings are concluded. However, even if this
court quashes the moratorium, the facility will still be unable to
resume operations due to the suspension of its license through
the Emergency Suspension Order, which we find to be sufficient.
A reversal of the moratorium can have no actual effect on the
facility. As such, this issue is moot. See Godwin v. State, 593 So.
2d 211 (Fla. 1992) (“An issue is moot when the controversy has
been so fully resolved that a judicial determination can have no
actual effect. A case is ‘moot’ when it presents no actual
controversy or when the issues have ceased to exist.”).
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Accordingly, the petition for writ of certiorari is denied as to this
order.
B. Immediate Suspension Final Order
The facility filed an appeal challenging the ISFO on two
bases: (1) there were insufficient factual allegations to support
the order; and (2) AHCA failed to provide an administrative
hearing following entry of the order.
(1) Sufficiency of Factual Allegations
The ISFO was entered pursuant to section 409.913, which
states that if AHCA “has received reliable information of patient
abuse or neglect,” AHCA may enter an “[i]mmediate suspension”
from the Medicaid program, provided that it “issue an immediate
final order under s. 120.569(2)(n).” § 409.913(15)(p), (16)(d), Fla.
Stat. Section 120.569(2)(n) states that “[i]f 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.”
§ 120.569(2)(n), Fla. Stat. (emphasis added).
“The standard of review of an immediate final order is
whether, on its face, the order ‘sufficiently states particularized
facts showing an immediate danger to the public welfare.’” Robin
Hood Grp., Inc. v. Fla. Office of Ins. Regulation, 885 So. 2d 393,
396 (Fla. 4th DCA 2004) (quoting Saviak v. Gunter, 375 So. 2d
1080 (Fla. 1st DCA 1979)). Immediate final orders “must contain
facts sufficient to demonstrate: (1) Immediate, serious danger to
the public health, safety, or welfare; (2) The order takes only that
action necessary to protect the public considering the emergency
(i.e., the remedy is tailored to the harm); and, (3) Procedural
fairness under the circumstances (the procedure provides at least
the same procedural protection given by other statutes, or the
state or federal Constitutions).” Allstate Floridian Ins. Co. v.
Office of Ins. Regulation, 981 So. 2d 617, 623 (Fla. 1st DCA 2008).
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The facility argues the final order fails to expressly allege
abuse or neglect, or a direct causal relationship between the heat
and the death of the residents. It argues the order fails to address
whether there was any evidence of excessive heat in the facility,
whether the patients’ deaths could have been caused by the
negligence of the first responders or “transfer trauma,” whether
the deaths would have occurred regardless of the hurricane, or
whether the patients were in the facility when they “ultimately
expired.” The facility also argues the order did not specify
whether power had been restored or whether emergency
conditions still existed at the time the order was entered. It
asserts the order could have been more narrowly tailored to
suspend participation in the Medicaid program only until power
was restored or generators were installed. Alternatively, the
facility argues a range of less severe disciplinary sanctions such
as fines or liens were available under section 409.913 for
Medicaid providers.
Because the order reflects that the facility was evacuated,
the facility argues there can be no finding of an ongoing
emergency. Instead, the facility argues it is effectively being
disciplined for past behavior, and disciplinary proceedings must
be brought through a chapter 120 hearing after notice, not
through an immediate final order.
AHCA argues these allegations are sufficient. It emphasizes
that courts have considered whether or not harm has already
occurred as a significant factor in determining whether there is
an immediate danger to the public.
In Tauber v. State Board of Osteopathic Medical Examiners,
362 So. 2d 90, 93 (Fla. 4th DCA 1978), the Fourth District found
the emergency suspension of a doctor’s license was justified, even
though the alleged malpractice occurred 110 days before, because
the court could “conceive of no greater emergency of immediate
necessity than that which endangers the preservation of human
life.” However, courts have been more reticent to find a
continuing danger where a violation did not result in harm. See
St. Michael’s Acad., Inc. v. Dep’t of Children & Families, 965 So.
2d 169, 172 (Fla. 3d DCA 2007) (quashing emergency order in
part because there was no allegation that any child had suffered
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injury or harm); Daube v. Dep’t of Health, 897 So. 2d 493, 494
(Fla. 1st DCA 2005) (finding emergency order suspending a
doctor’s license based on allegations that he used an
unauthorized Botox procedure was too broad where there was no
evidence that a patient was injured, and order could have simply
required him to stop using the unapproved product).
Here, AHCA alleges that 8 patients have already died, which
is a significant factor in determining whether there is an
immediate danger to the public.
AHCA also correctly notes that nothing in section 409.913
permits it to issue a suspension from the Medicaid program
contingent upon conditions like those suggested by the facility,
such the restoration of power or the installation of a generator.
To the contrary, section 409.913(16)(d) mandates that it “shall
impose” an “[i]mmediate suspension, if the agency has received
information of patient abuse or neglect.”
Though the allegations could have been more specific, the
order sufficiently implied a serious failure by staff to protect the
residents from dangerous conditions present in the facility. See
Bertany Ass’n for Travel & Leisure, Inc. v. Fla. Dep’t of Fin.
Servs., 877 So. 2d 854, 855-56 (Fla. 1st DCA 2004) (finding
allegations in emergency order were sufficient to “support an
inference” that unauthorized activity “may continue absent a
cease and desist order”).
While the facility is correct that emergency orders cannot be
used to discipline prior conduct, prior conduct is relevant to
determining future risk. “There is ample precedent supporting
the suspension of a licensee upon [a] showing of past harm when
the harm is sufficiently serious and of a nature likely to be
repeated.” Stock v. Dep’t of Banking & Fin., 584 So. 2d 112, 115–
16 (Fla. 5th DCA 1991) (finding agency was justified in revoking
license where banker withdrew money from a customer’s account
8 times over a 12 month period, totaling over $60,000).
In contrast, “where the past conduct significantly pre-dates
the emergency order and there is nothing else in the licensee’s
history that would support an inference of continuing bad
conduct, allegations of past harm standing alone are insufficient
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to support the emergency suspension or restriction of a license.”
Omulepu v. State, Dep’t of Health, 198 So. 3d 1046, 1047 (Fla. 1st
DCA 2016). In Omulepu, this court reversed an emergency order
that alleged a plastic surgeon committed malpractice while
operating on several patients 9 months prior to the entry of the
emergency order. Because there were no allegations of
misconduct prior to or after the alleged incidents, there was no
indication that the doctor’s past conduct was likely to continue.
Id. at 1047-48.
Here, unlike Omulepu, the emergency order was entered
very quickly after the alleged conduct. The order did not allege an
isolated incident or a single mistake in judgment. Instead, it
alleged that a total of 8 patients died over the course of several
hours, 3 prior to the arrival of first responders, in a facility so hot
the first responders evacuated it. The facility staff failed to
evacuate the patients to the open hospital across the street even
after multiple patients suffered medical distress and several died.
This order sufficiently alleged an immediate, serious danger to
the public health, safety, or welfare. AHCA was statutorily
required to suspend the facility’s Medicaid participation upon
evidence of patient abuse or neglect. Thus, the order could not
have been more narrowly tailored.
(2) Failure to Provide an Administrative Hearing
The facility complains that AHCA erred by not providing an
administrative hearing and that we should overturn the order
and remand for such a hearing. There is no requirement that a
hearing be held prior to the issuance of an emergency order. The
question of whether AHCA was required to provide a post-order
hearing is not properly before this court. The record does not
reflect that the facility requested such a hearing. We, therefore,
decline to rule on this issue because it was not properly
preserved. See Rosenzweig v. Dep’t of Transp., 979 So. 2d 1050,
1052 (Fla. 1st DCA 2008) (“[A]ppellants waived their right to go
to a formal hearing . . . by not requesting a formal hearing at any
time.”)
In its reply brief, the facility argues for the first time that
the text of the final order was required to provide notice of the
right to an administrative hearing, and the lack of this notice
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rendered the order facially insufficient. We decline to address
issues raised for the first time in the reply brief. See Parker-
Cyrus v. Justice Admin. Comm’n, 160 So. 3d 926, 928 (Fla. 1st
DCA 2015) (citing United Auto Ins. Co. v. Hollywood Injury
Rehab. Ctr., 27 So. 3d 743, 744 n.1 (Fla. 4th DCA 2010) (“[I]ssues
raised for the first time in the reply during certiorari proceedings
will not be considered.”); Land v. Fla. Dep’t of Corr., 181 So. 3d
1252, 1254 (Fla. 1st DCA 2015) (“‘An issue not raised in an initial
brief is deemed abandoned and may not be raised for the first
time in a reply brief.’” (quoting Hoskins v. State, 75 So. 3d 250,
257 (Fla. 2011))). Thus, we affirm the ISFO.
C. Emergency Suspension Order
The facility also argues that the Emergency Suspension
Order, which suspended its license to operate, was facially
insufficient. This argument is without merit.
The Emergency Suspension Order contained significantly
more detailed factual allegations than the first two orders. It
included facts alleging a causal connection between the heat and
the patients’ deaths. Four of the residents died soon after being
admitted to the hospital with body temperatures between 107
and 109.9 degrees. However, staff members went back and
created “late entry” notes reflecting that the patients had
relatively normal body temperatures at a time when they were
already dead or dying at the hospital.
This order also expressly alleged deficient conduct by staff,
specifically, a failure to monitor patients and a failure to timely
call 911 and evacuate the facility:
[The facility] knew or should have known the danger
presented to residents in its physical plant, yet failed to
monitor, care for, and protect its residents. [The
facility’s] sole identified response was to belatedly call
‘911’ on an individual basis as its residents suffered, one
after another, cardiac or respiratory arrest. In addition,
[the facility] was located across the street from a large,
air-conditioned public hospital. This hospital was fully
functional during the relevant period, yet [the facility]
failed to transfer its residents to that large, air-
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conditioned public hospital, or any other appropriate
placement, in a timely fashion.
This order also contained specific reasons for concluding that
the danger to residents would not end when the power was
restored and that suspension was necessary. AHCA concluded
that “this facility’s administrator and medical professionals did
not know to call ‘911’ in an ongoing emergency. As such, this
facility presents a danger to every person on its premises.” Thus,
the suspension of the facility’s license was necessary to protect
the residents from “unsafe conditions and deficient practices.”
Contrary to the facility’s argument, AHCA alleged this
conduct violated the law. Specifically, it violated section
400.141(1)(h), Florida Statutes, which requires facilities to
operate the premises “in a safe and sanitary manner,” and
section 400.102(1), Florida Statutes, which states AHCA may
take action against a license in the event of “[a]n intentional or
negligent act materially affecting the health or safety of residents
of the facility.”
These allegations are more than sufficient. The order did not
merely allege a single lapse in judgment, but instead a failure to
act towards multiple patients over the course of many hours,
which led AHCA to conclude the staff did not know to call 911 in
an emergency. Thus, this order contained sufficiently detailed
allegations of an immediate serious danger that was likely to
continue without the suspension, which could not have been more
narrowly tailored. See § 120.60(6)(c), Fla. Stat.; Sanchez v. Dep’t
of Health, 225 So. 3d 964, 966 (Fla. 1st DCA 2017); Preferred RV,
Inc. v. Dep’t of Highway Safety & Motor Vehicles, 869 So. 2d 713,
714 (Fla. 1st DCA 2004). As such, the order was facially
sufficient.
The order in case number 1D17-3858 is AFFIRMED. The
petitions for writ of certiorari in case numbers 1D17-3883 and
1D17-4092 are DENIED.
ROBERTS and WETHERELL, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Geoffrey D. Smith, Timothy B. Elliott, and Corinne T. Porcher of
Smith & Associates, Tallahassee, for Appellant/Petitioner.
Stephen A. Ecenia, J. Stephen Menton, Tana D. Storey, Craig D.
Miller, and Gabriel F. V. Warren of Rutledge Ecenia, P.A.,
Tallahassee, for Appellee/Respondent.
William Roberts, Deputy General Counsel, and Tracy C. George,
Chief Appellate Counsel, Agency for Health Care Administration,
Tallahassee, for Respondent.
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