IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT. Appellant, CASE NO. 1D vs. AHCA NO

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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT RECEIVED, 10/13/ :16 AM, Jon S. Wheeler, First District Court of Appeal REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC, Appellant, CASE NO. 1D vs. AHCA NO STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent/Appellee. MOTION FOR RECONSIDERATION OF ORDER DENYING STAY Pursuant to Florida Rule of Appellate Procedure 9.300, Appellant, Rehabilitation Center at Hollywood Hills, LLC ( Appellant or Hollywood Hills ), requests this Court to reconsider an Order denying stay of the Immediate Suspension Final Order issued by the Agency for Health Care Administration (AHCA or the Agency ) against the Appellant s nursing home on September 14, 2017, pending review of the order for legal sufficiency. In support of this Motion, Appellant states as follows: 1

2 1. On October, 2, 2017, Appellant filed a Motion to Stay with regard to an Immediate Suspension Final Order (ISFO) on Appellant s 152-bed nursing home in Broward County that was issued by AHCA on September 13, 2017, following the devastating effects and aftermath of Hurricane Irma that caused a power outage to the facility s Air Conditioning System (AC unit). The ISFO states that Appellant s Medicaid participation is suspended for at least 20 years, (A copy of the IFSO is attached as Exhibit A.) Appellant filed a Notice of Appeal of Final Administrative Order for appellate review of IFSO on the merits. 2. On October 11, 2017, the Court entered an Order denying Appellant s Motion to Stay the ISFO on grounds that the issue is moot due to another Order denying Appellant s Motion to Stay in Case No. 1D , which involves an Emergency Suspension Order (ESO) issued on September 20, It appears that the stay in Case No. 1D was denied on the merits, prompting the Court to deny the stay in this case on mootness. (For the Court s ease of reference, a copy of these orders are attached herein as Exhibit B and Exhibit C, respectively.) Appellant requests reconsideration of its motion for stay of the ISFO because the ISFO, which concerns suspension from the federal Medicaid program, will continue to have 1 The Court also issued a similar order, in Case No. 1D , denying Appellant s Motion to Stay an Immediate Moratorium on Admissions on the same grounds. Appellant will address this Order in a separate request for reconsideration. 2

3 injurious ramifications on Appellant s facility that extend beyond the issuance of, and are not mooted by, the ESO concerning the nursing home license suspension. 3. An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect or when the issues in controversy have ceased to exist. A.G. v. Department of Children and Family Services, 932 So.2d 311 (Fla. 2 nd DCA 2006); citing Merkle v. Guardianship of Jacoby, 912 So.2d 595, 600 (Fla. 2d DCA 2005) (quoting Godwin v. State, 593 So.2d 211, 212 (Fla.1992)). It is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue. Montgomery v. Dep't of Health & Rehabilitative Servs., 468 So.2d 1014, (Fla. 1st DCA 1985). A case becomes moot, for purposes of appeal, where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief. Id. (emphasis added). 4. Mootness only occurs in two basic situations: [W]hen the issues presented are no longer live or [when] the parties lack a legally cognizable interest in the outcome. Montgomery v. Department of Health and Rehabilitative Services, 468. So. 2d 1014 (Fla. 1 st DCA 1985), quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L.Ed.2d 491, 502 (1969). 3

4 5. Appellant requests reconsideration of its Motion for Stay on the grounds that the ISFO is not mooted by this Court s denial of the motion to stay the ESO for several reasons. Primarily, the ISFO concerning suspension from the Medicaid program, which is in effect for 20 years, will outlast the ESO and continue to be a case in controversy long after the resolution of the ESO matter. 6. The Appellant has requested, and plans to participate in, an Administrative Hearing pursuant to sections and (1), Florida Statutes, for a determination of the facts underlying the allegations pertaining to the license suspension or revocation set forth in the ESO. Upon a finding that the Agency s factual allegations were not proven by clear and convincing evidence as is required in a license suspension or revocation proceeding, a Final Order denying license revocation or suspension would be entered and the ESO will be dismissed. However, the ISFO concerning Medicaid suspension will still be in place (for 20 years) regardless of the outcome of the administrative hearing on license suspension or revocation proceeding. AHCA contends that the ISFO suspending Appellant from the Medicaid program is the final adjudication on the merits and that no further administrative proceeding will be allowed as to the underlying facts and the legal issue of the Medicaid suspension outside of this pending appeal proceeding. 7. Likewise, this Court, in reviewing the Petition for Review of the ESO, may agree with Appellant that the ESO does not meet the essential requirements of 4

5 the law for emergency orders. If so, the ISFO on Medicaid suspension will still be in place and would continue to harm Appellant until a decision is reached on the merits by either this Court or an administrative law judge. 8. Finally, the failure to stay the ISFO has other immediate and future implications to the Appellant that are not mooted by the denial of the stay on the ESO. Pursuant to (10), Florida Statutes, AHCA may take further licensing action against any other entity sharing common ownership with Appellant by virtue of the ISFO in place at Appellant s facility. In fact, AHCA has already issued a notice of intent to deny licensure renewal of a commonly-owned assisted living facility, Floridian Gardens ALF, because of the ISFO in place in the instant case. The idea that the ESO moots the ISFO in this case is simply incorrect. 9. The issue of mootness was introduced in this case by AHCA s Response to Appellant s Motion for Stay. Appellant was not afforded an opportunity to reply without leave of the court, however, it requests reconsideration of the order denying the motion to stay the ISFO on grounds that it is moot for the reasons outlined above. WHEREFORE, the Appellant requests reconsideration of its denial of Appellant s Motion for Stay of the Immediate Suspension Final Order, and entry of an order staying same, against Hollywood Hills on September 14, 2017, pending appellate review by this Court. 5

6 Respectfully submitted this 12 th day of October Respectfully submitted, /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 Appellant, 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 13 th day of October, I further certify that copies of the foregoing have been furnished by to the following on this 13 th day of October, 2017: Stephen A. Ecenia, Esq. J. Stephen Menton, Esq. Gabriel F. V. Warren, Esq. Tana Storey, Esq. Rutledge Ecenia 6

7 119 S. Monroe St., Ste. 202 Tallahassee, FL 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 S:\ Hollywood Hills DCA Moratorium on Admissions\Pleadings\Final\Motion for Reconsideration- Medicaid gds-ctp edits.docx 7

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19 DISTRICT COURT OF APPEAL, FIRST DISTRICT 2000 Drayton Drive Tallahassee, Florida Telephone No. (850) October 11, 2017 CASE NO.: 1D L.T. No.: Rehabilitation Center at Hollywood Hills, LLC Appellant / Petitioner(s), v. State of Florida, Agency for Health etc. Appellee / Respondent(s) BY ORDER OF THE COURT: In light of the Court s order denying petitioner s motion to stay in case number 1D , appellant s expedited motion to stay filed on October 2, 2017, is denied as moot. Appellant s motion to strike filed on October 10, 2017, is denied. Served: I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order. Stephen A. Ecenia William H. Roberts Timothy B. Elliott Gabriel F. V. Warren am J. Stephen Menton Tracy Cooper George, Chief Appellate Counsel Stuart Williams, GC Geoffrey D. Smith Tana Storey Corinne T Porcher Exhibit B

20 DISTRICT COURT OF APPEAL, FIRST DISTRICT 2000 Drayton Drive Tallahassee, Florida Telephone No. (850) October 11, 2017 CASE NO.: 1D L.T. No.: Rehabilitation Center at Hollywood Hills, LLC Appellant / Petitioner(s), v. State of Florida, Agency for Health etc. Appellee / Respondent(s) BY ORDER OF THE COURT: Petitioner s expedited motion for stay filed on October 3, 2017, is denied. Served: I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order. Justin M. Senior, Secretary Geoffrey D. Smith Tracy Cooper George, Chief Appellate Counsel Andrew T. Sheeran am Stephen A. Ecenia William H. Roberts Tana Storey Corinne T Porcher J. Stephen Menton Leslei G. Street Timothy B. Elliott Gabriel F. V. Warren Exhibit C