A Primer on Emergency Rulemaking
Over the past several months, there has been a renewed focus on emergency rulemaking, and the subsequent challenges to those rules, following the post-Hurricane Irma emergency rules adopted by the Department of Elder Affairs (DOEA)1 and Agency for Health Care Administration (AHCA).2 The emergency rulemaking process is not typically used by agencies; from 2008-2017, only 1,055 emergency rules were adopted.3 In contrast, during the same time period 22,358 “regular” rules were adopted.4 This article reviews the emergency rulemaking process and the procedures for challenging emergency rules.
What Is Emergency Rulemaking?
The Administrative Procedure Act allows an agency to use an accelerated rule adoption process “[i]f an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action….”5 An emergency rule is only effective for 90 days and may not be renewed unless there is a challenge to a proposed rule that is the subject of the emergency rule or the proposed rule that is the subject of the emergency rule is awaiting legislative ratification.6 An emergency rule is effective upon filing, or on a date less than 20 days after filing.7
In order to utilize the emergency rulemaking process, an agency must take certain procedural protections, primary of which is the publication of “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.”8 This “statement, which is a principal element of the abbreviated record for judicial review of emergency rulemaking, must be factually explicit and persuasive concerning the existence of a genuine emergency.”9 The statement must contain adequate reasons demonstrating the need for an emergency rule and why the issue cannot be addressed through the nonemergency rulemaking process.10 The reporter’s comments on the 1974 Administrative Procedure Act for the provision authorizing the adoption of emergency rules emphasized the importance of the emergency findings statement: “This provision generally continues existing law. Reasons and special facts are required to be stated in connection with emergency rules, so that this provision does not become a way around the other formalities of rulemaking.”11
What Constitutes an Emergency?
A great deal of litigation in the emergency rule context is centered on whether emergency action is actually required. It has been observed that “[a]n agency’s assumption of emergency powers in the absence of a bona fide emergency violates basic rights of due process, and constitutes a usurpation of power.”12 An agency cannot create an emergency due to its own inaction. This is illustrated in Postal Colony Co., Inc. v. Askew, 348 So. 2d 338 (Fla. 1st DCA 1977), aff’d, 372 So. 2d 913 (Fla. 1978), when the court rejected an emergency rule in which the agency’s findings stated that the rule was necessary to meet a statutory deadline. The court found that the emergency was created “by an avoidable administrative failure to make the necessary regulations effective within the time allowed.”13
An agency’s failure to anticipate the consequences of a foreseeable event also does not provide the basis for an emergency rule. For example, a court invalidated the Department of State’s emergency rule pertaining to the submission of petitions proposing amendments to the state constitution, finding that the secretary’s “failure to foresee the submission of several thousand petitions at the time near the deadline and the concomitant problems constitute[d] an avoidable administrative failure.”14 Likewise, a challenge to a proposed rule does not necessarily justify the need for an emergency rule:
“Agencies whose permanent rulemaking has been temporarily stymied by a rule challenge may of course resort to emergency rulemaking when the delay creates an emergency; but the unusual conditions giving rise to the emergency must be clearly documented. Delay alone cannot suffice. If the delay attending permanent rule challenge proceedings were alone sufficient to justify emergency rulemaking, the legislature’s provision for an automatic stay could in every case be neutralized for 90 days by emergency rulemaking.”15
Waiver from Emergency Rules
F.S. Ch. 120 provides an expedited process for an individual seeking an emergency waiver or variance to a rule. F.S. §120.542(3) requires the Administration Commission to adopt uniform rules of procedure pursuant to §120.54(5), establishing the procedure for the consideration of requests for emergency variances and waivers.16 Section 120.542(3) provides that such rules “may provide for expedited time frames, waiver of or limited public notice, and limitations on comments on the petition….” The Administration Commission has adopted rules 28-104.004-. 0051, Florida Administrative Code, which provide requirements for filing petitions for emergency variance or waiver, time for agency consideration of the petition, and the procedure for revocation of an emergency or temporary variance or waiver. The emergency waiver process was recently used by a significant number of nursing homes and assisted living facilities, after the adoption of emergency rules 58AER17-01 and 59AER17-02. DOEA has received 1,657 petitions for emergency variances from emergency rule 58ER17-01.17 AHCA has received 605 petitions for emergency variances from emergency rule 59ER17-01.18
Judicial Review of Emergency Rules
There are two ways to challenge an emergency rule: 1) the validity of the rule can be challenged at the Division of Administrative Hearings (DOAH); and 2) the emergency findings can be challenged in a court.
A challenge to the validity of an emergency rule is filed at DOAH pursuant to F.S. §120.56(5). The petition is assigned to an ALJ within seven days of receipt; the hearing is conducted within 14 days; and a final order is issued within 14 days of the hearing.19 An emergency rule challenge at DOAH considers whether the rule is an “invalid exercise of delegated legislative authority” as defined by F.S. §120.52(8). A constitutional challenge to an emergency rule cannot be heard at DOAH.20
Pursuant to F.S. §120.54(4)(a)3., an agency’s findings of immediate danger, necessity, and procedural fairness are judicially reviewable.21 A petitioner may seek judicial review either in an appellate court or at DOAH.22 A court’s jurisdiction to review an emergency rule is properly invoked when the “petitioners maintain that the emergency rule deprives them of a right that they would have otherwise been entitled to.”23 The court’s review is only concerned with the agency’s compliance with F.S. §120.54(4), and not the substantive validity of the rule.24 Furthermore, the court’s review is limited to the review of the agency’s published emergency findings; the court cannot consider additional information submitted by the agency post-publication that justifies the need for the rule.25
• Can an Order Invalidating an Emergency Rule Be Stayed? — A question raised by the appeal of an order invalidating an emergency rule is whether a party is entitled to stay from the court. F.S. §120.68(3) provides in part:
“The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state.”26
Recently, in Florida Ass’n. of Homes & Servs. for the Aging, Inc. v. Agency for Health Care Admin., Case No. 17-5388RE at fn.10 (DOAH Oct. 27, 2017), the prevailing parties in an emergency rule challenge filed a motion for clarification, requesting that the ALJ declare the rules “void ab initio” and hold that no automatic stay applied.27 The petitioners alleged that the motion was necessary because the agencies had announced their intention to continue enforcing the invalidated emergency rules until the resolution of the appeal. The motion was denied, as the ALJ observed that the Uniform Rules of Procedure did not authorize motions for clarification.28 Subsequently, the petitioners filed an emergency joint motion to vacate stay claimed by appellants with the First District Court of Appeal.29 The First District denied the motion, observing that the petitioners had failed to demonstrate the existence of an actual stay.30
Automatic stays are not available in administrative law cases. In 1991, §120.68 was amended to provide in part that “[t]he filing of a petition appealing an order issued by a hearing officer under s. 120.535, whether filed by the agency or any other party, does not stay enforcement of the hearing officer’s order….”31 The bill analysis report explained the reasoning for the new provision, as follows:
“If an agency received an automatic stay of a s. 120.535 order upon filing a petition for review, the [l]egislature’s policy in favor of rulemaking would be frustrated while the case is on appeal. Agencies could simply appeal an adverse determination and avoid rulemaking. An automatic stay could create an incentive for appellate litigation. Agencies might misallocate finite resources in favor of appellate litigation and not provide appropriate levels of resources for rulemaking. The bill provides that an agency or any other party may petition the appellate court to stay a final order pursuant to s. 120.535. The appellate court may stay the hearing officer’s final order if it determines that a stay is necessary to avoid probable danger to the health, safety or welfare of the state. A finding of probable danger means that without the stay it is highly likely that a significant harm will occur. The likelihood of such harm must be balanced against the [l]egislature’s strong policy in favor of rulemaking. If a petition to stay the final order is granted the agency may continue to rely on the statement as a basis for agency action until the appeal is resolved. However, if challenged, an agency statement not adopted by rulemaking must be determined to comply with s. 120.57(1)(b)15. This provision should not conflict with Rule 9.310, Florida Rules of Appellate Procedure. This provision is designed as an exception to that rule provided by general law allowed under Rule 9.3l0(a), Florida Rules of Appellate Procedure. But see City of Jacksonville Beach v. Public Employees Relations Commission, 359 So. 2d 578 (Fla. 1st DCA 1978).”32
Prior to January 1, 2009, Fla. R. App. P. 9.310 provided for an automatic stay of an administrative order upon the filing of a notice of appeal by a public entity. Since the rule appeared to conflict with F.S. §§120.68(3) and 120.56(4)(d), the Appellate Court Rules Committee recommended that the rule be amended to add an exception for cases brought under Ch. 120.33 Thus, a party appealing a decision in an emergency rule case should be aware that automatic stays are not available, and stays are only available under circumstances upon petition to the court or agency.
• When Does an Emergency Rule Become Void? —Another issue related to appeals of emergency rules is whether F.S. §120.56(3)(b), which specifies the time by which a rule becomes void, applies to emergency rules. Section 120.56(3) provides in part:
“(3) CHALLENGING RULES IN EFFECT; SPECIAL PROVISIONS….
“(b) The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires. The agency whose rule has been declared invalid in whole or part shall give notice of the decision in the Florida Administrative Register in the first available issue after the rule has become void.”34
It is unclear if the phrase “rules in effect” in F.S. §120.56(3) applies only to rules adopted pursuant to the process outlined in §120.54(2) and (3), or if it also applies to emergency rules adopted pursuant to §120.54(4). Prior to 2016, §120.56(3) was titled, “CHALLENGING EXISTING RULES; SPECIAL PROVISIONS”; in 2016, it was changed to “CHALLENGING RULES IN EFFECT; SPECIAL PROVISIONS.”35 The bill analysis for HB 183 does not specifically address this change.36
In Board of Optometry v. Florida. Soc’y of Ophthalmology, 538 So. 2d 878 (Fla. 1st DCA 1988), the court construed F.S. §120.56(3)(b) to render a rule as “void and ineffective as of the date” the court’s decision became final. The court explained:
“It is apparent that the statutory scheme in chapter 120 for invalidating agency rules contemplates that once a rule, or an agency statement or form that constitutes a rule under the definition in section 120.52(16), Florida Statutes (1987), has been issued and acted or relied upon by the agency or members of the public in conducting the business of the agency, the rule will be treated as presumptively valid, or merely voidable, and must be given legal effect until invalidated in a section 120.56 rule challenge proceeding….
“The statutory scheme is obviously intended to avoid the chaotic uncertainty that would necessarily flow from retroactively invalidating agency action taken in reliance on the presumed validity of its rule prior to a proper rule challenge proceeding holding the rule invalid.”37
However, both of these cases involved challenges to existing, rather than emergency, rules.38 Emergency rules, unlike rules adopted under the normal rulemaking process, are generally only effective for 90 days to address situations that pose an immediate danger to the public health, safety, or welfare. As such, the concerns expressed by the First District Court of Appeal in Board of Optometry and Abbott Labs. v. Mylan Pharm., Inc., 15 So. 3d 642, 653 (Fla. 1st DCA 2009),regarding the retroactive invalidation of a “regular” ruleare, arguably not present. Additionally, Board of Optometry and Abbott Labs both predate the most recent revision to F.S. §120.56(3). Therefore, the issue of the applicability of §120.56(3)(b) to emergency rules may require judicial or legislative clarification.
The Administrative Procedure Act’s emergency rule promulgation process provides a necessary procedure for agencies to address situations requiring immediate action. The First District Court of Appeal may soon provide additional guidance to the emergency rulemaking process once it renders its decision in Agency for Health Care Administration v. Florida Ass’n of Home & Serv. for the Aging, Inc., Case No. 1D17-4534 (Fla. 1st DCA Oct. 31, 2017). Until then, practitioners should be aware of the potential pitfalls identified in this article when developing and challenging emergency rules.
1 See Fla. Admin. Code R. 58AER17-01, Procedures Regarding Emergency Environmental Control for Assisted Living Facilities.
2 See Fla. Admin. Code R. 59AER17-02, Nursing Home Emergency Power Plan.
3 See Joint Administrative Procedures Committee, 2017 Annual Report at 11. Of the 1,055 emergency adopted from 2008-2017, 742 of those rules were adopted by the Department of Lottery. See id at 10. The Department of Lottery uses the emergency rulemaking process for its various games. See, e.g., Fla. Admin. Code R. 53ER18-8.
4 Joint Administrative Procedures Committee, 2017 Annual Report at 8.
5 See Fla. Stat. §120.54(4)(a) (2017). There are agencies that have statutory authority to adopt emergency rules without making emergency findings. See, e.g., Fla. Stat. §24.109 (2017) (Department of Lottery); Fla. Stat. §213.06 (2017) (Department of Revenue).
6 See Fla. Stat. §120.54(4)(c) (2017). There are a few statutory provisions to the 90-day limitation. See, e.g., Fla. Stat. §95.18(3)(h) (2017); Fla. Stat. §377.809(4)(d) (2017) (permitting the Department of Revenue and Department of Economic Opportunity to adopt emergency rules which stay in effect for six months and may be renewed while permanent rules are in the process of being adopted).
7 See Fla. Stat. §120.54(4)(d) (2017).
8 Fla. Stat. §120.54(4)(a)1.-3. (2017).
9 Florida Home Builders Ass’n. v. Div. of Labor, 355 So. 2d 1245, 1246 (Fla. 1st DCA 1978). See also Hartman-Tyner, Inc. v. Dep’t of Bus. & Prof’l. Regulation, 923 So. 2d 559, 561 (Fla. 1st DCA 2006).
10 See Florida. Health Care Ass’n. v. Agency for Health Care Admin., 734 So. 2d 1052, 1054 (Fla. 1st DCA 1998).
11 Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida 16 (Mar. 19, 1974).
12 Florida Home Builders Ass’n, 355 So. 2d at 1247 (Booth, J., dissenting).
13 Askew, 348 So. 2d at 342. Cf. Little v. Coler, 557 So. 2d 157 (Fla. 1st DCA 1990) (finding that a statutory change supported the need for an emergency rule).
14 Let’s Help Florida v. Smathers, 360 So. 2d 496, 497 (Fla. 1st DCA 1978).
15 Florida Home Builders Ass’n., 355 So. 2d at 1246. See also Golden Rule Ins. Co. v. Dep’t of Ins., 586 So. 2d 429, 431 (Fla. 1st DCA 1991) (finding that an adverse decision in a rule challenge case does not constitute the need for an emergency rule).
16 A search of the Department of State’s website indicates 197 notices of petitions for emergency variance or waiver of rules were published in 2016. See Department of State, www.flrules.org. Fla. Stat. §120.542(6) requires an agency to provide notice of a petition for variance or waiver within 15 days of receipt. Cf. Fla. Admin. Code R. 28-104.005(1) (“The agency shall also give notice by any procedure that is fair under the circumstances or provide notice of the petition to the Department of State for publication in the first available issue of the Florida Administrative Register.”) (Emphasis added). There appears to be conflict between the statute and the rule.
17 See Department of Elder Affairs, http://elderaffairs.state.fl.us/doea/rulemaking.php.
18 See Christine Sexton, Rick Scott Escalates Regulatory Feud with Florida’s Nursing Homes, News Service of Florida (Nov. 20, 2017), available at https://www.orlandoweekly.com/Blogs/archives/2017/11/20/rick-scott-escalates-regulatory-feud-with-floridas-nursing-homes.
19 See Fla. Stat. §120.56(5) (2017).
20 See Florida Home Builders Ass’n. v. Dep’t of Revenue, Case No. 87-3877RE at ¶40 (DOAH Apr. 20, 1988).
21 See also Fla. Stat. §120.68(9) (2017).
22 See Florida Ass’n. of Homes & Servs. for the Aging, Inc. v. Agency for Health Care Admin., Case No. 17-5388RE at fn.10 (DOAH Oct. 27, 2017) (rejecting an agency’s argument that a challenge to its emergency rule findings could only be considered by an appellate court). See also Florida Health Care Ass’n, Inc. v. Dep’t of Health & Rehab. Servs., Case No. 89-7000RE at ¶27 (DOAH Jan. 23, 1990). Cf. Florida Home Builders Ass’n. v. Dep’t of Revenue, Case No. 87-3877RE at ¶46 (DOAH Apr. 20, 1988) (stating that DOAH is not authorized to review an agency’s emergency rule findings because the Division as “a part of the executive branch of Florida government, is not authorized to undertake ‘judicial review.’”).
23 Hartman-Tyner, Inc., 923 So. 2d at 562.
24 See Florida Democratic Party v. Hood, 884 So. 2d 1148, 1151 (Fla. 1st DCA 2004).
25 See Times Publ’g. Co. v. Dep’t of Corrections, 375 So. 2d 304, 306 (Fla. 1st DCA 1979) (rejecting affidavits submitted by the [d]epartment demonstrating the need for the emergency rule because the statute requires information justifying an emergency rule to be published “in writing at the time of, or prior to agency action.”).
26 Fla. Stat. §120.68(3) (2017).
27 See Emergency Joint Motion for Clarification, Case No. 17-5388RE (DOAH Oct. 30, 2017). The term “void ab initio” is defined as “null from the beginning.” Black’s Law Dictionary (10th ed. 2014).
28 See Order Denying Motion for Clarification, Case. No. 17-5388RE (DOAH Oct. 30, 2017).
29 See Agency for Health Care Admin. v. Florida Association of Home & Servs. for the Aging, Inc., Case No 1D17-4534 (Fla. 1st DCA Oct. 31, 2017).
30 See Order, Agency for Health Care Administration, Case No. 1D17-4534 (Fla. 1st DCA Nov. 14, 2017).
31 See Ch. 91-30, §6, Laws of Fla.
32 Fla. H.R. Comm. on Govt. Ops., HB 1879 (1991) Staff Analysis 8-9 (final May 22, 1991).
33 See Fla. R. App. P. 9.190(e)(1) (“The filing of a notice of administrative appeal or a petition seeking review of administrative action shall not operate as a stay, except that such filing shall give rise to an automatic stay as provided in [R]ule 9.310(b)(2) or [Ch.] 120, Florida Statutes….”); Fla. R. App. P. 9.310(b)(2) (“The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, in administrative actions under the Administrative Procedure Act, or as otherwise provided by [Ch.] 120, Florida Statutes….”). See also Appellate Court Rules Comm., In re Amendments to The Florida Rules of Appellate Procedure, Second Amended Triennial Cycle Report of the Appellate Court Rules Committee, SC08-147 (May 6, 2008). See also In re Amendments to The Florida Rules of Appellate Procedure, 2 So. 3d 89 (Fla. 2008).
34 Fla. Stat. §120.56(3)(b) (2017).
35 See Ch. 2016-116, Laws of Fla.
36 See Fla. H.R. Final Bill Analysis, HB 183 (Mar. 29, 2016).
37 Id. at 889. See also Abbott Labs. v. Mylan Pharm., Inc., 15 So. 3d 642, 653 (Fla. 1st DCA 2009) (opining that Fla. Stat. §120.56(3) should not be interpreted to void a rule before the conclusion of appellate procedures because that “would deny a party the right to appellate review of an ALJ order invalidating a rule in the absence of a stay.”).
38 See Florida Soc’y of Ophthalmology v. Bd. of Optometry, Case No. 87-1510RX, (DOAH Dec. 14, 1987); Mylan Pharm., Inc. v. Dep’t of Health, Case No. 07-3704RX, (DOAH Jan. 28, 2008).
Jowanna Nicole Oates is a chief attorney with the Joint Administrative Procedures Committee. She is the immediate past chair of the Administrative Law Section, serves as co-editor of the Administrative Law Section Newsletter, and is a member of The Florida Bar Continuing Legal Education Committee. Oates earned her J.D. from the University of Florida Levin College of Law.
The views expressed herein are those of the author and not intended to reflect the views of the Joint Administrative Procedures Committee or the Florida Legislature.
This column is submitted on behalf of the Administrative Law Section, Robert H. Hosay, chair, and Stephen Emmanuel, editor.