STATE OF FLORIDA DEPARTMENT OF ELDER AFFAIRS In Re: Petition for Variance from Emergency Rule 58AER17-1, Florida Administrative Code, filed Community Senior Life, Inc., d/b/a Homestead Village Retirement Community / DOEA No. 2017-0089 FINAL ORDER GRANTING A CONDITIONAL TEMPORARY VARIANCE FROM RULE 58AER17-1, FLORIDA ADMINISTRATIVE CODE The State of Florida, Department of Elder Affairs (Department) received the incorporated Petition 1 for Variance from Emergency Rule 58AER17-1, Florida Administrative Code (Petition) filed by the above-named Petitioner with the Agency Clerk on October 19, 2017. After reviewing the Petition and supporting attachments, the Department grants the Petitioner a conditional variance, as outlined below, to comply with the provisions of subsection (2) of Emergency Rule 58AER17-1 related to the implementation of the Facility s detailed plan for compliance. GENERAL BACKGROUND AND PETITION ALLEGATIONS 1. The Agency received the incorporated Petition for Variance from the provisions of Rule 58AER17-1, Florida Administrative Code. 2. The statutory authority of the Department to grant a waiver or a variance from its rules is derived from Section 120.542(1) - (2), Florida Statutes (2017). 3. The administrative rule that is the subject of this Petition is Emergency Rule 58AER17-1 (the Rule) entitled Procedures Regarding Emergency Environmental Control for Assisted Living Facilities. The intent of the Rule is to limit the multitude of potentially 1 The Petition is hereby incorporated by reference. The Petition is not attached as an exhibit in order to avoid redundancy. The Petition can be found on the Department s website, www.elderaffairs.state.fl.us.
dangerous situations that arise in an emergency. If a majority of the assisted living facilities are operating under stable conditions where temperatures are safe and emergency power is working appropriately, then unanticipated challenges such as a generator failure or a fuel shortage can be addressed on an expedited and controlled basis. If local emergency responders only needed to address a small percentage of issues, as opposed to widespread issues, that allows more flexibility to assist with generator repairs and other like issues. 4. The underlying statute for Emergency Rule 58AER17-1 is section 429.41, Florida Statutes (2017). This statute authorizes the Department to adopt rules establishing reasonable and fair minimum standards in relation to... [the] maintenance of facilities..., relating to plumbing, heating, cooling, lighting, ventilation, living space, and other housing conditions, which will ensure the health, safety, and comfort of residents. See 429.41(1)(a), Fla. Stat. (2017). 5. The allegations of fact set forth within the Petition are accepted as fact solely for the purposes of this Final Order. 6. The Petitioner seeks a variance that would allow it additional time to comply with the planning and the implementation of the provisions of the Rule. The Petitioner recognizes its duty to safeguard the needs of its residents, but maintains that it needs additional time to fully comply with the requirements of the Rule. Without a variance, the Petitioner would be subject to the imposition of administrative fines and possibly license revocation. 7. The Petitioner maintains that a strict application of the Rule will result in a substantial hardship on the Petitioner or violate principles of fairness.
CONCLUSIONS OF LAW 8. The Department has substantive jurisdiction over this matter as the regulatory agency responsible for the promulgation of rules for assisted living facilities. See Chapter 429, Fla. Stat. (2017). The Department is the proper state agency to issue an order on a petition for a variance from or a waiver of one of its administrative rules. 9. Under section 120.542, Florida Statutes, the Petitioner is required to show that the purpose of the underlying statute, in this case section 429.41, Florida Statutes, will be or has been achieved by other means. In addition, a Petitioner is required to show that the application of the Rule to the Petitioner creates a substantial hardship or violates principles of fairness. 10. The facts set forth within the Petition, which have been accepted as true solely for purposes of this proceeding, demonstrate that the purpose of the underlying statute will be or has been achieved by other means by the Petitioner. The Petitioner has provided sufficient information for the Department to conclude that a good-faith effort has been made to comply with the rule, including steps taken to implement the Petitioner s plan for compliance. 11. Therefore, the facts set forth in the Petition warrant and justify a temporary conditional variance of 180 days from the date of this order to comply with the provisions of subsection (2) of the Rule related to the implementation of the Petitioner s detailed plan for compliance. 12. The Department is aware that there may be a change in the law, either by statute or by rulemaking. In such an instance, the new statute or rule would control and dictate the regulatory requirements to safeguard assisted living facility residents. This order does not prohibit the Petitioner from seeking an additional variance after this temporary variance expires if the Petitioner is able to satisfy the requirements for an additional variance.
CONDITIONS ON VARIANCE 13. As part of granting this temporary variance, the Department imposes the following conditions: Within three (3) days of the date of this order, the Petitioner s administrator must send the attached letter to the resident and resident s legal representative from the assisted living facility informing them that the Petitioner is seeking a variance from the requirements of Emergency Rule 58AER17-1. Petitioner s administrator shall also send an e- mail to the Department at ALFResidentLetter@elderaffairs.org within forty-eight (48) hours of the letter being sent by the Petitioner attesting that the attached letter has been sent. Petitioner shall keep the letter as part of the resident s file. 14. Upon request, the Petitioner shall notify the Department that it has fully complied with this condition. The failure to comply with this condition within the three (3) day time period shall be grounds for the Department to vacate the requested variance. Based upon the above, it is ORDERED: 1. The Petition for Variance from Emergency Rule 58AER17-1 is GRANTED as set forth above. ORDERED in Tallahassee, Florida, on this 15th day of November, 2017. Jeffrey S. Bragg, Secretary Florida Department of Elder Affairs
NOTICE OF RIGHT OF REVIEW A party that is adversely affected by this order is entitled to request an administrative hearing pursuant to sections 120.569 and 120.57, Florida Statutes. In order to obtain a formal proceeding before the Florida Division of Administrative Hearings under section 120.57(1), Florida Statutes, the request for an administrative hearing must conform to the requirements in Rule 28-106.201, Florida Administrative Code, and must state the material facts in dispute. The request for hearing must be filed with the Agency Clerk for the Department of Elder Affairs within 21 days of the receipt of this order. If the request for hearing is not timely received by the Agency Clerk by 5:00 p.m. Eastern Time on the 21st day, the right to a hearing will be waived. Electronic mail is acceptable. The address and facsimile number of the Agency Clerk are: Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, FL 32399-7000, Facsimile (850) 414-2126; agencyclerk@elderaffairs.org CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the belownamed persons by the method designated on this 15th day of November, 2017. Francis Carbone, Agency Clerk Department of Elder Affairs 4040 Esplanade Way Tallahassee, Florida 32399-7000 (850) 414-2342
Jay Adams, Esq. Joshua P. Brian Broad and Cassel LLP Attorneys for the Petitioner 215 S. Monroe St., Suite 400 (32301) P.O. Drawer 11300 Tallahassee, FL 32302 jadams@broadandcassel.com jbrian@broadandcassel.com pwilliams@broadandcassel.com mjnorman@broadandcassel.com (Electronic Mail) Keisha Woods Assisted Living Unit Manager Agency for Health Care Administration Keisha.Woods@ahca.myflorida.com (Electronic Mail) Joint Administrative Procedures Committee joint.admin.procedures@leg.state.fl.us (Electronic Mail)
November 9, 2017 Secretary Jeffrey S. Bragg 4040 Esplanade Way, Tallahassee, Florida 32399-7000 Dear Assisted Living Facility Resident, In September, one of the largest storms in Florida history made landfall and impacted our entire state. Immediately following Hurricane Irma, to increase patient safety, Governor Scott ordered an emergency rule to assisted living facilities to have a working generator and enough fuel to keep patients safe and comfortable for 96 hours. In a state with a climate like Florida s that is prone to hurricanes, it is critical that every patient is kept safe in a temperature controlled environment during a power outage. Department of Elder Affairs has granted your facility a one-time conditional variance to allow additional time for the facility to come into full compliance. We expect your assisted living facility to follow the law and fully comply with these important guidelines as soon as possible. We have asked your facility to inform you and your family members when they have achieved full compliance. You can also review the status of your facility at http://elderaffairs.state.fl.us/doea/rulemaking.php. We are urging every assisted living facility resident to review each facility s emergency plan by either requesting it directly from your facility s administrator, or from your local emergency management professional. It is important that along with the ability to keep patients comfortable during an emergency that each facility clearly understands what other steps should be taken to be prepared. Every family, business and health care facility in Florida must always be prepared for an emergency. For more information on this life-saving rule, visit the Department of Elder Affairs Website at http://elderaffairs.state.fl.us/doea/rulemaking.php or call the Agency for Health Care Administration s Consumer Complaint Hotline at Consumer Complaint Hotline at (888) 419-3456. We hope that these measures will keep every Floridian in an assisted living facility safe during an emergency. Sincerely, Secretary Bragg