On Friday, Oct. 27, 2017, an administrative law judge in the Florida Division of Administrative Hearings issued a final order finding that two emergency rules (Emergency Rules 58AER17-1 and 59AER17-1) were invalid exercises of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Emergency Rule 59AER17-1
Emergency Rule 59AER17-1 is entitled Nursing Home Emergency Power Plan and states that it “establishes a process for the Agency for Health Care Administration to ensure that licensees of nursing homes develop and implement plans that ensure ambient temperatures will be maintained at 80 degrees or less for a minimum of ninety-six (96) hours in the event of the loss of electrical power to a health care facility.”
Nursing homes were required to have generators but the existing rule did not specifically address fuel requirements.
Emergency Rule 58AER17-1
Emergency Rule 58AER17-1 is entitled Procedures Regarding Emergency Environmental Control for Assisted Living Facilities and states that it “establishes a process for the Department of Elder Affairs to ensure that licensees of assisted living facilities develop and implement plans that ensure ambient temperatures will be maintained at or below 80 degrees Fahrenheit or less for a minimum of ninety-six (96) hours in the event of the loss of electrical power to an assisted living facility.
The existing rule did not specifically require that assisted living facilities have generators, but maximum room temperatures were specified.
The emergency rules required compliance with the new standards by Nov. 15, 2017.
Judge's ruling
The administrative law judge found that before adoption of Emergency Rule 59AER17-1, the AHCA did not investigate whether the requirements imposed by the emergency rules were a workable solution that could address the alleged emergency described in the preamble to the emergency rules.
The judge also found that before adoption of Emergency Rule 58AER17-1, the DOEA did not consider whether it was realistic to expect that assisted living facilities could comply with the emergency rules’ requirements by Nov. 15, 2017. In addition, the DOEA had not: (a) formulated or procured any estimates regarding the cost of compliance; (b) become aware of the process and time frame for planning, permitting, procuring, and installing a commercial generator; (c) consulted with any generator suppliers to ascertain whether this increased need for generators could be satisfied by Nov. 15, 2017.
What's next?
Senate Bill 0558 has been filed and would require generators, and require a 96-hour supply of fuel be maintained by most health care facilities in the state.
In addition, House Bill 0479 would require generators with fuel sufficient for five days, and specifies inspections by the AHCA.
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We anticipate that these bills or similar legislation will have wide support. If you operate a health care facility as defined in Section 408.802, you should pay close attention to this process.
For more information, or if you have questions, please contact any member of our health care law or government affairs legal teams.
